Fifth Indifference: Clarifying the Fifth Circuit's Intent Standard For Damages Under Title II of the Americans with Disabilities Act

Texas A&M Law Review Arguendo Vol. 7, 2019

13 Pages Posted: 5 Jan 2021

Date Written: December 1, 2019

Abstract

The Americans with Disabilities Act prohibits discrimination against people with disabilities. Title II of the ADA applies to public entities. That same Title allows plaintiffs to obtain damages upon a showing that the discrimination was intentional. There are generally two possible standards of intent: (1) deliberate indifference or (2) animus. While most Circuit Courts expressly adopted the deliberate indifference model, the Fifth Circuit has not. Indeed, the Fifth Circuit has not adopted any standard and this has led to confusion. The confusion is not helped, moreover, by the sheer lack of justification offered by a number of the Circuit Courts who have adopted either standard. This Essay seeks to clear that confusion. It offers reasons why deliberate indifference, and not the animus standard, should apply to ADA Title II claims. Further, it explains why no Fifth Circuit precedent should be construed as prohibiting the adoption of the deliberate indifference standard.

Suggested Citation

Warden, Derek, Fifth Indifference: Clarifying the Fifth Circuit's Intent Standard For Damages Under Title II of the Americans with Disabilities Act (December 1, 2019). Texas A&M Law Review Arguendo Vol. 7, 2019, Available at SSRN: https://ssrn.com/abstract=3730777

Derek Warden (Contact Author)

Louisiana Supreme Court ( email )

400 Royal Street
New Orleans, LA 70130
United States

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