Academic journal article The Review of Litigation

The ADA and Section 1983: Walking Hand in Hand

Academic journal article The Review of Litigation

The ADA and Section 1983: Walking Hand in Hand

Article excerpt

I. Introduction

The federal courts have shown a discernable trend in recent years to make civil rights cases more difficult to litigate and problematic on appeal even when successful at trial level. Doctrines of qualified ("good faith") immunity, interlocutory appeals from the denial of qualified immunity, municipal immunity, and sovereign immunity all coalesce to make traditional civil rights actions ever more troublesome.[1]

People with mental disabilities face an even greater hurdle in traditional (sec) 1983[2] cases because the United States Supreme Court has refused to accord them equal protection status any greater than that which attends to people in general.[3] Despite the horrible history of maltreatment, segregation, and isolation of the mentally disabled at the hands of majority society, discrimination against people with mental disabilities, remarkably enough, does not even rise to middletier equal protection constitutional scrutiny.[4]

However, the Americans with Disabilities Act (ADA),[5] enacted in 1990, does offer an alternative vehicle for vindicating the rights of people with physical, developmental, and mental disabilities beyond that accorded by (sec) 1983, the traditional civil rights statute. In a real sense, the ADA the most comprehensive civil rights law passed by Congress provides relief in a great number of situations in which (sec) 1983 does not.

This Article offers examples of situations in which the ADA fills a void left by (sec) 1983 decisional law. The examples are just that; they do not, by any means, comprise a comprehensive list but rather suggest possibilities to the practitioner, advocate, and court. This Article also shows how, in some situations, (sec) 1983 and the ADA go hand-in-hand to make a stronger lawsuit and how at times the ADA can inform (sec) 1983 standards. The examples here point toward the direction in which careful and creative litigation in the civil rights arena is moving and where it may potentially go in the future.

II. Doctrines of Difficulty in 1983 Actions

There are five major impediments to success in typical (sec) 1983 litigation: qualified (good faith) immunity; interlocutory appeals from the denial of qualified immunity; sovereign immunity; municipal immunity; and, in the 5th Circuit, the court's propensity to review factual situations, a realm once left to the trial court. A quick overview of these immunities and practices demonstrates the pitfalls of 1983 actions and illustrates how the ADA surmounts these roadblocks in many instances.

A. Qualified (Good Faith) Immunity

Qualified immunity comes into play when a public official claims to have acted in an objectively reasonable fashion and the law under which the official operated at the time was not well settled or clearly established.[6] This is not to say that the official's conduct itself was reasonable but only that the official arrived at the conduct he or she did in a not-unreasonable fashion.[7] This test obviously serves to make the civil rights plaintiff's burden almost insurmountable. Most qualified immunity cases tend to revolve around attempts to measure objective good faith. As a practical matter, officials almost always secure qualified immunity, either from the trial court or the appellate tribunal. Only the most flagrant and shocking conduct will defeat qualified immunity; merely "stupid" actions are insufficient.[8]

B. Interlocutory Appeal

The United States Supreme Court has created an interlocutory appellate mechanism to review the denial of summary judgment in favor of qualified immunity for an official.[9] This saves an official the time and expense of mounting a defense and allows her to perform public duties without constantly having to look over her shoulder and worry about liability for every action taken. On the other hand, an interlocutory appeal puts the plaintiff in a bind because it delays the litigation for months, if not a year or two, and may require the plaintiff to overcome an immunity claim without being able to complete any more than perfunctory discovery. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.