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 People with Disabilities Making Independent Living a Reality

Sandusky Case Update

Update on the Sandusky Curbcut Case

November 8, 2001

The Honorable Ralph F. Boyd, Jr.
Assistant Attorney General
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, D.C. 20035-6738

Dear Attorney Boyd:

The National Council on Disability (NCD) commends you and the U.S.; Department of Justice Civil Rights Division staff for your recent leadership and vigorous defense of disability rights as amicus curiae in The Ability Center of Greater Toledo, et al. v. The City of Sandusky, et al. , No. 3:99CV755. NCD, an independent federal agency composed of 15 members appointed by the President and confirmed by the Senate, is responsible for advising on the implementation, impact and effectiveness of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA).

Pursuant to its statutory mandate, 29 U.S.C. § 781 (1994), the agency is charged with reviewing federal laws, regulations, programs, and policies affecting people with disabilities, and making recommendations to the President, the Congress, and other federal officials and entities. Since passage of the ADA, NCD has remained actively involved in monitoring its impact and advising federal entities on policy issues.

The Department's amicus brief aptly distinguishes the nature of the disability discrimination, which is the cause of action in City of Sandusky, from the discrimination based on national origin at issue in Alexander v. Sandoval, 531 U.S. 1049, 121 S.Ct. 1511 (2001). The respondent in City of Sandusky attempts to use the Sandoval decision to deny a private right of action to enforce certain regulatory provisions for title II of the ADA and section 504 of the Rehabilitation Act.

Although modeled to some degree on language in Title VI of the Civil Rights Act of 1964, title II of the ADA and section 504 of the Rehabilitation Act differ from Title VI in significant ways. The Department's brief explicates the statutory basis and legal precedent for the cause of action under title II in City of Sandusky, and argues compellingly for limiting the scope of the Sandoval decision.

NCD encourages your continuing leadership in asserting that the prohibition of discrimination on the basis of disability necessarily encompasses various forms of discrimination that go beyond intentional discrimination. One can also conclude that the Sandoval analysis does not apply to titles I and III of the ADA nor to the Individuals with Disabilities Education Act (IDEA), since these statutory provisions contain an explicit private right of action and specify the types of discrimination they prohibit, including some forms of discrimination that go beyond intentional discrimination.[1] Unlike in Title VI of the Civil Rights Act of 1964, the Supreme Court reasonably could not declare that these statutes only prohibit intentional discrimination. Although not addressed in your amicus brief, NCD further encourages the Department of Justice to assert and defend the existence of a right of action under 42 U.S.C. § 1983 for plaintiffs to protect "federal rights" created under disparate impact regulations, where challenged discrimination is "under color of state law."[2]

Once again we congratulate you and your staff on your proactive response and well-reasoned stance on the issues at bar in City of Sandusky . We would be happy to share information explaining our reasoning and authorities for any of the above propositions with you, your colleagues or staff. Please feel free to contact our General Counsel, Jeffrey Rosen at 202 272-2124 or a jrosen@ncd.gov.

Sincerely,

Marca Bristo
Chairperson

cc: Jeffrey T. Rosen
John L. Wodatch

__________

1. See, e.g., National Council on Disability, The Sandoval Ruling, analyzing the decision and its implications for disability rights laws (August 17, 2001).

2. 42 U.S.C. § 1983, "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and its laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...."