Spending Clause View of Justice Scalia

In a unanimous decision, the U.S. Supreme Court held that punitive damages are not recoverable in cases under Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1974.

Both prohibit discrimination based on disability, the ADA as to public entities and 504 as to recipients of federal funds. Barnes v. Gorman, 2002 WL 1305773 (June 17, 2002). The relatively non-controversial result is overshadowed by the continuing split on the Court related to enforcing federal rights, particularly Justice Scalia's discussion of the Spending Clause, which may foreshadow his position when Westside Mothers or its progeny reaches the Court.

Plaintiff was a paraplegic who also required use of a catheter and a urine bag. He was arrested as a result of an altercation in a bar. When the police van could not accommodate his wheelchair. he was placed in the van and strapped down with a seat belt. During the trip he was thrown to the floor, and suffered several serious injuries. He sued under the ADA and 504; the jury awarded $1 million in compensatory damages and $1.2 million in punitive damages. The district Court vacated the punitive damages, but the Eighth Circuit reversed and reinstated them.

Both Title II and Section 504 are enforced under the procedures of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Title VI, the Court acknowledges, has been found to have an implied private right of action. The Court had recognized the traditional presumption in favor of any appropriate relief for violation of a federal right"., but never decided the scope of "appropriate relief." Justice Scalia, writing for the Court then enters a discussion of the nature of the Spending Power "as in the nature of"a contract, citing Pennhurst I, 451 U.S.1 (1981), From this he goes on to state that "a recipient may be held liable to third party beneficiaries for intentional conduct that violates the clear terms of the relevant statute. but not for its failure to comply with vague language describing the objectives of the statute,. . . and if the statute implies that only violations brought to the attention of an official with power to correct them are actionable, not for conduct unknown to any such official".

These quotations offer fuel for arguments that seek to impose limits on recovery to cases (a) of "intentional conduct" (b) where a violation is of a clear term of the statute, and (c) if the statute implies liability limited to matters brought to the attention of an official, only if that knowledge is shown. The reference to intentional conduct is particularly vague: does it mean an act intentionally done or one with intent to discriminate, a much harder standard to prove. Further, despite the conservative majorities aversion to implying Congressional intentions, see Hagan v. Sandoval, 532 U.S. 275 (2001), Justice Scalia indicates a willingness to imply a severe limitation on traditional remedies in federal court.

Scalia then continues the contract analogy by relying on the absence of punitive damages for breach of contract. The remedy of compensatory damages is what is appropriate, because it compensates the "third-party beneficiary" for the loss it suffered. Justice Stevens' concurring opinion is quite rightly concerned that all this language about contracts is to lay the groundwork for a holding similar to that in the District Court in Westside Mothers v. Haveman, 133 F. Supp. 2d 549 (ED Mich. 2001), rev'd 289 F. 3d 852 (6th Cir. 2002). His comments that the "Court's novel reliance on what had been, at most, a useful; analogy to contract law has potentially far-reaching consequences. . . ."

This remark had some success in limiting potential damage. Justice Scalia responds that "[w]e do not imply, for example, that suits under Spending Clause legislation are suits in contract [the Westside Mothers District Court rationale], or that contract-law principles apply to all issues that they raise."

This exchange sets off the great Chicken-Little war. Justice Scalia describes as a "Chicken-Little statement" Justice Stevens' comment on the potential far-reaching effects of the Scalia opinion. Justice Stevens responds: "I am not persuaded that "Chicken-Little," ibid., is an appropriate characterization of judicial restraint; it is, however, a rhetorical device appropriately used by fearless crusaders."

Justice Scalia retorts: "we surely do not deserve his praise that we are fearless crusaders'." For those unfamiliar with the rich literature of Chicken-Little, see the accompanying box, researched and written by Diana Lesmez, NSCLC Administrative Assistant.
 

The Tale of Chicken Little  Chicken Little wanders through the woods when an acorn suddenly falls on her head. Panicked, she naively becomes convinced that the sky is falling and sets off for the King's palace to warn him of the impending doom. Along the way, Chicken Little sounds the alarm to her feathered friends-all of whom eagerly believe her. Eventually, a fox lures the group into a trap by promising to show them a short cut to the palace. However, just before the fox can gobble up Chicken Little and her many gullible friends, the King's hunting dogs chase the predator away. The King then gives an umbrella to Chicken Little, who from that day on never leaves home without it. And if an acorn should happen to fall on her again, Chicken Little is now happily undaunted, even oblivious to it.