In an article published by the Council of Parent Attorneys and Advocates on June 28, 2022, BGL partner Eve Hill discussed recent decisions issued by the Supreme Court of the United States that have disability rights advocates across the nation on high alert. Specifically, the article – entitled, “New USSC decisions related to Section 504 and federal funding raise alarm bells” – examines the Supreme Court’s opinions in Cummings v. Premier Rehab Keller and Carson v. Makin.
In Cummings, the Court held that victims of discrimination in violation of Section 504 of the Rehabilitation Act (which requires schools to provide students with disabilities an equal opportunity to participate in services, programs, and activities) cannot recover damages for their emotional distress. This severely limits the remedies available to those who are subject to disability-based discrimination, allowing them only to seek the kinds of damages generally recognized for breaches of contract – like out-of-pocket expenses or lost profit. Obviously, these damages are not the primary harm experienced by such victims.
In Carson, the Court held that when a state provides funding to private schools to offer a public education, it is obligated to give the same funding to religious schools offering explicitly religious instruction. Per the Court’s opinion, to withhold funding from religious schools teaching religion violates the Constitution’s Free Exercise Clause. While state education funding contains explicit anti-discrimination requirements through Section 504 because it is allocated from the federal government, providing the funding to the parents of disabled children to use at private schools may break the chain of federal anti-discrimination requirements. Non-religious schools are still covered by the ADA’s nondiscrimination requirements and by state laws, but religious private schools are exempt from such laws. Thus, the federal funding obligations are the only mechanism for holding religious schools to critical disability nondiscrimination obligations.
While the current landscape may seem grim, not all hope is lost. A 1984 Supreme Court ruling in Grove City College v. Bell held that the colleges and universities where students use federal funds are recipients of federal financial assistance. As indirect recipients of federal funding, they are therefore required to comply with the associated anti-discrimination requirements. This ruling still applies today and can be used to argue religious schools are legally mandated to comply with anti-discrimination statutes, like Section 504.
LEARN MORE ABOUT EVE HILL
Partner Eve Hill’s record of dedication to a wide range of civil rights cases has earned her recognition as one of the country’s leading disability rights attorneys. Her practice is dedicated to high-impact litigation on behalf of individuals with disabilities, and individuals, organizations, and agencies alike frequently tap into her wealth of knowledge to advocate on their behalf. Eve also co-leads Inclusivity, BGL’s Strategic Consulting Group that works to help public and private sector organizations and industry groups navigate the rapidly changing landscape of disability and civil rights. Prior to joining BGL, Eve served as Deputy Assistant Attorney General of the U.S. Department of Justice for six years.