Title II of the ADA Prohibits – and Provides a Private Right of Action to Challenge – Failure to Accommodate, Disparate Impact, Architectural Barriers, and Other Potentially Unintentional Discrimination.
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I. Introduction
The text of the Americans with Disabilities Act of 1990 (“ADA”)[1] makes clear that Section 12132 of that statute[2] – which prohibits disability discrimination by public entities such as state and local government agencies – applies to and prohibits many forms of unintentional discrimination, including failure to make reasonable modifications to policies, failure to ensure that newly constructed and altered facilities are accessible to disabled people, failure to provide services in an integrated setting, and use of methods of administration that have the effect of discriminating against disabled people. This clear textual interpretation is supported by the ADA’s legislative history and 40 years of Supreme Court and circuit court precedent interpreting Section 12132 and the statute on which it was modeled, Section 504 of the Rehabilitation Act of 1973 (“Section 504”).[3]
In recent concurrences, two Sixth Circuit judges have stated their views that Section 12132 of the ADA prohibits only intentional discrimination. In his August, 2025, concurrence in Reinhart v. City of Birmingham, Michigan, Judge Chad Readler takes the position that the text of Section 12132 “protects against intentional discrimination only.”[4] He further asserts that the reasoning in the 2001 Supreme Court case of Alexander v. Sandoval[5] requires the conclusion that there is no private right of action to challenge much of the discrimination prohibited by the Department of Justice regulations implementing Section 12132,[6] including – in that case – the failure to ensure that alterations to physical facilities are accessible to disabled people.[7]
Judge Eric Murphy, in his January, 2026, concurrence in Booth v. Lazzara, agrees with Judge Readler that Section 12132 does not reach unintentional discrimination and therefore, he concludes, does not require reasonable accommodations in neutral policies.[8] He does not address the question whether a private right of action exists to enforce the implementing regulations.
This post explains the flaws in the research and reasoning in these two concurrences. Part II is an overview of the two opinions and the controlling Sixth Circuit precedent that should have stopped them both at the draft stage. Part III describes the history, text, and structure of the Americans with Disabilities Act. Part IV explains the significance of the fact that the statutory text of the ADA incorporates earlier regulations and standards. The next three parts demonstrate that the Concurrences ignore three important sources of textual interpretation: the whole-text canon (Part V); legislative history (Part VI); and 40 years of Supreme Court and circuit precedent (Part VII). Finally, Part VIII explains where the Reinhart Concurrence went wrong in urging that there is no private right of action to enforce regulations implementing Title II.
Ultimately, rather than consider or even cite to the multiple, clear provisions of the statutory language of the ADA instructing how to interpret Section 12132, the two concurrences read into the language of Section 12132 the word “intent,” which does not appear anywhere in that provision, in the ADA’s explicit rule of construction, or in the detailed – statutorily incorporated – regulations, guidelines, and standards, many of which prohibit a good deal of potentially unintentional discrimination including, for example, failure to make reasonable accommodations and failure to build and alter physical facilities to be accessible to disabled people.
Through this post, I urge that courts reject this misguided approach, and I hope to provide a toolkit for litigators countering these and similar arguments.
II. Setting the Stage: Reinhart, Booth, and Ability Center.
The concurrences in Reinhart and Booth faced a headwind of Sixth Circuit precedent directly contrary to their arguments. In Ability Center of Greater Toledo v. City of Sandusky, that court held that Section 12132 required new and altered public facilities to be accessible.[9] The Ability Center court then analyzed the regulations enforcing Section 12132 – specifically 28 C.F.R. § 35.151, requiring accessible public facilities – in light of the Supreme Court’s holding in Sandoval that “a private plaintiff cannot enforce a regulation through a private cause of action generally available under the controlling statute if the regulation imposes an obligation or prohibition that is not imposed generally by the controlling statute.”[10] The Ability Center court concluded that Section 35.151 “effectuates a mandate of Title II and is therefore enforceable through the private cause of action available under the statute.”[11]
The plaintiff in Reinhart v. City of Birmingham had a mobility disability that made it difficult to walk. He challenged measures taken by the city that decreased accessible on-street parking under Section 35.151, the same regulation at issue in Ability Center. The court’s decision noted that, based on Ability Center, the plaintiff had a private right of action to enforce this regulation but went on to hold that there was no discrimination on the basis of disability, as parking in the challenged area had been reduced for everyone, disabled and non-disabled.[12] The decision also held that the plaintiff had not established his separate claim for intentional discrimination.[13]
Judge Readler joined the decision, but also wrote separately and at length to explain his disagreement with Ability Center and his views that: (1) Section 12132 prohibits only intentional discrimination; and thus that (2) any of the implementing regulations – such as Section 35.151 – that prohibit ostensibly unintentional discrimination are not enforceable through a private right of action.
The plaintiff in Booth v. Lazzara was the administrator of the estate of a disabled person who had been killed in an encounter with the police while suffering a mental health crisis. The plaintiff alleged, among other claims, that the police had violated Section 12132 by failing to accommodate the decedent’s disability in the process of taking him into custody.[14] Judge Murphy wrote for the court and also wrote a concurrence. The opinion of the court noted that Section 12132 “sometimes requires governments to make ‘reasonable accommodation[s]’ to [their] policies,” but ultimately held that the plaintiff “[had] not identified a reasonable accommodation as a matter of law.”[15]
In his concurrence, however, Judge Murphy stated that he did not see “how § 12132’s text imposes” a requirement of reasonable accommodations to general policies.[16] The Booth Concurrence largely tracks the arguments set forth in the Reinhart Concurrence in arriving at these conclusions; it did not, however, address the question of a private right of action to enforce the regulations.
III. History, Text, and Structure of the ADA[17]
A bit of background will be helpful to understanding where these two concurrences went wrong.
A. History
In 1973, Congress passed the Rehabilitation Act. Section 504 of that statute contained the landmark prohibition on disability discrimination by recipients of federal funding.[18] Although Section 504 did not contain an express delegation of rulemaking authority, the first regulations implementing Section 504 were promulgated by the (then) Department of Health, Education, and Welfare (“HEW”) on May 4, 1977.[19] In 1978, pursuant to Executive Order 11914,[20] HEW issued an additional set of regulations that were to “provide for consistent governmentwide enforcement of section 504” (the “HEW Coordination Regulations”).[21] These HEW Coordination Regulations – which largely tracked the original 1977 HEW regulations – provided a template for other agencies issuing Section 504 regulations prohibiting disability discrimination by their funding recipients.[22] As explained below, these 1978 HEW Coordination Regulations would become the foundation for later statutes and cases.
In 1978, Congress amended Section 504, expanding its coverage beyond recipients of federal funding to prohibit disability discrimination by federal agencies as well. The amended statutory language expressly instructed each agency to promulgate implementing regulations and to submit the regulations to the appropriate authorizing committees in Congress.[23] Following the issuance of the HEW Coordination Regulations and the 1978 statutory amendment, more than 90 agencies and other executive administrative bodies have promulgated regulations implementing Section 504 as to both the agencies themselves (“agency regulations”) and as to recipients of their funding (“recipient regulations”). All of these regulations are based on and very similar to the HEW (now Department of Justice) Coordination Regulations.[24]
The 1978 amendments to the Rehabilitation Act also specifically delegated to the Architectural and Transportation Barriers Compliance Board (“Access Board”) the authority to establish standards to implement the Architectural Barriers Act.[25] Accordingly, in 1981, the Access Board issued its Minimum Guidelines and Requirements for Accessible Design (“MGRAD”), a robust set of architectural standards drafted to ensure that covered facilities were readily accessible to and useable by disabled people.[26]
This was roughly the state of play when the ADA was enacted in 1990.
B. The Text and Structure of the ADA
1. Findings and Purpose
President George H.W. Bush signed the ADA into law on July 26, 1990. The statute’s introductory section – its “Findings and Purpose” – includes the following finding:
individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities.[27]
That is, the statute itself is grounded in the finding that “forms of discrimination” on the basis of disability include more than “outright intentional exclusion” but also a list of potentially unintentional forms of discrimination.
2. Relevant Substantive Provisions
Following this introductory language and several definition provisions, the statute has four sections: Title I governing employment;[28] Title II governing state and local public entities;[29] Title III governing public accommodations,[30] and Title IV, “Miscellaneous Provisions,” which applies to the entire statute.[31]
Section 12132 of Title II sets forth the prohibition on disability discrimination by state and local public entities:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.[32]
Although Section 12132 itself does not list the activities that will be considered prohibited discrimination, Sections 12134, 12201, and 12204 of the statute explicitly incorporate detailed regulations and standards that define the actions, inactions, and physical and communications barriers that constitute prohibited discrimination under Section 12132.
Perhaps most important and dispositive, Section 12201(a) of the ADA – contained in the Miscellaneous Provisions applicable to the statute as a whole – is entitled “Construction” and directs that, unless otherwise provided, “nothing in [the ADA] shall be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issued by Federal agencies pursuant to such title.”[33] That is, Congress instructs – in statutory text – that the ADA must be interpreted to address all the forms of discrimination addressed in Section 504 and all of its implementing regulations.
This required construction finds further support in Section 12134(a) of Title II which directs the Department of Justice (“DOJ”) to issue regulations implementing Section 12132, and Section 12134(b), which directs that these regulations be consistent with two specific, existing sets of regulations implementing Section 504:
Except for “program accessibility, existing facilities”, and “communications”, regulations under subsection [12134](a) shall be consistent with this chapter and with the [HEW Coordination Regulations]. With respect to “program accessibility, existing facilities”, and “communications”, such regulations shall be consistent with regulations and analysis as in [the DOJ Section 504 agency regulations].[34]
That is, the statutory language explicitly incorporates the DOJ Section 504 regulations with respect to communications and physical access and the HEW Coordination Regulation for the rest.
Section 12134(c) further instructs that the Title II regulations are to “include standards applicable to facilities and vehicles covered by this part [including 12132] [that are] consistent with” guidelines the statute requires to be issued by the Access Board pursuant to Section 12204(a).[35]
Finally, Section 12204(a) of the ADA instructs the Access Board to “issue minimum guidelines that shall supplement the existing [MGRAD] for purposes of” Titles II and III of the ADA.[36] These guidelines are to “establish additional requirements, consistent with this chapter, to ensure that buildings, facilities, rail passenger cars, and vehicles are accessible, in terms of architecture and design, transportation, and communication, to individuals with disabilities.”[37]
3. Remedies
The remedies provision of Title II incorporates by reference the remedies provision applicable to Section 504, which in turn incorporates by reference the remedies of Title VI of the Civil Rights Act of 1964 (“Title VI”).
Title II’s remedies provision, set forth in Section 12133, reads:
The remedies, procedures, and rights set forth in section 794a of Title 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title.[38]
Section 794a of Title 29 is Section 505 of the Rehabilitation Act and, as the numerical sequence suggests, is separate from but immediately follows Section 504. Section 505(a)(2) reads:
The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) . . . shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under [Section 504].[39]
Title VI, which prohibits discrimination based on race, color, or national origin by recipients of federal funding,[40] does not have specific enforcement or remedies language but, in 1979, the Supreme Court recognized an inferred private right of action to enforce that statute.[41] Given that Section 505 incorporates by reference Title VI’s remedies, and 12133 incorporates Section 505’s, it is not surprising that the Supreme Court has consistently recognized a private right of action to enforce both Section 12132 and Section 504.[42]
IV. The Incorporation of Section 504 Regulations Into the ADA Gives Them the Status of Law.
A. Regulations
The regulations and standards incorporated by reference into Section 12132 include a number that prohibit discrimination that can be characterized as unintentional, including provisions:
- Prohibiting the use of criteria or methods of administration that have a discriminatory effect;[43]
- Requiring that programs and activities be administered in “the most integrated setting appropriate;”[44]
- Requiring covered entities to provide auxiliary aids and services necessary to ensure effective communication, giving primary consideration to the request of the disabled person;[45]
- Requiring new construction and alterations to be readily accessible to and useable by disabled people and providing detailed accessibility standards;[46] and
- With respect to existing facilities, requiring covered entities to operate each program so that, when viewed in its entirety, it is readily accessible to and usable by disabled persons.[47]
The right to reasonable modifications in policies, practices, and procedures where necessary to avoid discrimination did not appear in the Section 504 regulations but rather was established by the Supreme Court itself in the 1985 case of Alexander v. Choate.[48] It is reflected in the regulations implementing Section 12132 at 28 C.F.R. § 35.130(b)(7)(i).
In sum, based on explicit rules of construction and incorporated regulations, Section 12132 of the ADA prohibits these and other forms of discrimination, intentional and unintentional. And, as discussed in greater detail below, because this establishes that the DOJ Title II regulations forbid only conduct that the statute also forbids, they may be enforced through a private right of action.[49]
B. Incorporation
Even before the ADA explicitly incorporated the Section 504 regulations, the Supreme Court recognized that Section 504 itself incorporated the regulations HEW and later the Department of Health and Human Services (“HHS”)[50] had promulgated to enforce its requirements. In the earliest of these cases, Consolidated Rail Corporation v. Darrone, the Supreme Court stated that, in passing the 1978 amendments to the Rehabilitation Act, “Congress incorporated the substance of [HEW’s] regulations into the statute.”[51] Three years later, in School Board of Nassau County, Florida v. Arline, the Court stated, “[a]s we have previously recognized, these [HHS Section 504] regulations were drafted with the oversight and approval of Congress . . . [and thus] provide ‘an important source of guidance on the meaning of § 504.’”[52]
This explicit incorporation of regulatory standards gives those standards the force of law. Where Congress “substantially incorporate[s] into the statute the [relevant] administrative practice . . . [i]t thus became an express congressional definition” of that practice.[53] The Third Circuit applied this principle in the context of the Title II regulations in Helen L. v. DiDario, holding:
[B]ecause Congress mandated that the ADA regulations be patterned after the section 504 coordination regulations, the former regulations have the force of law. When Congress re-enacts a statute and voices its approval of an administrative interpretation of that statute, that interpretation acquires the force of law and courts are bound by the regulation.[54]
The Tenth and Eleventh Circuits have followed suit, with the latter court holding that “Congress expressly authorized the Attorney General to make rules with the force of law interpreting and implementing the ADA provisions generally applicable to public services.”[55]
C. Legislation and Reenactment Against a Backdrop of Judicial and Regulatory Interpretation.
Even when it does not expressly incorporate judicial or regulatory interpretation into statutory language – as it did repeatedly throughout the ADA – Congress can effectively adopt such an interpretation through later legislation or reenactment. “[W]hen Congress ‘adopt[s] the language used in [an] earlier act,’ [the Court] presume[s] that Congress ‘adopted also the construction given by this Court to such language, and made it a part of the enactment.’”[56] The language of section 12132 is almost identical to that of section 504 and thus adopts the construction of the latter statute at the time of the ADA’s enactment, including its prohibition of both intentional and unintentional discrimination.
The Supreme Court applied this principle in the context of the ADA in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams.[57] While this case arose under a different title of the ADA – Title I, prohibiting disability discrimination in employment – Toyota addressed the definition of disability applicable to the entire statute. In relying on the definition in the Section 504 regulations, the Court held that “Congress’ repetition of a well-established term generally implies that Congress intended the term to be construed in accordance with pre-existing regulatory interpretations.”[58] The terms used in Section 12132 are almost identical to the well-established terms of Section 504; the Court’s holding in Toyota means that the former provisions should be “construed in accordance with pre-existing regulatory interpretations.”[59] In Bragdon v. Abbott, decided four years earlier, the Court had also addressed the interpretation of the definition of disability in the ADA. It held that “[w]hen administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well.”[60]
Similarly, when Congress re-enacts a statute without disavowing a well-established regulatory interpretation, it effectively adopts that interpretation into the statute. In the 1978 case of Lorillard v. Pons, for example, the Court held that “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.”[61] Interestingly, the Reinhart Concurrence cites Lorillard but omits this passage referencing “administrative . . . interpretation.”[62] That opinion also harnesses Lorillard in service of the argument that the drafters of the ADA must have known about – and imported – Title VI’s limitation to intentional discrimination. This is incorrect for reasons discussed in Section VIII below.
While Congress is generally presumed to know the law when it legislates,[63] this doctrine of legislative re-enactment is stronger where, as here, there is explicit evidence that Congress was aware of and adopted the regulatory interpretation in question.[64] It’s true that the Reinhart Concurrence expressly disavows reliance on legislative history to elicit the intent of a statute[65] – which argument I address in Section VI below – its relevance here is to Congressional awareness rather than intent.
Congress has re-enacted Section 504 on numerous occasions[66] and the ADA once[67] since their original passage, at no time calling into question the interpretation reflected in the then-applicable Section 504 and Title II regulations.[68]
Furthermore, it is clear that, during each of these re-enactments, Congress was aware of and often explicitly referenced the Section 504 regulations in legislative history. To start with, following promulgation of the initial Section 504 regulations in 1977, a House subcommittee conducted hearings on their implementation.[69] A year later, in a report discussing the re-enactment of Section 504, Congress specifically referred to the HEW Coordination Regulations and noted that, in light of these regulations, the “amendment codifie[d] existing practice as a specific statutory requirement.”[70] The report also explained that the new remedies provision was “designed to enhance the ability of handicapped individuals to assure compliance with . . . [Section 504] and the regulations promulgated thereunder.”[71] That is, as early as 1978, Congress assumed that disabled people would be able to “assure compliance” with Section 504 regulations.
As noted above, the 1978 amendment to Section 504 required each agency to issue regulations implementing that statute as it applied to the activities of the agency itself and to submit them to Congress:
The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees.[72]
Pursuant to that requirement, congressional committees have had the opportunity to review many of the regulations implementing Section 504, at least 30 such regulations prior to the passage of the ADA.[73] Congress was fully aware of the well-established regulatory interpretation of Section 504 – including its application to the potentially unintentional forms of discrimination listed above – when it drafted and enacted the ADA.
V. The Concurrences Ignore The Whole-Text Canon.
Neither Judge Readler nor Judge Murphy – textualists though they may be – cite to any of Sections 12134(b), 12134(c), 12201(b), 12201(c), 12204(a), or 12204(b) of the ADA or to the regulations that those provisions explicitly incorporate by reference: the HEW Coordination Regulations, the DOJ agency regulations, and the MGRAD. This violates the whole-text canon of statutory interpretation.
A. The Whole-Text Canon
As Justice Scalia has explained, “[s]tatutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme – because the same terminology is used elsewhere in a context that makes its meaning clear.”[74] He and his co-author stated this principle in even stronger terms in their book Reading Law: The Interpretation of Legal Texts (“Reading Law”):
Perhaps no interpretive fault is more common than the failure to follow the whole-text canon, which calls on the judicial interpreter to consider the entire text, in view of its structure and of the physical and logical relation of its many parts. Sir Edward Coke explained the canon in 1628: “[I]t is the most natural and genuine exposition of a statute to construe one part of the statute by another part of the same statute, for that best expresseth the meaning of the makers.”[75]
Chief Justice Roberts underscored the need to put a statutory provision in context in the 2015 case of King v. Burwell:
If the statutory language is plain, we must enforce it according to its terms . . .. But oftentimes the “meaning – or ambiguity – of certain words or phrases may only become evident when placed in context.” So when deciding whether the language is plain, we must read the words “in their context and with a view to their place in the overall statutory scheme.” Our duty, after all, is “to construe statutes, not isolated provisions.”[76]
The whole-text canon – and the ADA’s statutory structure – require judges to read the word “discrimination” as well as the phrases “excluded from participation” and “denied the benefits” in Section 12132 in the context of:
- the statute’s explicit “Construction” provision, requiring that the statute be interpreted to provide at least as much protection as Section 504 and all federal agency regulations enforcing Section 504;[77]
- provisions of Title II incorporating by reference specific Section 504 regulations;[78]
- the provisions of the statute instructing the Access Board to issue minimum design guidelines for purposes of Title II and then incorporating those guidelines by reference in Title II;[79]
- Title II’s definition of “qualified individual with a disability,” which presupposes “reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services;”[80] and
- the motivating “finding” that the “forms of discrimination” the entire statute was enacted to address include many beyond “outright intentional exclusion.”[81]
Scalia and Garner – in Reading Law – provide additional support for the central role of Section 12201(a) in particular – and thus all Section 504 regulations – in interpreting Section 12132: “Definition sections and interpretation clauses are to be carefully followed.”[82] Did I mention recently that Section 12201 is entitled “Construction”?
The Supreme Court explicitly recognized the power of this “Construction” provision in Bragdon v. Abbott. There, the Court addressed the question whether asymptomatic HIV fell under the ADA’s definition of disability. That is, while the case arose under Title III of the ADA, the context in which the Court applied Section 12201(a) was a definition that applied to the entire statute. The Court held that the “directive [in Section 12201(a)] requires us to construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act.”[83] Accordingly, the Court relied on the definition of disability as elaborated in regulations implementing Section 504.[84]
If the statutory text of Section 12201(a) didn’t do the trick, Bragdon should end the discussion and any further attempts to ignore the Section 504 regulations in construing Section 12132.
The en banc Fifth Circuit case of Frame v. City of Arlington provides an example of the application of Section 12201(a) in a factual context almost identical to that in Reinhart – Section 12132’s application to city sidewalks – though the case analyzed a different part of the language of Section 12132. The question at issue in Frame was whether the phrase “services, programs, or activities” in Section 12132 included city sidewalks. The Fifth Circuit held that it did: Title II and Section 504 “based on statutory text and structure . . . unambiguously extend to newly built and altered public sidewalks.”[85]
Following a detailed analysis of the language of Section 12132, establishing that – from a textual perspective – “services, programs [and] activities” included city sidewalks,[86] the court turned to Sections 12134 and 12201. The court first noted that Section 12134(b) required that Title II’s regulations be consistent with the HEW Coordination Regulations, which in turn, required new and altered facilities to be accessible.[87] This, the court concluded, “strongly suggests that Congress thought § 12132 would extend to such sidewalks.”[88] Then, citing Section 12201(a), the Frame court explained that “the ADA actually prohibits courts from construing Title II to apply a lesser standard than the Rehabilitation Act and its implementing regulations”[89] and quotes Bragdon for the proposition quoted above: that Section 12201(a) “‘requires us to construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act.’”[90]
As discussed in Section VIII below, the Frame court further held that there is a private right of action to enforce the regulations implementing Section 12132, specifically the regulations requiring new and altered facilities to be accessible to disabled people. Neither of the Sixth Circuit Concurrences under discussion cites to Frame. While this is perhaps not ultimately surprising in light of the fact that it is the decision of a sister circuit – and therefore not controlling – it remains striking that neither the majority nor the concurrence in Reinhart discusses a decision that so closely tracks that case’s underlying facts.
B. The Concurrences Ignore the Whole-Text Canon and Interpret Section 12132 Largely in Isolation.
As noted above, neither Concurrence attempts to analyze Section 12132 in the context of the whole statute. Neither opinion cites to any of Sections 12134(b), 12134(c), 12201(b), 12201(c), 12204(a), or 12204(b), each of which either contains direct instructions on the interpretation of Section 12132 or incorporates specific regulations that interpret it. In place of a whole-text analysis, the Concurrences analyze Section 12132 in isolation, looking primarily to dictionaries and, as will be explored in later sections, other statutes.
Despite the Chief Justice’s instruction that “[o]ur duty . . . is to construe statutes, not isolated provisions,”[91] the heart of the Reinhart Concurrence is a word-by-word, dictionary-based analysis of the language of Section 12132 in isolation.[92] I don’t think that language – even when read in isolation from the remainder of the statute – means what the Concurrence authors think it means; even if it did, we are not free to ignore Congress’s explicit instructions on how to construe the ADA and its incorporation of specific regulations and standards.
The Reinhart Concurrence divides Section 12132 into two clauses and analyzes each one separately. In the first, it makes much of the phrase “by reason of disability” in this passage: “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity . . ..” The opinion asserts that the highlighted phrase requires that disability be the announced reason for the challenged action and that this, in turn, requires intent. It relies on the definition of “reason” in Black’s Law Dictionary: “‘[a]n expression or statement given by way of explanation or justification; whatever is supposed or affirmed to support a conclusion, inference, or plan of action.’”[93] Though – as this post makes clear – I’m not a fan of limiting statutory interpretation to dictionaries, it’s interesting to note that the Reinhart Concurrence quotes only the first definition of “reason” in Black’s, ignoring the second: “[a] ground or cause that explains or accounts for something.” That is, “reason” does not have to be an expression or statement intentionally provided as an explanation; it may simply be the explanation itself. A wheelchair-user is excluded from an inaccessible public building by reason of their disability even if the public entity in question did not intend that result. That is, the inaccessibility explains the exclusion even if the public entity did not “express,” “state,” or “give” that explanation. Similarly with the facially neutral rule “no dogs allowed”: it explains the exclusion of a blind person with a guide dog even if, again, the author of the rule did not express or intend that result.[94]
The Reinhart Concurrence then turns to the second clause of Section 12132: “no qualified individual with a disability shall . . . be subjected to discrimination by any [public] entity.” Again, as you’re probably tired of reading by now, a number of other provisions of the ADA’s statutory language provide crucial sources for the meaning of this clause, including that it is to be construed to provide “at least as much protection as provided by the regulations implementing the Rehabilitation Act.”[95] Ignoring this statutory language, the Reinhart Concurrence once again turns to the dictionary, but this time ignores Black’s in favor of The New Oxford American Dictionary definition of the word “discriminate,” which, the judge states, “understand[s] ‘discriminate’ to require an ‘unjust or prejudicial distinction in the treatment of’ an individual on the grounds of a protected class.”[96] You might be curious why the Concurrence skipped Black’s this time. Perhaps because it includes the following definition of “discrimination”: “The effect of a law or established practice that confers privileges on a certain class or that denies privileges to a certain class because of race, age, sex, nationality, religion, or disability.”[97] That is, the definition of “discrimination” in the leading legal dictionary suggests that it includes practices with a discriminatory effect.
The Reinhart Concurrence also quotes a definition of “discrimination” from the dissenting opinion of Justice Thomas in the Olmstead case, in which he asserts that “discrimination” requires differential treatment.[98] The Olmstead majority rejected that definition, holding that “[u]njustified isolation . . . is properly regarded as discrimination based on disability,” even in the absence of differential treatment of a comparator class.[99]
In sum, the Reinhart Concurrence largely ignores the whole text of the ADA including its express instructions to incorporate Section 504 regulations and Access Board standards, and to interpret the entire ADA statute to provide protection at least as great as those regulations. It is especially noteworthy that the Reinhart Concurrence does not mention Section 12134(c) or 12204(a) – both of which mandate, in statutory text, the adoption of standards for physical accessibility – given that the case addresses the accessibility of city streets and sidewalks.
When the Reinhart Concurrence does look to other parts of the ADA, it draws precisely the wrong conclusions. The opinion attempts to interpret Section 12132 in light of Titles I and III of the ADA, noting that those two titles “expressly define discrimination as going beyond intentional acts.”[100] The conclusion the opinion draws from this is that Congress intentionally excluded unintentional discrimination from Title II.[101] This, again, ignores the specific statutory language of construction and incorporation that makes clear that Section 12132 goes beyond intentional acts. It also ignores a clear explanation in the legislative history for the differences among Titles I, II, and III, as discussed in Section VI below.
The Reinhart Concurrence also dismisses the ADA’s finding that “forms of discrimination” against disabled people include both “outright intentional exclusion” and other, unintentional, acts,[102] asserting that statutory findings cannot overcome clear statutory text.[103] But if the text were so clear, the Concurrence would not need to spend so much time with so many different dictionaries,[104] not to mention a Supreme Court dissent. The role of the ADA’s findings section is similar to – though, given its source, stronger than – that of the dictionaries that play such a central role in the Concurrences: it informs the meaning of the statutory text of Section 12132.
The Reinhart Concurrence also discusses Title II’s remedies provision – Section 12133 – at some length, which will be addressed in Section VIII below.
Finally, the Reinhart Concurrence observes that the Americans with Disabilities Act Amendments Act of 2008 added Section 12201(h) which provides, “a public entity under [Title] II . . . need not provide a reasonable accommodation or a reasonable modification to policies, practices, or procedures to an individual” who meets only a specific subsection of the definition of disability. While the inclusion of Title II in this provision about reasonable accommodations and modifications suggests that there is a right to reasonable accommodations under Title II, the Concurrence rejects this reading as contrary to the textual analysis it has just performed, and notes dramatically but accurately that Section 12201(h) “is a strange place for Congress to massively expand state and local exposure to private lawsuits under Title II.”[105] I suppose it would be strange if Section 12201(h) were a massive expansion rather than a simple recognition of the consistent interpretation of Section 12132 and Section 504 over the preceding decades.
VI. The Concurrences Ignore Legislative History That Supports a Reading of Section 12132 that Includes Unintentional Discrimination.
The legislative history of the ADA demonstrates that “discrimination,” as used in Section 12132, includes far more than intentional discrimination.
Judge Readler, in his Reinhart concurrence, denigrates legislative history as “massively disfavored in modern jurisprudence”[106] and, citing himself, “all but discontinued.”[107] The Supreme Court has made clear the obvious: “legislative history is not the law,”[108] but as Scalia and Garner explain in Reading Law, it is perfectly acceptable to use legislative history to “establish[ ] linguistic usage – showing that a particular word or phrase is capable of bearing a particular meaning.”[109] Used in this way, “it is no more forbidden (though no more persuasive)” than a dictionary,[110] the preferred extra-textual source in the Reinhart and Booth Concurrences.
It is beyond the scope of this post to fully explore the role of legislative history in statutory analysis, but I have always been struck by the different roles it plays for originalists: they seem happy to rely on their views of the views of the 18th century drafters of the Constitution, but resist mightily reliance on the expressed views of 20th or 21st century statutory drafters. Luckily a Harvard Law student wrote a note exploring the “paradox” that “while the Court’s textualist-originalists use legislative history to find constitutional meaning, the same Justices reject legislative history in finding statutory meaning.[111] Highly recommend.
Ultimately, the task we face is to figure out what actions fall within the definition of “discrimination” in Section 12132. As such, the legislative history provides valuable insight – and demonstrates that that word includes both intentional and unintentional discrimination.
In the ADA’s legislative history, Congress explained that the purpose of Title II was to “make applicable the prohibition against discrimination on the basis of disability, currently set out in regulations implementing section 504 of the Rehabilitation Act of 1973, to all programs, activities, and services” of state and local government.[112] And, crucially, “Section 504 recognize[d] that discrimination results from actions or inactions, and that discrimination occurs by effect as well as by intent or design.”[113]
The legislative history also explained why Title II differs from Titles I and III, a distinction the Reinhart Concurrence relies on to conclude that Section 12132 is limited to intentional discrimination.[114]
The Committee has chosen not to list all the types of actions that are included within the term “discrimination”, as was done in titles I and III, because this title essentially simply extends the anti-discrimination prohibition embodied in section 504 to all actions of state and local governments. The Committee intends, however, that the forms of discrimination prohibited by section [12132] be identical to those set out in the applicable provisions of titles I and III of this legislation. Thus, for example, the construction of “discrimination” set forth in section [12112(b) and (c)] and section [12182(b)] should be incorporated in the regulations implementing this title. In addition, however, section [12134] also requires that regulations issued to implement this section be consistent with regulations issued under section 504. Thus, the requirements of those regulations apply as well, including any requirements such as program access that go beyond titles I and III.[115]
This is directly contrary to the argument in the Reinhart Concurrence that the differences among Titles I, II, and III of the ADA require the conclusion that Title II did not include forms of discrimination listed in Title I or Title III.[116] It also demonstrates the breadth of Title II, as Section 12182(b) – the Title III provision referenced in the passage above – spells out in statutory language most of the requirements that appear in the DOJ regulations implementing Section 12132,[117] including requirements of reasonable modifications,[118] integration[119] and physical accessibility.[120] Indeed, the passage above continues: “For example, under this title, local and state governments are required to provide curb cuts on public streets.”[121] The legislative history makes clear that Title II addresses the accessibility of city streets, yet all of the arguments in the Reinhart Concurrence are mustered to prove the opposite.
VII. The Concurrences Ignore or Blow Off Forty Years of Supreme Court Precedent and Lower Court Analysis Supporting a Reading of Section 12132 that Includes Unintentional Discrimination
A. Alexander v. Choate
One of the earliest Supreme Court cases interpreting Section 504 – the statute setting the floor for the protections of Section 12132[122] – made clear that it reached more than just intentional discrimination. While the ultimate holding of Alexander v. Choate is that the state program at issue did not violate Section 504, the Court made a series of crucial holdings and statements before reaching this conclusion, all of which underscore that the statute reaches unintentional discrimination.
The question before the Court in Choate was whether a limitation in the Tennessee Medicaid program had an illegal disparate impact on disabled people. While it’s true that the Court only “assume[d] without deciding that § 504 reaches at least some conduct that has an unjustifiable disparate impact upon” disabled people,[123] it ultimately held that “an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers. . . . [T]o assure meaningful access, reasonable accommodations in the grantee’s program or benefit may have to be made.”[124]
Thus while Choate may not be a full-throated endorsement of a disparate impact theory under Section 504, it leaves no doubt that that statute requires meaningful access – regardless of intent – and reasonable accommodations to achieve it.
The Reinhart Concurrence discusses Choate’s meaningful access and reasonable accommodations language in two different places; however, in both cases it cites only to Ability Center rather than to Choate itself. Ability Center paraphrased Choate, holding that Title II “requires that public entities make reasonable accommodations for disabled individuals so as not to deprive them of meaningful access to the benefits of the services such entities provide.”[125] Without recognizing that the language comes directly from Choate, the Reinhart Concurrence dismisses this holding as “debatable,”[126] later asserting that “Title II’s text and context, as well as background constitutional principles all belie such a reading.”[127] When the Reinhart Concurrence cites Choate by name, it does so only to dismiss its language – without further analysis – as “dicta.”[128] That is, the Reinhart Concurrence fails to cite or wrestle with the holding in bold text above, which reflects the Supreme Court’s view that Section 504 requires meaningful access and reasonable accommodations.
The Reinhart Concurrence also ignores Choate’s extensive discussion of why Section 504 is different from Title VI and why the Court would not, therefore, import into Section 504 the holding in Guardians Association v. Civil Service Commission of City of New York,[129] that Title VI was limited to intentional discrimination.
The defendant in Choate had urged the Court to adopt the Guardians standard and limit Section 504 to intentional discrimination.[130] The Court refused to do this, explaining that “there are reasons to pause before too quickly extending” that holding in Guardians to Section 504.[131] Chief among these reasons was the fact that “[d]iscrimination against the handicapped was perceived by Congress to be most often the product, not of invidious animus, but rather of thoughtlessness and indifference – of benign neglect.”[132] Furthermore,
much of the conduct that Congress sought to alter in passing the Rehabilitation Act would be difficult if not impossible to reach were the Act construed to proscribe only conduct fueled by a discriminatory intent. For example, elimination of architectural barriers was one of the central aims of the Act, yet such barriers were clearly not erected with the aim or intent of excluding the handicapped.[133]
In a footnote, the Choate Court described several other “considerations [that] counsel hesitation before reading Title VI and § 504 in pari materia with respect to the effect/intent issue.”[134]
While the Reinhart Concurrence makes much of Choate’s failure to endorse disparate impact, it does not address Choate’s holding that we should not read “Title VI and § 504 in pari materia with respect to the effect/intent issue,” which was, in turn, essential to its holding that Section 504 requires “meaningful access.” Instead, the Reinhart Concurrence addresses this distinction – between Title VI and Section 504 – in its discussion of Ability Center, waving it away as “vibes.”[135]
B. Olmstead v. L.C.[136]
Fifteen years after the Choate decision, the Supreme Court – interpreting Section 12132 in Olmstead v. L.C. – held that “[u]njustified isolation . . . is properly regarded as discrimination based on disability.”[137] While the Court expressly did not rule on the validity of the Title II regulations, it did something more important for our purposes: it affirmed the Eleventh Circuit’s holding that “undue institutionalization qualifies as discrimination ‘by reason of … disability.’”[138] That is, it grounded its holding in the language of the statute itself, not the regulations; that language prohibits “discrimination,” which – the Supreme Court held – encompasses unjustified isolation.
The Reinhart Concurrence dismisses Olmstead’s holding as “focused” on institutionalization[139] asserting that its “holding [was] that Title II’s ‘proscription of discrimination’ encompasses the unwarranted institutionalization of disabled individuals.”[140] Well, yes. That’s the point: Olmstead held that unwarranted institutionalization – not “intentional institutionalization” – violates Title II.
The Reinhart Concurrence also relies on Justice Thomas’s dissent in Olmstead to argue that “the word ‘discrimination’ … ordinarily ‘requires a showing that a claimant received differential treatment’” in contrast to a member of a non-protected class.[141] But, as noted above, the Olmstead majority explicitly rejected the argument that “‘discrimination’ necessarily requires uneven treatment of similarly situated individuals” on the grounds that “Congress had a more comprehensive view of the concept of discrimination advanced in the ADA.”[142]
C. Tennessee v. Lane
Five years later, the Court was faced with the question whether Title II exceeded Congress’s power under section 5 of the Fourteenth Amendment and thus whether states had sovereign immunity under the Eleventh Amendment against damages suits under that statute.[143]
The Court had earlier held that “in order to authorize private individuals to recover money damages against the States . . . the remedy imposed by Congress must be congruent and proportional to the targeted violation.”[144] Because the Court held that those requirements were not met with respect to Title I of the ADA, states have sovereign immunity from damages suits under that provision.[145]
In Lane, the Supreme Court faced the same question with respect to Title II. The Court disaggregated the contexts covered by Title II and ultimately held – with respect to physical access to court facilities – that “Congress’ chosen remedy for the pattern of exclusion and discrimination . . ., Title II’s requirement of program accessibility, is congruent and proportional to its object of enforcing the right of access to the courts.”[146] Integral to this holding was the fact that the remedy was “a limited one. Recognizing that failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion, Congress required the States to take reasonable measures to remove architectural and other barriers to accessibility.”[147] The decision went on to describe the regulations requiring different levels of accessibility in new and older facilities.[148] As the Fifth Circuit explained in Frame, “[t]he Supreme Court’s use of DOJ’s regulations to illustrate the scope of Title II’s reasonable modification requirement is a good indication that those regulations simply apply Title II’s nondiscrimination mandate.”[149]
The Lane Court concluded:
Judged against this backdrop, Title II’s affirmative obligation to accommodate persons with disabilities in the administration of justice cannot be said to be “so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” It is, rather, a reasonable prophylactic measure, reasonably targeted to a legitimate end.[150]
The Reinhart Concurrence dismisses the Lane Court’s extensive discussion of Title II’s architectural barrier removal requirement, describing the holding as narrowly limited to court access and faulting the Court for failing to analyze the text of Section 12132.[151]
D. Courts of Appeals
1. The Sixth Circuit
Perhaps the sharpest arrow in the Concurrences’ quiver is Doe v. BlueCross BlueShield of Tennessee, Inc. in which the Sixth Circuit stated that it “resolve[d] what Choate did not and conclude[d] that § 504 does not prohibit disparate impact discrimination.”[152] However, that case is not ultimately as powerful as the Concurrences might suppose.
The Doe court based its conclusion on the word “solely” in Section 504 – the statute bars discrimination “solely by reason of . . . disability”[153] – holding that this language “does not encompass actions taken for nondiscriminatory reasons.”[154] There are a number of problems with this decision.
Perhaps most troubling is the fact that the Doe court does not address the then-41 year old Section 504 regulations – incorporated into the ADA and endorsed by courts and legislative history[155] – prohibiting funding recipients from “utiliz[ing] criteria or methods of administration . . . that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap.”[156] It also does not cite, much less distinguish, Ability Center, decided 15 years previously. It’s true that Ability Center interprets Title II, but given the interwoven history of both statutes, it’s telling that the court elected to ignore the earlier case.
In any event, Doe makes clear that its holding is limited to disparate impact:
A claim based on a denial of a reasonable accommodation differs from a disparate-impact claim. Under the Rehabilitation Act, a disabled person is “otherwise qualified” for a program if he could meet its requirements with a reasonable accommodation. And when that holds true, a denial of the requested accommodation may amount to unlawful discrimination.[157]
This passage makes reliance on Doe especially inappropriate in the Booth case, which addressed the question whether Section 12132 requires reasonable accommodations.[158] Ultimately, Doe should not curtail claims for various types of unintentional discrimination under Section 12132, as the word “solely” – on which Doe based its holding – does not appear in the language of that provision; recall, too, that Section 504 is floor for interpretation of the ADA,[159] not a mirror.
In any event, the two opinions under discussion here are simply concurrences, that is, the views of two Sixth Circuit judges, neither reflecting binding circuit precedent. Indeed, before and after these Concurrences, the Sixth Circuit has continued to hold that Title II reaches various types of unintentional discrimination. For example, just last month, in Thomas v. Piggett, that court reversed the dismissal of a prisoner’s Title II damages claim for failure to accommodate.[160] In Knox County, Tennessee v. M.Q, decided in 2024 – just a year before Reinhart and two years before Booth – that circuit held that “Section 504 . . . requires states to assure ‘meaningful access’ to their programs by making reasonable accommodations as may be necessary” and that Title II “requires public entities to make reasonable modifications to their policies, practices, or procedures to avoid discrimination on the basis of disability.”[161] The Knox County court summarized that “[a] plaintiff may allege disability discrimination under two available theories: intentional discrimination and failure to reasonably accommodate.”[162] Neither the Reinhart nor the Booth Concurrence cites to Knox County.
2. Other Circuits
The Reinhart Concurrence concedes that “[r]easonable accommodation liability is the prevailing standard among the circuit courts,”[163] but dismisses that with a quote from Charles Dickens to the effect that we should not assume that what we’ve done in the past is the right thing. But isn’t that more or less a foundational principle of our judicial system: the binding effect of decisions of higher courts and earlier decisions within the same circuit; and respect for the well-reasoned decisions of sister circuits and district courts? These sources have consistently held that Section 12132 prohibits both intentional and unintentional discrimination. For example:
- First: Sosa v. Massachusetts Department of Correction: “Courts have recognized that a claim under Title II may be premised on one of three theories of discrimination: (1) intentional discrimination or disparate treatment; (2) failure to make a reasonable accommodation; (3) disparate impact.”[164]
- Second: Hamilton v. Westchester County: “A plaintiff may base a Title II claim ‘on any of three theories of liability: disparate treatment (intentional discrimination), disparate impact, or failure to make a reasonable accommodation.’”[165]
- Third: Williams v. Secretary, Pennsylvania Department of Corrections: recognizing disparate impact under Title II and holding that “because facially neutral policies may ‘disparately impact people with disabilities,’ ‘a public entity may be required to make reasonable modifications’ to these policies.”[166]
- Fourth: Richardson v. Clarke: “The ADA permits plaintiffs to pursue three distinct grounds for relief: (1) intentional discrimination or disparate treatment; (2) disparate impact and (3) failure to make reasonable accommodations.”[167]
- Fifth: Carter v. City of Shreveport: “[B]oth the ADA and the Rehabilitation Act impose upon public entities an affirmative obligation to make reasonable accommodations for disabled individuals.”[168]
- Seventh: Brown v. Meisner: “An allegation that the defendants failed to make reasonable accommodations can state a violation of Title II of the ADA.”[169]
- Eighth: Hall v. Higgins: “The failure to make reasonable accommodations ‘is a separate form of prohibited discrimination.’ . . . a public entity must make reasonable accommodations where necessary to give ‘meaningful access’ to programs or benefits. . ..”[170]
- Ninth: Payan v. Los Angeles Community College District: “A disability discrimination claim may be based on ‘one of three theories of liability: disparate treatment, disparate impact, or failure to make a reasonable accommodation.’”[171]
- Tenth: Chaffin v. Kansas State Fair Board: holding that, “although the conduct regulated by Title VI . . . is limited to intentional discrimination, Congress sought with § 504 – and consequently with Title II of the ADA – to remedy a broad, comprehensive concept of discrimination against individuals with disabilities, including disparate impact discrimination.”[172]
- Eleventh: Ellard v. Cannon: A Title II “claim may . . . proceed under the theory that the defendant failed to provide reasonable accommodations for the plaintiff’s disability.”[173]
- District of Columbia: Brown v. District of Columbia: holding that a city violates the ADA “if it cares for a mentally or physically disabled individual in a nursing home notwithstanding, with reasonable modifications to its policies and procedures, it could care for that individual in the community.”[174]
Many circuits[175] have also held that Section 12132 requires public entities to ensure that new and altered facilities are accessible and that, in older facilities, “each service, program, or activity . . . when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.”[176]
VIII. Remedies and Private Rights of Action
In Alexander v. Sandoval, the Supreme Court held that, while there was a private right of action to enforce Title VI, that right did not extend to implementing regulations that went beyond the prohibition on discrimination in the text of that statute, that is, regulations that “forbid conduct that [Title VI] permits.”[177] Specifically, relying on its earlier decision in Guardians, the Court held that Title VI only prohibits intentional discrimination and that there is thus no private right of action to challenge conduct violating regulations that prohibit disparate impact discrimination.[178]
Under the logic of Sandoval, the question whether there is a private right of action under Section 12132 to enforce the DOJ’s implementing regulations – including those that prohibit various forms of unintentional discrimination – is ultimately the question whether the text of Section 12132 prohibits such discrimination. As the previous sections of this post have made clear, it does. Given the whole text of the ADA, the legislative history, and 40 years of precedent, it is clear that regulations implementing Section 12132 – at least to the extent they track Section 504, its regulations, and the interpretation of both in 1990 – are coextensive with the text of Section 12132.
The Reinhart Concurrence bases its argument to the contrary in large part on the fact that Title II’s remedies provision (Section 12133), incorporates Section 504’s remedies provision (Section 505) which, in turn, incorporates the remedies of Title VI. From this two-step incorporation of remedies – Title VI à Section 505 à Section 12133 – the Concurrence concludes that Section 12132 must incorporate the substantive limitations of Title VI. The Concurrence provides no support for this. Indeed, these substantive antidiscrimination provisions – Section 504 and Section 12132 – do not incorporate or reference Title VI. As discussed above, the substantive rights conferred and protected by Section 504 and (later) Section 12132 developed along a separate path from those in Title VI, and the Court has cautioned on several occasions that these two paths should not be confused.[179]
The Supreme Court has also held, in an analogous situation, that Section 505’s incorporation of Title VI’s remedies does not incorporate Title VI’s substantive limitations into Section 504. The plaintiff-respondent in Darrone sued Consolidated Rail Corporation (“Conrail”) under Section 504 for disability discrimination in employment. Conrail received federal funding but argued that the claim was barred by analogy to the provision of Title VI that limits employment claims to those involving programs in which “a primary objective of the Federal financial assistance is to provide employment.”[180] Conrail argued that the fact that Section 505 incorporated Title VI’s remedies meant that Section 504 shared that statute’s “primary objective” limitation. The Supreme Court rejected this argument, holding that “[i]t is clear that § 504 itself contains no such limitation. Section 504 neither refers explicitly to § 604 nor contains analogous limiting language.”[181]
In the Shotz case, the Eleventh Circuit similarly addressed the extent to which the incorporated remedies provision of Title VI imposed limits on the ADA. That case raised the question whether individuals may be liable under the ADA’s anti-retaliation provision, Section 12203, which reads, “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter . . .”[182] That section then incorporates the remedies of Section 12133[183] which, as discussed above, incorporates the remedies of Section 505 and thus ultimately of Title VI. “For a violation of § 12203 in the context of public services, then, we ultimately look to Title VI.”[184] The Eleventh Circuit was thus faced with a substantive provision that clearly envisioned individual liability – “[n]o person shall discriminate” – and an incorporated remedies provision that only applied to recipients of federal funding – Title VI.[185] That court concluded that, in the context of Title II, “allowing the remedial provisions to govern the scope of liability would deviate considerably from the intent and purpose of the statute.”[186] For example, the defendant’s theory would import, through Section 12133, all of the limits of Title VI into Section 12132, with the absurd result of limiting Section 12132 to public entities that receive federal funding, a result clearly at odds with the text and legislative history of Title II.[187]
Darrone, Shotz, and Orozco all reach the logical conclusion that incorporating the types of remedies permissible in Title VI does not bring with it other limitations found in Title VI, including its “primary objective” employment limitation and its limitation to recipients of federal funding. The same logic dictates that the incorporation of Title VI remedies into Section 12133 does not impose on Section 12132 the court-created doctrine limiting Title VI to intentional discrimination.
A number of circuits have explicitly recognized a private right of action to enforce Title II to challenge unintentional discrimination. As discussed in Section V above, in Frame v. City of Arlington, the Fifth Circuit held that the text of Section 12132 “extends to newly built and altered sidewalks.”[188] That case went on to address the scope of Section 12132’s private right of action, concluding that “the plaintiffs have a private right of action to enforce Title II of the ADA and § 504 of the Rehabilitation Act with respect to newly built and altered sidewalks.”[189] Several other circuits – including, as discussed above, the Sixth – concur. For example, in Payan, the Ninth Circuit held, based on Choate, that Title II and Section 504 prohibit disparate impact discrimination.[190] The court then considered the argument that, based on the incorporation of Title VI’s remedies into Section 12133 and Section 505 and the similarity of the language of Title VI, Section 12132, and Section 504, Alexander v. Sandoval foreclosed a private right of action to challenge disparate impact discrimination.[191] The court rejected that argument, explaining that Sandoval’s conclusion was based on a series of Supreme Court decisions rather than the text of Title VI itself. “Sandoval, therefore, does not upset the historical understanding that Section 504 and the ADA were specifically intended to address both intentional discrimination and discrimination caused by ‘thoughtless indifference’ or ‘benign neglect,’ such as physical barriers to access public facilities.”[192] Ultimately, the court held, “disparate impact disability discrimination claims remain enforceable through a private right of action.”[193]
Finally, the Reinhart Concurrence argues that the Title II regulations must not be enforceable through a private right of action given that Section 12134(a), the provision of Title II instructing the DOJ to issue implementing regulations, does not have a private right of action. This misconstrues the source of the private right of action and the role of Section 12134(a) and other provisions of the ADA, including Section 12201(a). The private right of action at issue is the undisputed right to enforce Section 12132.[194] Other provisions of the ADA serve to define and inform the meaning of the terms used in Section 12132 – for example, incorporating Section 504 regulations and mandating that the ADA be construed to provide as much protection as that statute. As such, they do not each need their own private right of action.
IX. A Couple of Thoughts About Intent That Did Not Fit Neatly Elsewhere in the Post
The majority opinion in Reinhart addressed the question of intentional discrimination under Title II because the plaintiff had pleaded such a claim.[195] In doing this, it enunciated a standard for intentional discrimination that requires “discriminatory animus toward disabled individuals.”[196] The question of what constitutes intentional conduct under Title II has been addressed in a number of other circuits, as it is widely accepted that, to recover damages under that provision, a plaintiff must show intentional conduct. The animus standard established by the Sixth Circuit diverges from the standard adopted by most other circuits, however: that intentional conduct for purposes of damages under Title II is demonstrated by deliberate indifference without a requirement of showing discriminatory animus.[197] And as the Ninth Circuit explained, in a widely-cited case, “[d]eliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that the likelihood.”[198] The Third Circuit case of S.H. ex rel. Durrell has a long discussion of why deliberate indifference rather than animus is the appropriate standard under Title II.[199]
I also find it odd to think that, in 2026, a failure to accommodate or the construction of inaccessible facilities could be said to be unintentional. When a disabled person articulates a need for a reasonable accommodation in order to participate in a public entity’s program or benefit from its services, the denial of that accommodation is an intentional act. And the construction of a physical facility – a building; a street; a sidewalk – requires an immense amount of intentional planning, all of which should be informed by 45 years – counting from publication of the MGRAD – of detailed accessibility standards. “Our architect was living under a rock” should not be a defense to intentional construction of an inaccessible building.
X. Conclusion
I hope the discussion above has convinced you – whether judge, lawyer, or layperson – that Title II reaches and prohibits many unintentional forms of discrimination and that it therefore creates a private right of action to challenge such discrimination. I hope this post it will inspire you to reject any arguments to the contrary and provide the tools to do so.
[1] 42 U.S.C. §§ 12101 – 12213.
[2] 42 U.S.C. § 12132. In this post, I will use the sections of the ADA as codified in Title 42 rather than as they appear in the original law, largely to avoid confusion with similarly-numbered – and repeatedly-cited – sections of the Rehabilitation Act of 1973.
[3] 29 U.S.C. § 794.
[4] Reinhart v. City of Birmingham, Michigan, No. 24-1954, 2025 WL 2426820, at *7 (6th Cir. Aug. 22, 2025) (Readler, J., concurring) (“Reinhart Concurrence”).
[5] Alexander v. Sandoval, 532 U.S. 275 (2001).
[6] 28 C.F.R. pt 35.
[7] Reinhart, 2025 WL 2426820, at *8.
[8] Booth v. Lazzara, 164 F.4th 581, 598 (6th Cir. 2026) (Murphy, J., concurring) (“Booth Concurrence”). Justices Thomas and Kavanaugh, in their concurrence in A. J. T. by & through A. T. v. Osseo Area Schs., Indep. Sch. Dist. No. 279, 605 U.S. 335, 351-55 (2025), appeared open to the possibility of addressing the question whether Title II only prohibits intentional conduct.
[9] Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 907 (6th Cir. 2004).
[10] Ability Ctr., 385 F.3dat 906 (citing Sandoval, 532 U.S. at 284-85).
[11] Id. at 907.
[12] Reinhart, 2025 WL 2426820, at*2-3.
[13] Id. at *4.
[14] Booth, 164 F.4th at 587.
[15] Id. at 588, 589.
[16] Id. at 596 (citing Reinhart, 2025 WL 2426820, at *6).
[17] This section of the post draws from – indeed copies and pastes in places – portions of an article I wrote for the UCLA Disability Law Journal. Amy Robertson, Key Disability Rights Regulations Will Remain Authoritative in the Wake of Loper Bright: A Toolkit for Litigation, 6(1) UCLA Disability L.J. 43 (2025), https://escholarship.org/uc/item/7140n8f3. Some of the research for that article came from an amicus brief I co-wrote with Claudia Center, Karla Gilbride, Arlene Mayerson, Susan Mizner, Carly Myers, and Justin Ormand, and I remain grateful for their contributions to that – and therefore this – writing. An additional shout-out to Karla for reading through this entire post and offering invaluable edits and comments. All errors remain mine.
[18] Pub. L. No. 93–112, § 504, 87 Stat. 355, 391 (1973) (codified at 29 U.S.C. § 794).
[19] 42 Fed. Reg. 22676 (May 4, 1977) (originally codified at 45 C.F.R. pt. 84 (1977)).
[20] 41 Fed. Reg. 17871 (Apr. 28, 1976).
[21] 43 Fed. Reg. 2132 (Jan. 13, 1978) (originally codified at 45 C.F.R. pt. 85 (1978)). The only versions we could find of these regulations were scans of old Federal Registers. For this reason, we have imported them into a Word document which has been proofread against the original by Jordon Henderson, our amazing and talented paralegal.
[22] In 1981, responsibility for Coordination Regulations was transferred to the DOJ. 46 Fed. Reg. 40686-01 (Aug. 11, 1981). These regulations are currently codified at 28 C.F.R. pt. 41 (“DOJ Coordination Regulations”).
[23] Pub. L. No. 95–602, § 119, 92 Stat. 2955, 2982 (1978) (codified at 29 U.S.C. § 794(a)).
[24] You can review my working chart of these regulations in this Google Doc: https://docs.google.com/spreadsheets/d/18Yo4mC4-WFGr0euD2TIRgye3GVmti4ODyDicgTnI8eE/edit?gid=1972431317#gid=1972431317. It’s definitely a working chart, so please feel free to let me know if you have comments or corrections.
[25] Pub. L. No. 95-602, § 118(b)(1) (codified at 29 U.S.C. § 792(b)(1)). The Architectural Barriers Act (“ABA”) was passed in 1968, mandating the promulgation of “standards for the design, construction, and alteration” of buildings constructed, altered, leased by, or financed by the federal government to ensure access for people with disabilities. Pub. L. No. 90–480, § 2, 82 Stat. 718, 719 (1968) (codified at 42 U.S.C. § 4152).
[26] 46 Fed. Reg. 4270 (Jan. 16, 1981), withdrawn and revised at 47 Fed. Reg. 33862 (Aug. 4, 1982) (codified at 36 C.F.R. pt 1190 (1982)).
[27] 42 U.S.C. § 12101(a)(5).
[28] 42 U.S.C. §§ 12111 – 12117.
[29] 42 U.S.C. §§ 12131 – 12165.
[30] 42 U.S.C. §§ 12181 – 12189.
[31] 42 U.S.C. §§ 12201 – 12213. It may be useful to understanding the role the various sections of the ADA play in the definition of discrimination to see the structure of the statute in context: https://www.law.cornell.edu/uscode/text/42/chapter-126.
[32] 42 U.S.C. § 12132.
[33] Id. § 12201(a) (emphasis added).
[34] Id. § 12134(b).
[35] Id. § 12134(c).
[36] Id. § 12204(a).
[37] Id. § 12204(b).
[38] 42 U.S.C. § 12133.
[39] 29 U.S. C. § 794a(a)(2).
[40] 42 U.S.C. § 2000d.
[41] Cannon v. Univ. of Chicago, 441 U.S. 677, 709 (1979).
[42] Barnes v. Gorman, 536 U.S. 181, 185, 187 (2002) (addressing both Title II and Section 504); Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212, 218 (2022) (addressing Section 504).
[43] 45 C.F.R. § 85.51(b)(3) (1978).
[44] Id. § 85.51(d).
[45] 28 C.F.R. § 39.160(a) (1990).
[46] Id. § 39.151; see also Minimum Guidelines and Requirements for Accessible Design, 47 Fed. Reg. 33862 (Aug. 4, 1982) (originally codified at 36 C.F.R. pt. 1190 (1983)).
[47] 28 C.F.R. § 39.150(a) (1990).
[48] Alexander v. Choate, 469 U.S. 287, 301 (1985). (“[T]o assure meaningful access, reasonable accommodations in the grantee’s program or benefit may have to be made”).
[49] See Sandoval, 532 U.S. at 285 (holding that no private right of action exists to enforce regulations that “forbid conduct that [the statute] permits”).
[50] In 1979, the Department of Health, Education and Welfare (HEW) was redesignated the Department of Health and Human Services (HHS). Pub. L. No. 96–88, § 509, 93 Stat. 668, 695 (1979).
[51] Consol. Rail Corp. v. Darrone, 465 U.S. 624, 634 n.15 (1984).
[52] Sch. Bd. of Nassau Cnty., Fla. v. Arline, 480 U.S. 273, 279 (1987) (internal citations omitted); see also Traynor v. Turnage, 485 U.S. 535, 550 n.10 (1988) (same).
[53] Lichter v. United States, 334 U.S. 742, 783 (1948); see also, e.g., Hikvision USA, Inc. v. FCC, 97 F.4th 938, 946, 947 n.5 (D.C. Cir. 2024) (holding that Congress “affirmatively ratified” a list of banned equipment previously identified by the FCC when it referred to the relevant regulation in statutory language).
[54] Helen L. v. DiDario, 46 F.3d 325, 332 (3d Cir. 1995) (emphasis added; internal citations omitted).
[55] Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1179 (11th Cir. 2003); see also Marcus v. Kansas Dep’t of Revenue, 170 F.3d 1305, 1306 n.1 (10th Cir. 1999) (quoting Helen L.); Messier v. Southbury Training Sch., 916 F. Supp. 133, 141 (D. Conn. 1996) (“Additionally, when Congress, in enacting a statute, explicitly approves of prior administrative interpretations of a law, Congress is treated as having adopted such interpretations. . . . Thus, Congress’s instruction to the Attorney General to promulgate regulations under the ADA consistent with those promulgated under Section 504 indicates congressional approval of the above-cited specific prohibitions.”).
[56] Georgia v. Public.Resource.org, Inc., 590 U.S. 255, 270 (2020) (quoting Helsinn Healthcare S.A. v. Teva Pharms. USA, Inc., 586 U.S. 123, 131 (2019)).
[57] Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), superseded by statute, Americans with Disabilities Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008).
[58] Id. at 193-94 (citing Bragdon v. Abbott, 524 U.S. 624, 631 (1998); FDIC v. Philadelphia Gear Corp., 476 U.S. 426, 437–38 (1986); ICC v. Parker, 326 U.S. 60, 65 (1945)). The Toyota Court’s analysis of the definition of disability was superseded by the Americans with Disabilities Act Amendments Act of 2008. This does not detract from the principle enunciated in the decision that Congress’s use of the identical language in the ADA and Section 504 implied an adoption of the regulations implementing the latter statute.
[59] Toyota, 534 U.S. at 193-94.
[60] Bragdon, 524 U.S. at 645.
[61] Lorillard v. Pons, 434 U.S. 575, 580 (1978); see also, e.g., Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 846 (1986) (“It is well established that when Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the ‘congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress.’”); N. Haven Bd. of Ed. v. Bell, 456 U.S. 512, 535 (1982) (“Where ‘an agency’s statutory construction has been “fully brought to the attention of the public and the Congress,” and the latter has not sought to alter that interpretation although it has amended the statute in other respects, then presumably the legislative intent has been correctly discerned,’” ) (quoting United States v. Rutherford, 442 U.S. 544, 554, n. 10 (1979)); NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 274–75 (1974) (“In addition to the importance of legislative history, a court may accord great weight to the longstanding interpretation placed on a statute by an agency charged with its administration. This is especially so where Congress has re-enacted the statute without pertinent change. In these circumstances, congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation is the one intended by Congress. We have also recognized that subsequent legislation declaring the intent of an earlier statute is entitled to significant weight.” (footnote citations omitted)).
[62] Reinhart, 2025 WL 2426820, at *6.
[63] Cannon, 441 U.S. at 696–97.
[64] See, e.g., United States v. Bd. of Comm’rs of Sheffield, Ala., 435 U.S. 110, 135 (1978) (holding that where “there ha[s] been a longstanding administrative interpretation of a statute when Congress re-enacted it, and . . . the legislative history of the re-enactment showed that Congress agreed with that interpretation” Congress is deemed to have ratified the interpretation).
[65] Reinhart, 2025 WL 2426820, at *9.
[66] Pub. L. No. 95–602, § 120, 92 Stat. 2955, 2982 (1978); Pub. L. No. 99–506, § 1003, 100 Stat. 1807, 1845 (1986); Pub. L. No. 100–259, § 4, 102 Stat 28, 29 (1988); Pub. L. No. 102–569, § 506, 106 Stat 4344, 4428 (1992).
[67] The ADA Amendments Act of 2008, Pub. L. No. 110–325, 122 Stat. 3553 (2008).
[68] See also Helen L., 46 F.3d at 332 (“The same is true when Congress agrees with an administrative interpretation of a statute which Congress is re-enacting. . . . Although Title II of the ADA is not a re-enactment of section 504, it does extend section 504’s anti-discrimination principles to public entities”).
[69] See generally, Implementation of Section 504, Rehabilitation Act of 1973, Hearings Before the Subcomm. on Select Educ. of the Comm. on Educ. and Lab., H.R., 95th Cong. (1977); a copy is available on our website at https://foxrob.com/wp-content/uploads/2026/03/1978-04-24-S-Rep-95-890-RA-Amd-1978.pdf.
[70] S. Rep. No. 95–890, at 19 (1978); a copy is available on our website at https://foxrob.com/wp-content/uploads/2026/03/1978-04-24-S-Rep-95-890-RA-Amd-1978.pdf.
[71] Id. at 18.
[72] 29 U.S.C. § 794(a) (emphasis added).
[73] See supra note 24.
[74] United Sav. Ass’n of Texas v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988); see also K Mart v. Cartier, Inc., 486 U.S. 281, 291 (1988) (“In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.”).
[75] Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 143 (Kindle ed. 2012).
[76] King v. Burwell, 576 U.S. 473, 486 (2015) (emphasis added; internal citations omitted); see also Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-33 (2000) (“In determining whether Congress has specifically addressed the question at issue, a reviewing court should not confine itself to examining a particular statutory provision in isolation. . . It is a ‘fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.’”); superseded by statute on other grounds as recognized in Food & Drug Admin. v. Wages and White Lion Investments, LLC, 604 U.S. 542 (2025) (internal citations omitted).
[77] 42 U.S.C. § 12201(a). I was tempted to call this section of the post “What Part of ‘Construction’ Is Unclear?” but decided that was too snarky.
[78] Id. § 12134(a), (b).
[79] Id. §§ 12204(a); 12134(c).
[80] Id. § 12131(2).
[81] Id. § 12101(a)(5).
[82] Scalia & Garner, supra note 76, at 183 (emphasis added).
[83] Bragdon, 524 U.S. at 631-32 (emphasis added).
[84] Id. at 632-33.
[85] Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011).
[86] Id. at 226-28.
[87] Id. at 228.
[88] Id.
[89] Id. (emphasis in original).
[90] Id. (quoting Bragdon, 524 U.S. at 632); see also Bassilios v. City of Torrance, CA, 166 F. Supp. 3d 1061, 1072 (C.D. Cal. 2015) (citing Section 12201(a) for the proposition that “the ADA expressly prohibits courts from construing Title II to apply a lesser standard than the RA and its implementing regulations” to support the holding that on-street parking is covered by Section 12132); Kaufman v. Carter, 952 F. Supp. 520, 530 (W.D. Mich. 1996) (quoting Section 12201(a) and holding that “Congress specifically directed that the regulations pertaining to the Rehabilitation Act were to be incorporated into the ADA.”).
[91] King, 576 U.S. at 486 (internal citations omitted).
[92] The Booth Concurrence follows suit, largely relying on the Reinhart Concurrence. Booth, 164 F.4th at 596-99.
[93] Reinhart, 2025 WL 2426820, at *6 (quoting Black’s Law Dictionary (12th ed. 2024) (emphasis added)).
[94] The Booth Concurrence addresses this issue by distinguishing between de facto and de jure exclusion and denial – a reasonable way to phrase the distinction – but then dismisses this reading as “quite forced.” 164 F.4th at 597.
[95] Bragdon, 524 U.S. at 632 (citing 42 U.S.C. § 12201(a)).
[96] Reinhart, 2025 WL 2426820, at *6 (quoting The New Oxford American Dictionary 488 (1st ed. 2001)).
[97] Discrimination, Black’s Law Dictionary (12th ed. 2024) (emphasis added). If we’re really overthinking things and insist on the 1990 edition of Black’s – that is, the edition from the year the ADA was passed – this still leaves us with this very similar definition: “In constitutional law, the effect of a statute or established practice which confers particular privileges on a class arbitrarily selected from a large number of persons, all of whom stand in the same relation to the privileges granted and between whom and those not favored no reasonable distinction can be found.” Discrimination, Black’s Law Dictionary (6th ed. 1990).
[98] Reinhart, 2025 WL 2426820, at *6 (quoting Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 616 (1999) (Thomas, J., dissenting)).
[99] Olmstead, 527 U.S. at 597. See also infra Section VII.B.
[100] Reinhart, 2025 WL 2426820, at *7 (citing 42 U.S.C. §§ 12112(b)(5)(A) and 12182(b)(2)(A)(ii)); see also Booth, 164 F.4th at 597-98.
[101] Id.
[102] 42 U.S.C. § 12101(a)(5).
[103] Reinhart, 2025 WL 2426820, at *9.
[104] Not every textualist is as enthusiastic about dictionaries as Judge Readler. Indeed, in a different case, Judge Murphy – author of the Booth Concurrence – quotes Judge Frank Easterbrook:
This case thus epitomizes what one committed textualist has said about statutory interpretation: “In interesting cases, meaning is not ‘plain’; it must be imputed; and the choice among meanings must have a footing more solid than a dictionary – which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.”
United States v. Hill, 963 F.3d 528, 533 (6th Cir. 2020) (quoting Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 Harv. J. L. & Pub. Pol’y 61, 67 (1994)). Indeed, Judge Learned Hand cautioned that we must “not . . . make a fortress out of the dictionary.” Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff’d, 326 U.S. 404 (1945).
[105] Reinhart, 2025 WL 2426820, at *9.
[106] Reinhart, 2025 WL 2426820, at *9.
[107] United States v. Hensley, 110 F.4th 900, 905 (6th Cir. 2024).
[108] Epic Sys. Corp. v. Lewis, 584 U.S. 497, 523 (2018).
[109] Scalia & Garner, supra note 76, at 288.
[110] Id.; see also Bostock v. Clayton County, 590 U.S. 644, 674-75 (2020) (recognizing the role of legislative history in ascertaining meaning).
[111] Note, The Incompatibility of Textualist and Originalist Approaches to Legislative History, 138 Harv. L. Rev. 863, 863-65 (2025) (emphasis in original).
[112] H.R. Rep. No. 101–485, pt. 2, at 84 (1990); see also H.R. Rep. No. 101–485, pt. 3, at 52 (1990).
[113] H.R. Rep. No. 101-485, pt. 3, at 26.
[114] Reinhart, 2025 WL 2426820, at *7.
[115] H.R. Rep. No. 101-485, pt. 2, at 84; see also id. pt. 3, at 52.
[116] See Reinhart, 2025 WL 2426820, at *7.
[117] Compare, e.g., 42 U.S.C. § 12182(b) with 28 C.F.R. § 35.130(b).
[118] 42 U.S.C. § 12182(b)(2)(A)(ii) (failure to make reasonable modifications where necessary to provide goods and services to disabled people constitutes discrimination).
[119] Id. § 12182(b)(1)(B) (goods and services to be provided “in the most integrated setting appropriate”).
[120] Id. § 12182(b)(2)(A)(iv) (requirement that barrier must be removed where readily achievable); see also id.§ 12183(a) (requirement that new construction and alterations be “readily accessible to and useable by” disabled people).
[121] H.R. Rep. No. 101-485, pt. 2, at 84; see also id. pt. 3, at 72 (describing generally-applicable section 12204, stating “[t]hese supplemental guidelines will establish requirements . . . to ensure that buildings, facilities, and vehicles are accessible to individuals with disabilities in conformance with the ADA.”)
[122] 42 U.S.C. § 12201(a).
[123] Choate, 469 U.S. at 299 (emphasis added).
[124] Id. at 301 (emphasis added).
[125] Ability Center, 385 F.3d at 907.
[126] Reinhart, 2025 WL 2426820, at *5.
[127] Id. at *6.
[128] Id. at *8, *10.
[129] Guardians Ass’n v. Civ. Serv. Comm’n of City of New York, 463 U.S. 582 (1983).
[130] Choate, 469 U.S. at 292.
[131] Id. at 294.
[132] Id. at 295.
[133] Id. at 296-97 (citing S. Rep. No. 93–318, at 4 (1973), as reprinted in 1973 U.S.C.C.A.N. 2076, 2080).
[134] Id. at 294 n.11.
[135] Reinhart, 2025 WL 2426820,at *8 (citing Ability Ctr., 385 F.3d at 908).
[136] “L.C.” stands for Lois Curtis who, along with co-plaintiff Elaine Wilson, courageously and successfully took their desire to live in the community all the way to the Supreme Court. It’s unfortunate that we call the case “Olmstead” as Tommy Olmstead was the Georgia bureaucrat who wanted to keep Ms. Curtis and Ms. Wilson in their institutions. I’m hoping at some point we all decide to call the case “Curtis/Wilson.”
[137] Olmstead, 527 U.S. at 597.
[138] Id. at 592, 597 (emphasis added).
[139] Reinhart, 2025 WL 2426820, at *8.
[140] Id.
[141] Id.at *6 (quoting Olmstead, 527 U.S. at 616 (Thomas, J., dissenting)).
[142] Olmstead, 527 U.S. at 598.
[143] Tennessee v. Lane, 541 U.S. 509, 530-31 (2004).
[144] Bd. of Trs. of Univ. of Alabama v. Garrett, 531 U.S. 356, 374 (2001).
[145] Id.
[146] Lane, 541 U.S. at 531.
[147] Id. (citing 42 U.S.C. § 12131(2)).
[148] Id. at 531-32.
[149] Frame, 657 F.3d at 232.
[150] Lane, 541 U.S. at 533 (citing City of Boerne v. Flores, 521 U.S. 507, 532 (1997); Kimel v. Florida Bd. of Regents, 528 U.S. 62, 86 (2000)).
[151] Reinhart, 2025 WL 2426820, at *8.
[152] Doe v. BlueCross BlueShield of Tennessee, Inc., 926 F.3d 235, 241 (6th Cir. 2019).
[153] 29 U.S.C. § 794(a).
[154] Doe, 926 F.3d at 242.
[155] See supra Sections IV and VI.
[156] 45 C.F.R. 85.51(b)(3) (1978).
[157] Doe, 926 F.3d at 243 (internal citations omitted).
[158] Booth, 164 F.4th at 596 (citing Doe, 926 F.3d at 241-42).
[159] 42 U.S.C. § 12201(a) (“nothing in this chapter shall be construed to apply a lesser standard than the standards applied under” Section 504).
[160] Thomas v. Piggett, No. 25-1443, 2026 WL 548394, at *3 (6th Cir. Feb. 24, 2026) (“The Supreme Court held in United States v. Georgia that a prisoner may state an ADA claim based on the ‘alleged deliberate refusal of prison officials to accommodate [a prisoner’s] disability-related needs … .’” (citing Georgia, 546 U.S. 151, 157 (2006))).
[161] Knox Cnty., Tennessee v. M.Q., 62 F.4th 978, 999-1000 (6th Cir. 2023); see also Finley v. Huss, 102 F.4th 789, 820 (6th Cir. 2024) (recognizing a failure to accommodate theory under Title II); Waskul v. Washtenaw Cnty. Cmty. Mental Health, 979 F.3d 426, 461 (6th Cir. 2020) (holding that “Plaintiffs may thus state a claim [under Section 12132] by sufficiently alleging that they are at serious risk of institutionalization”).
[162] Knox Cnty., 62 F.4th at 1000 (citing Wilson v. Gregory, 3 F.4th 844, 859–60 (6th Cir. 2021); Marble v. Tennessee, 767 F. App’x 647, 650–51 (6th Cir. 2019); Roell v. Hamilton Cnty., 870 F.3d 471, 488 (6th Cir. 2017); Ability Ctr., 385 F.3d at 907).
[163] Reinhart, 2025 WL 2426820, at *10 (citing Sosa v. Mass. Dep’t of Corr., 80 F.4th 15, 30 (1st Cir. 2023) (collecting cases)). It’s odd that he cites to cases standing for the proposition that reasonable accommodations are required by Title II, as the Reinhart case itself addresses accessibility requirements.
[164] Sosa, 80 F.4th at 30.
[165] Hamilton v. Westchester County, 3 F.4th 86, 91 (2d Cir. 2021) (citation omitted).
[166] Williams v. Sec’y, Pennsylvania Dep’t of Corr., 117 F.4th 503, 529 (3d Cir. 2024), cert. denied sub nom. Wetzel v. Williams, 146 S. Ct. 91 (2025).
[167] Richardson v. Clarke, 52 F.4th 614, 619 (4th Cir. 2022).
[168] Carter ex rel. Carter v. City of Shreveport, 144 F.4th 809, 814 (5th Cir. 2025).
[169] Brown v. Meisner, 81 F.4th 706, 709 (7th Cir. 2023).
[170] Hall v. Higgins, 77 F.4th 1171, 1181 (8th Cir. 2023).
[171] Payan v. Los Angeles Cmty. Coll. Dist., 11 F.4th 729, 738 (9th Cir. 2021) (citation omitted).
[172] Chaffin v. Kansas State Fair Bd., 348 F.3d 850, 859-60 (10th Cir. 2003), overruled on other grounds as recognized by Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1167 n.4 (10th Cir. 2012)); see also Brooks v. Colorado Dep’t of Corr., 12 F.4th 1160, 1167 (10th Cir. 2021) (Title II “places an affirmative obligation on public entities to reasonably accommodate qualified individuals with disabilities to allow them to participate in its programs and services.”).
[173] Ellard v. Cannon, No. 25-11670, 2026 WL 293288, at *3 (11th Cir. Feb. 4, 2026).
[174] Brown v. District of Columbia, 928 F.3d 1070, 1073 (D.C. Cir. 2019).
[175] See, e.g., Karantsalis v. City of Miami Springs, Fla., 17 F.4th 1316, 1322 (11th Cir. 2021) (“the City is ‘obligated to ensure that each service, program, or activity at its [municipal facilities], when viewed in its entirety, [is] readily accessible to individuals with disabilities.’”); Lacy v. Cook Cnty., Illinois, 897 F.3d 847, 868 (7th Cir. 2018) (holding that Title II requires public entities to ensure that alterations to facilities were accessible); Fortyune v. City of Lomita, 766 F.3d 1098, 1102 (9th Cir. 2014) (holding that Title II requires cities to maintain accessible on-street public parking); Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189, 201 (2d Cir. 2014) (holding that city was required to ensure that its voting program, when viewed in its entirety, was accessible to individuals with mobility disabilities); Frame, 657 F.3d at 231-32 (Title II requires new and altered public sidewalks to be accessible); Chaffin, 348 F.3d at 857 (requiring meaningful physical access to state fairgrounds); Kinney v. Yerusalim, 9 F.3d 1067, 1075 (3d Cir. 1993) (holding that Title II requires sidewalks adjacent to resurfaced streets to be made accessible).
[176] 28 C.F.R. §§ 35.150(a), 35.151(a), (b).
[177] Sandoval, 532 U.S. at 285.
[178] Id. at 280-81.
[179] See supra notes 130-134 and accompanying text.
[180] 42 U.S.C. § 2000d-3.
[181] Darrone, 465 U.S. at 632 (emphasis added); see also Orozco v. Garland, 60 F.4th 684 (D.C. Cir. 2023) (holding that although Section 508 of the Rehabilitation Act – addressing inaccessible technology – incorporated the remedies set forth in Section 505(a)(2), it did not import the latter statute’s limitations to suits against recipients or providers of federal funding; rather, the broader rights defined in Section 508 controlled).
[182] 42 U.S.C. § 12203(a).
[183] Id. § 12203(c).
[184] Shotz, 344 F.3d at 1169.
[185] Id. at 1171.
[186] Id. at 1174.
[187] Id.
[188] Frame, 657 F.3d at 225. See supra Section V.A.
[189] Id. at 240.
[190] Payan, 11 F.4th at 735.
[191] Id.
[192] Id. at 736-37.
[193] Id. at 737. See also, e.g., Chaffin, 348 F.3d at 858-59 (holding that there is a private right of action under Section 12132 to challenge architectural barriers that violate implementing regulations); cf. Woods v. Centro of Oneida, Inc., 103 F.4th 933, 945 (2d Cir. 2024) (holding that there was a private right of action to enforce 49 C.F.R. 37.5(i)(b), a regulation implementing the transportation specific provisions of Title II, 42 U.S.C. §§ 12141 – 12165, and requiring reasonable modifications to policies, despite the fact that the language of those portions of Title II did not contain language requiring such modifications).
[194] See, e.g., Cummings, 596 U.S. at 218.
[195] Reinhart, 2025 WL 2426820, at *4 (citing Anderson v. City of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015)).
[196] Id.
[197] S.H. ex rel. Durrell v. Lower Merion Sch. Dist., 729 F.3d 248, 262 (3d Cir. 2013) (collecting cases).
[198] Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001), as amended on denial of reh’g (Oct. 11, 2001).
[199] S.H. ex rel. Durrell, 729 F.3d at 262-65.