When the justices meet for their “long” conference on September 24, one of the cases before them will be Multnomah County, Oregon v. Updike, in which they have been asked to weigh in on the level of discriminatory intent required to award compensatory damages under the Americans with Disabilities Act and the Rehabilitation Act.
The case arose after David Updike – whom Multnomah County describes as a “frequent visitor to county jails in Oregon” – spent two nights in a county jail after his arrest in January 2013. Updike, who is deaf, says that he asked for an American Sign Language interpreter but never received one, prompting him to file a lawsuit in federal district court alleging that the county had violated his rights under the Americans with Disabilities Act and the Rehabilitation Act.
The district court ruled for the county, concluding that the county did not intentionally discriminate against Updike – a requirement for Updike to receive damages – because it had made other efforts to accommodate Updike’s disability. But the U.S. Court of Appeals for the 9th Circuit reversed, finding that courts can infer that a public entity intended to discriminate when it failed to honor an individual’s preference, and therefore was deliberately indifferent to the individual’s request.
Multnomah County filed a petition for review, arguing (among other things) that the federal courts of appeals are divided on the kind of intent that must be shown for a plaintiff to recover damages under the ADA and Rehabilitation Act. Some other courts of appeals, the county contended, would have required Updike to show that the county acted with animus or ill will, while it would be enough for five other courts of appeals (including the 9th Circuit) that the county was deliberately indifferent to Updike’s request to have an ASL interpreter. Moreover, the county adds, if the 9th Circuit’s decision is allowed to stand, “cash-strapped local governments will automatically be required to proceed to a jury trial” “to defend a successful accommodation simply because it was not the plaintiff’s first-choice.”
Updike urged the court to deny review, telling the justices that there is actually no real division among the courts of appeals on the kind of discriminatory intent required to obtain damages. In particular, he contended, none of the courts of appeals would have required him to show animus; moreover, the Supreme Court has long made clear that, for cases arising under statutes (like the Rehabilitation Act) that rely on Congress’s Spending Clause authority, “a showing of deliberate indifference is sufficient for compensatory damages.”
The justices are scheduled to consider the case at their private conference on September 24, 2018. For the past few years, the justices have released grants from their “long” conference on the following Thursday; assuming that they continue to follow that practice, we could hear whether they will take up this case as soon as Thursday, September 27.