Monetary Damages for Disability Discrimination: The First Step Towards Protecting the Right to Equal Access to Education

In the United States, access to a free public education is a right granted to all students, including students with disabilities. Specifically, Section 504 of the Rehabilitation Act (1973) prevents any disabled individual from being discriminated against in federally-funded programs, including public schools. [1] Likewise, the Individuals with Disabilities Education Act (IDEA) of 1990 endows disabled children with the right to a quality public education by requiring  schools to provide disabled children with accommodations and support services. [2] Although children who suffer traumatic brain injuries (TBI) are guaranteed that same right under Section 504 and IDEA, legal precedent regarding the intersection of TBI and education is scarce. These circumstances leave students with TBI without full access to education. This limited precedent likely stems from the inability for plaintiffs to be awarded monetary damages and attorney fees in disability legal cases, including those covered by Section 504 and IDEA. [3] Pending U.S. Supreme Court case Cummings v. Premier Rehab Keller provides an opportunity to remedy this inaccessibility. Considering the clear stakes of the Cummings case, in addition to relevant precedent, the Court should rule in favor of Cummings and allow for emotional damages under related disability laws; in return, students with TBI will truly gain equal access to education. 

Education cases related to TBI are infrequently litigated, necessitating further analysis of barriers to legal remedies for disabled students, particularly those with TBI. Every year, approximately 700,000 children between the ages of zero and nineteen suffer from TBI, but less than 18 percent of them receive, or are even identified as needing, the special education services they are eligible for under IDEA. [4] TBI is often misidentified as another disability, leading to an incorrect assessment and analysis of the student’s need for academic accommodations; one study found that only 40 percent of students with TBI who received special education services were correctly identified under the disability category of TBI. [5] Incorrect identification of students with TBI hinders their educational progress because, for students with this disability to fully participate in school, specific special education services are required. The incorrect identification of this disability leads to few cases being brought to court. 

Additionally, restrictions on monetary damages and attorney fees available under the existing disability law corpus, which will be enumerated, hinder disabled students from realizing their right to education. Upcoming U.S. Supreme Court case Cummings v. Premier Rehab Keller has the potential to increase remedies available to students with TBI by considering the legality of awarding monetary penalties in disability legal proceedings. Citing the Americans with Disabilities Act (ADA) and other similar public health acts, Jane Cummings, who was born deaf and is legally blind, is suing physical therapy provider Premier Rehab Keller for emotional damages after being repeatedly denied an ASL interpreter at her therapy sessions. Specifically, Cummings contends these damages are available under Title VI of the Civil Rights Act, Section 504 of the Rehabilitation Act, and the Patient Protection and Affordable Care Act. [6] Both the U.S. District Court for the Northern District of Texas and The Court of Appeals for the Fifth Circuit ruled in favor of respondent Premier Rehab Keller by asserting that damages are not available under these three laws. [7] While none of these laws incorporate compensatory monetary damages in discrimination cases, it is significant that none of them explicitly prohibits that damages be awarded, as the Americans with Disabilities Act (ADA) (1990) does. [8] Similarly to IDEA cases, precedent has been split over whether monetary damages are available under Section 504 of the Rehabilitation Act, which also extends to public education protections. Ruling in favor of Cummings would make monetary damages available under Section 504. This precedent would increase the desirability of trying public education disability cases because Section 504 could be applied to seek monetary damages in education, encouraging more families and students to seek redress.

Beyond the positive implications of the Court ruling in Cummings’ favor, the precedent set by Aikins v. St. Helena Hospital (1994) supports a ruling in favor of Cummings. Plaintiffs Elaine Aikins, who is deaf, and California Association of the Deaf sued St. Helena Hospital and Dr. James Lies for failure to provide interpreter services during her husband’s treatment. The U.S. District Court for the Northern District of California ruled that Aikins was not entitled to compensatory damages under the ADA, but that she was entitled to monetary damages under the Rehabilitation Act. [9] Damages are therefore available under Section 504 of the Rehabilitation Act, even if they are not available under the ADA. This precedent supports the Court ruling in favor of Cummings through its assertion that monetary damages do exist under Section 504, one of the disability laws Cummings is suing under. 

Two years after the Aikins ruling, Moreno v. Consolidated Rail Corporation (1996) reinforced the availability of monetary damages under the Rehabilitation Act. Charles Moreno, who suffers from diabetes mellitus, sued his employer Conrail under Section 504 of the Rehabilitation Act after being terminated due to his medically necessary irregular meal breaks and shifts. [10]  The District Court for the East District ruled in favor of Moreno and awarded him $62,536 for lost wages and benefits, $125,000 for emotional distress, and $1,312,752 in punitive damages. [11] The U.S. Court of Appeals for the Sixth Circuit affirmed this ruling. [12] In this instance, Section 504 was applied to Moreno’s employment rights, enabling him to seek monetary damages, including emotional damages. While not a Supreme Court case, this precedent stands and reinforces the Supreme Court ruling in favor of Cummings. Additionally, by citing Section 504, the Cummings ruling has the potential to immediately make legal remedies available to students with TBIs receiving 504 plans. The Cummings ruling would not immediately impact students with TBIs receiving IEPs under IDEA; however, this case serves as a potential model to pursue the extension of monetary damages to IDEA which, similarly to Section 504, does not explicitly prohibit awarding damages. 

While the Court’s decision in Cummings could catalyze pursuing disability education cases through monetary damages, attorney fee restrictions still discourage low to middle income families from hiring representation, thereby discouraging them from filing a complaint. Though the case is not concerned with Section 504 or IDEA, Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources (2001) provides notable precedent which deters attorneys from taking on Section 504 and/or IDEA cases. In Buckhannon, petitioner Buckhannon Board and Care Home failed its fire marshal inspection because some residents were incapable of “self-preservation.” The company sued the State, arguing that the “self-preservation” violated the Fair Housing Amendments Act (1988) and the ADA, and the state legislature then rescinded the self-preservation requirement. [13] As the prevailing party, Buckhannon sought attorney’s fees; however, none were awarded because the lawsuit provided the petitioner relief— the recission of the requirement— before the Court issued a ruling. This legal rationale is called the Catalyst Theory, which concerns itself with whether the lawsuit itself brings about voluntary change in conduct. In this case, the lawsuit did. [14] The potential for the lack of attorney fees removes a monetary incentive for attorneys to take on Section 504 and IDEA cases, which in particular excludes low income families from pursuing litigation. Given this context, future litigation or legislative change is necessitated. However, should the Court rule in favor of Cummings, the possibility of monetary damages is a start at ensuring more disability education cases are pursued. 

The Supreme Court ruling in favor of Cummings is one small, but necessary, step in improving educational conditions for students with TBI. Precedent clearly demonstrates emotional damages are available under Section 504 of the Rehabilitation Act, if not under other disability laws. Thus, the decision to rule in favor of the petitioner is well supported and vital. Making damages available under Section 504 would immediately provide students with 504 plans an avenue to seek legal redress. Attorney’s fee issues remain, making it critically important to allow attorney’s fees under IDEA and the Rehabilitation Act and revocation of the law forbidding attorney’s fees under the ADA. In the meantime, policy initiatives are filling the void. In Pennsylvania, Colorado, and Oregon, the policy BrainSTEPS has been passed to assist students with TBI with their reintegration into school. [15] It provides a comprehensive re-entry plan and support for students, parents, and educators which fills a void currently left by legal precedent and legislative inconsistencies. [16] Still, if individuals around the country are already fighting for this policy and awareness increases about the gaps in the IDEA, children with TBI can have more hope and success upon school re-entry.

Edited by Katy Brennan

Endnotes:

[1] Rehabilitation Act, § 504 (1973), https://www.dol.gov/agencies/oasam/centers-offices/civil-rights-center/statutes/section-504-rehabilitation-act-of-1973.

[2] Individuals with Disabilities Education Act, Pub. L. No. 101-336, § 1400(c)(1), 104 Stat. 328 (1990), ​​https://sites.ed.gov/idea/statute-chapter-33/subchapter-i/1400/c/1. 

[3] Policy Brief Series: Righting the Americans with Disabilities Act - No. 17, The Supreme Court's Rejection of the "Catalyst Theory" in the Awarding of Attorney's Fees and Litigation Costs, National Council on Disability (2003), online at https://ncd.gov/publications/2003/June162003 (visited August 10, 2021). 

[4] Deborah Ettel, Ann E. Glang, Bonnie Todis, and Susan C. Davies, "Traumatic brain injury: Persistent misconceptions and knowledge gaps among educators," 26 Exceptionality Education International 1, 3 (2016).

[5] Id.

[6] Jane Cummings v. Premier Rehab Keller, (5th Cir. 2020). 

[7] Id.

[8] Aikins v. St. Helena Hospital, 873 F. Supp. 1329, (1994). 

[9] Id.

[10] Charles Moreno v. Consolidated Rail Corporation, 909 F. Supp. 480, (6th Cir. 1996). 

[11] Id.

[12] Id.

[13] Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health and Human Resources, 532 US 598 (4th Cir 2001).

[14] Id.

[15] Welcome to BrainSTEPS, BrainSTEPS, online at https://www.brainsteps.net/default.aspx#about,  (visited July 31, 2021) .

[16] Id.