Disability Law: Ivy v. Morath

Preview Issue 2, Vol. 44

By Leslie P. Francis

Published October 2016

Click here for a print-friendly PDF of this article.


Is a Contractual or Agency Relationship Necessary for a State Approved and Supervised Program to Be a “Service, Program, or Activity” of the State Under Title II of the ADA and § 504 of the Rehabilitation Act?


CASE AT A GLANCE

In Ivy v. Morath, five individual plaintiffs claim that the structure of Texas’s driver education program violates Title II of the Americans with Disabilities Act and § 504 of the Rehabilitation Act. Texas requires successful completion of driver education as a prerequisite for applicants under age 25. Texas approves and supervises private driving schools providing the education but does not specifically require accommodations for students with disabilities. The plaintiffs are deaf individuals who are otherwise eligible to obtain Texas driver’s licenses but were unable to find a program that would accommodate their disabilities. Certiorari was granted on the issue of whether, in the absence of a contractual or agency relationship with the state, the activities of the private driving schools constituted a service, program, or activity of the state. However, issues arising subsequently to the Court’s decision to hear the case are whether the case is now moot because the individual plaintiffs have all either received Texas licenses or moved out of state, and, if so, whether the decision of the Fifth Circuit should be vacated.


INTRODUCTION

Like many states, Texas uses private entities to provide services for its residents. This case involves driver education required for all new drivers under age 25. Texas prescribes the curriculum and approves schools to provide the education. Although it requires the schools to meet legal standards, it does not specifically ensure their compliance with the ADA or the Rehabilitation Act. Nor does it contract with designated schools to provide the education. Petitioners contend that under this structure, the schools are a service, program, or activity of the state, and thus Texas is in violation of the ADA and the Rehabilitation Act. Although considering this a very close case, the Fifth Circuit concluded that without direct contractual relationships, the education provided by the schools was not a state program. If the decision were to be upheld, persons seeking disability accommodations from entities closely tied to, but not acting contractually for, states would need to proceed separately against each entity under the public accommodations title of the ADA, Title III. In addition, the Rehabilitation Act will be inapplicable in such cases unless the entities receive federal funding, which may be unlikely. An alternative would be to seek modification of the state’s requirement for the education. Mootness is an unanticipated, but significant, new issue in the case.



ISSUES

Is a direct contractual or agency relationship with the entity providing a service necessary for the service to constitute a service, program, or activity of the state under the ADA Title II or the Rehabilitation Act?

If no individual plaintiffs continue to have a dispute with the state, class certification was not but could have been applied for, and other potential petitioners continue to exist with similar disputes with the state, is the case now moot?

If the case is now moot, should the decision of the Fifth Circuit be vacated or left to stand?


FACTS

Texas requires all would-be drivers under age 25 to complete an approved driver education course. Texas permits approved parent (or relative) taught courses to satisfy this requirement for students under age 18. It also permits courses offered by driver education schools approved by the Texas Education Agency (TEA) to satisfy the requirement for drivers under age 25. Pursuant to Texas statutes, at the time this case arose the TEA established curricula, designated textbooks and other materials, and licensed instructors for the schools; these functions are now performed by the Texas Department of Licensing and Regulation (TDLR). The level of state supervision is very detailed, down to the precise topics covered, the minutes allowed for breaks, the physical layout of classrooms, and the required score for the official state test of highway signs and traffic laws administered by the schools. Texas also approves the hiring of key staff members at the schools. Successful students obtain a certificate of completion from the schools which they then present to the state in order to apply for a driver’s license. Texas regulates how certificates are granted and collects a fee for each certificate conferred by a school. Texas does not contract with schools to provide the instruction.

Texas law requires approved schools to comply with all applicable laws and regulations. It does not, however, require schools seeking approval to demonstrate that they will comply with the ADA. Nor does it take action against specific schools until the U.S. Department of Justice has found a violation. By contrast, two other Texas programs do expressly require schools delivering instruction to state how they will accommodate students with disabilities; these are the program for already-licensed drivers who have received traffic citations and the Drug and Alcohol Driving Awareness Program.

The five plaintiffs in the case were all eligible to receive driver’s licenses in Texas. One was under age 18 and estranged from her parents; the others were between ages 18 and 25. All were individuals with significant hearing impairments and several were primary speakers of American Sign Language (ASL) with limited English proficiency. Each tried, and failed, to find an approved school in their location that would accommodate their disability. Without driver’s licenses and thus effective transportation, they lost educational and employment opportunities. They brought suit, claiming that the mandatory driver education program as administered by the TEA violated Title II of the ADA and § 504 of the Rehabilitation Act.

The case has an unusual procedural posture. The plaintiffs originally sought help from the Texas Department of Assistive and Rehabilitative Services, which contacted the TEA. TEA stated that it relied on the federal government to enforce the ADA against private entities such as the schools and recommended filing a complaint against the schools. The Texas Department of Assistive and Rehabilitative Services filed a complaint with the U.S. Department of Justice against the TEA, which referred the complaint to the Office of Civil Rights at the U.S. Department of Education. That office dismissed the complaint on the basis that the TEA did not have an affirmative duty to monitor the ADA compliance of the private driving schools. The plaintiffs ultimately brought suit in federal district court seeking declaratory and injunctive relief; in the fourth amended complaint, the complaint at issue here, the plaintiffs sought relief on their own behalf and on behalf of a class of similarly situated individuals defined as all “profoundly deaf individuals in the State of Texas whose primary language is [ASL]” and who are either age 16 or 17 and cannot take a parent taught driver education course or complete a driver education course without accommodations, or ages 18–24 and cannot complete a driver education course without accommodations. Texas moved to dismiss. The district court denied the motion but certified for interlocutory appeal whether “the Agency’s extensive and continuous involvement in the administration of the driver education program” brought the program within the scope of ADA Title II. The district court stayed all further proceedings until resolution of the interlocutory appeal.

The Fifth Circuit granted leave for the interlocutory appeal, reversed the district court’s denial of the motion to dismiss, and dismissed the case with prejudice for failure to state a claim on which relief might be granted. Ivy v. Williams, 781 F.3d 250 (5th Cir. 2015). Texas argued before the Fifth Circuit that the plaintiffs lacked standing because any harm they allegedly suffered was not caused by the activities of Texas but instead by the driver education schools. Texas also argued before the Fifth Circuit that the schools were not a service, program, or activity of the state. The Fifth Circuit ruled that the plaintiffs had standing: the harm allegedly suffered by the plaintiffs was “fairly traceable” to the TEA’s failure to remind the driver education schools of their ADA obligations. However, the Fifth Circuit also ruled that absent a contractual or agency relationship such that the private entity could be said to be acting for the state, the schools were not a service, program, or activity of the state. Judge Wiener concurred that the plaintiffs had standing but dissented from the judgment that the licensing structure was not a program of the state.

The plaintiffs then petitioned for certiorari with the TEA named as respondent; a complication in the case is that under Texas law, the driver schools have been regulated by the TDLR since 2015. The TDLR is a state agency that does not at present receive any federal funds and is not budgeted to do so; thus it is possible that the Rehabilitation Act claim in the case may no longer be viable.


CASE ANALYSIS

As mentioned above, the complaint at issue here sought both individual relief and relief on behalf of the class of profoundly deaf individuals in Texas subject to the driver education requirement. At the time the interlocutory appeal was granted and further proceedings stayed, plaintiffs had not moved for class certification. The case is concededly now moot as to the five individual plaintiffs; four have received Texas driver’s licenses and the fifth has moved out of state. So a second issue is whether, with the class allegations but without the actual motion for class certification, the case is now moot. If the case is moot, a third issue is whether the decision of the Fifth Circuit should stand or be vacated. If the decision stands, the law in the Fifth Circuit would be that in the absence of a contractual or agency relationship, a private entity providing a service for the state is not a service, program, or activity of the state. Plaintiffs will be unable to sue the state under Title II of the ADA or the Rehabilitation Act on the basis that such entities are public services, programs, or activities for which the state must assure Title II compliance. Plaintiffs’ alternatives would be to seek accommodations from the state, for example, by requesting modification of the certificate requirement or to seek judicial relief against the schools under ADA Title III’s prohibition of discrimination in public accommodations.

For a case argued before the Supreme Court, Ivy v. Morath has drawn comparatively little attention from amicus curiae. There are four briefs in support of the petitioners. A group of law professor experts in equal rights law contend that states should not be able to avoid the responsibilities of antidiscrimination law by privatizing services. The National Association of the Deaf and others outline the fundamental importance of driving for people with hearing impairments and argues that Texas has obligations to insure that the standards it sets for licensed driving schools require accessibility. The Paralyzed Veterans of America and other disability rights organizations argue that the broad mandate of the ADA requires that when a state administers programs providing an important public benefit such as a driver’s license and conditions that benefit on participation in a program run by a private entity, the state must assure that people with disabilities are not excluded from the program in a way that effectively denies them the public benefit. Texas Business Women, Inc. and other working Texans express concern that Texas is relying on a legal technicality with the result of denying many potentially working Texans access to a major public benefit. No amicus briefs have been filed on behalf of the respondents.

The U.S. Department of Justice, in support of neither party, argues that the case is moot and the decision of the Fifth Circuit should be vacated. The National Association of Counties and other governmental organizations, also in support of neither party, puts forth a standard for determining when public entities are required to ensure private entities’ compliance with the ADA: the private entities must be fairly said to be implementing a service, program, or activity of the state in the limited circumstances in which the state delegates implementation of a core governmental function or the public entity uses the private entity to implement an activity engaged in by the public entity for its own benefit.

Issue 1: The standard for determining whether a service, program, or activity provided by a private entity is a service, program, or activity of a public entity.

Title II of the ADA provides that no qualified individual with a disability “shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” (42 U.S.C. § 12132). Title II does not define “services, programs, or activities…”; the Rehabilitation Act provides that “program or activity” means “all of the operations of … a department, agency, special purpose district, or other instrumentality of a State…” (29 U.S.C. § 701(b)(1)(A)). The Title II regulations provide that public entities in providing aids, benefits, or services “may not, directly or through contractual, licensing, or other arrangements” engage in proscribed forms of discrimination (28 C.F.R. § 35-130(b)(1)). The regulations also provide that public entities “may not, directly or through contractual or other arrangements, utilize criteria or methods of administration that have the effect of subjecting qualified individuals with disabilities to discrimination…” (28 C.F.R. § 35(b)(3)(i)). Also, a public entity “may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor may a public entity establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. The programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part.” (28 C.F.R. § 35(b)(6).) Comparable provisions of the Rehabilitation Act regulations to § 35-130(b)(1) and § 35-130(b)(3) are found at 28 C.F.R. § 41.51 (b)(1), (3).

The parties agree that Texas sets licenses and sets curricular standards for schools providing driver education and issuing certificates of successful completion. They also agree that Texas requires certificates issued by the schools for certain individuals to receive a license. Their disagreements concern whether Texas may be sued under ADA Title II and the Rehabilitation Act for its arrangement with the schools. In so disagreeing, the parties differ on how they characterize the Texas “program” and on the legal standard for determining whether the program is an arrangement or operation “of” the state.

How the Texas program is characterized is critical to the analysis of whether it comes within Title II and the Rehabilitation Act. Petitioners and their supporters characterize the “program” as Texas’s structure for ensuring the qualifications of its drivers. For example, in his dissent, Judge Wiener wrote: “instruction is but one component of the broader program of driver education that is continually overseen and regulated in discrete detail by TEA … TEA superintends a wide-ranging driver training program in support of Texas’s overarching policy goal of ensuring safe roads for all …”. By contrast, Texas characterizes the “program” narrowly as the education provided by the driving schools.

The parties present a number of different standards for determining whether the structure of Texas’s program constitutes a program of the state. Some positions, such as Texas’s contention that there must be an agency or contractual relationship, assert necessary conditions for attributing actions of a private entity to the state. Others assert sufficient conditions under which a private entity may be considered to be providing a program of the state.

The first such standard, offered by Texas and affirmed by the Fifth Circuit, holds that private entities can be considered to provide a program of the state only if they are under a contractual or agency relationship with the state in providing the program. In reaching this holding, the Fifth Circuit characterized the program at issue as driver education narrowly construed. It then observed that Texas did not teach driver education or contract with the schools teaching driver education and therefore concluded that driver education could not be a “program” of the state. The Fifth Circuit’s analysis distinguished cases in which the state actually provided services for prisoners (Pa. Dept. of Corr. v. Yeskey, 524 U.S. 206 (1998)) or ran lotteries but licensed private vendors to sell tickets (Winborne v. Va. Lottery, 677 S.E.2d 304 (Va. 2009)). The analysis also relied on holdings that licensure or extensive regulation are insufficient to make a private entity a program of the state. As to the counter argument that the schools also provide the state benefit of a certificate of completion, Texas and the Fifth Circuit point out that individuals who cannot find accessible education programs could also petition the state for an accommodation to the certificate requirement. This suggested alternative is based on construing the Texas program as driver education rather than as a more overarching structure for qualifying drivers.

The second standard offered to the court, presented by the National Association of Counties (Counties) and others in support of neither party, suggests that private entities can constitute a program of the state in two limited circumstances: (1) if a core governmental function has been delegated to the private entity, or (2) if the state uses a private entity to implement an activity engaged in by the public entity for its own benefit. The Counties argue that this best captures the ADA goal of preventing public entities from discriminating either directly or indirectly. They also believe that it reflects the federalist concern that “it is not the job of state and local governments to enforce federal statutes.” Public entities must assure private compliance, they contend, when the private entities can “fairly” be said to be “implementing the government’s own services, programs, or activities.” Neither licensing nor regulating is sufficient to reach this standard. On the other hand, contractual or agency relationships are not necessary, so long as the private entity is implementing a government program.

Applying these standards, the Counties would conclude that the Texas program is a “highly unusual, and perhaps unique” implementation of a core governmental function through private entities. (Other examples suggested by the Counties are the operation of state correctional facilities and the administration of state mental health or health care systems.) Control of driving on public roads is a core governmental function. Because some would-be drivers must obtain a certificate of completion from one of the driving schools, Texas has in effect used the private entities to implement its licensing program. If the state were only regulating private driving schools, by contrast, it would not be required to ensure their ADA compliance. The Counties emphasize that in their view neither licensing nor detailed regulation is sufficient to make a private entity a program of the state. Importantly, the Counties’ analysis characterizes the program at issue as the entire process mandated by the state for obtaining a driver license, not merely as education provided by driver schools.

The third possible standard, offered by the U.S. government and by Judge Wiener in dissent from the Fifth Circuit holding, would find that private entities provide a program of the state if, all factors considered, they are engaged in an “other arrangement” with the state to provide the program. This position is also advanced by petitioners. These analyses construe the program as Texas’s structure for qualifying drivers, not just as driver education; the government states that “[d]river education … is a ‘program,’ because it is a systematic approach for ensuring that young drivers are qualified…”. The standard proposed by the federal government offers three factors that, in combination, make this structure an “operation” or “arrangement” and thus a program of the state: (1) the state’s comprehensive control of the private schools; (2) the state’s provision via the schools of state certificates for successful completion that are government records; and (3) the state requirement of the certificate for obtaining a driver’s license. Under such circumstances, private entities are functioning as intermediaries for the state. The government also emphasizes that the regulations clearly contemplate “arrangements” beyond contracts under which public entities may provide services that are subject to Title II and the Rehabilitation Act and that deference to the agency is warranted. Finally, the government argues that the state agency is best placed to monitor the schools and to determine which methods of ensuring access work best without fundamentally altering the state program. Moreover, the state is in the best position to provide a remedy that ensures nondiscriminatory access statewide. This multiple factor standard would suggest case by case, fact-intensive scrutiny by courts of whether the state use of private entities constitutes a state program.

On Judge Wiener’s analysis in dissent at the Fifth Circuit, the “closeness” of the relationship between the TEA and the schools makes this a state program. While contractual or agency relationships are sufficient to find a state program, on his view they are not necessary: “the critical issue is not whether a contract exists, but (1) whether a private party services the beneficiaries of the public entity’s program, and (2) how extensively the public entity is involved in the functions and operations of the private entity.”

A fourth standard is presented by the petitioners and several amici: state design and administration of an important public benefit is sufficient for a program to be a program of the state for purposes of Title II and the Rehabilitation Act; the state must then assure that people with disabilities have meaningful access to the program. The petitioners contend that Texas’s suggestion that petitioners could seek an accommodation from the state by waiving the certificate requirement “misses the point” that the Texas system is designed to provide novice drivers and users of the state roads with the benefits of education in safe driving. In the petitioners’ view, Texas is not merely licensing or regulating the driver schools; it is incorporating the schools into its program of driver safety, which suffices to make what the schools are doing part of a state program. As structured, however, the Texas program fails to give petitioners “meaningful access” to the benefit of knowledge about how to drive safely. Alexander v. Choate, 469 U.S. 287 (1985). Here, petitioners point to a tension between the Fifth Circuit’s determination that they had standing because of the TEA’s jurisdiction over driver education and the determination that the TEA is not legally required to ensure accessibility in the program it has crafted. They also note that the TEA has options for providing the benefit of driving instruction other than working through the schools, such as developing its own video course in ASL or disseminating the TEA-licensed ASL course offered at the Texas School for the Deaf.

The National Association of the Deaf and other organizations further emphasize the need for people to be able to drive, especially in rural areas without public transit options. They point out that deaf individuals are permitted to drive in all states and are overrepresented in occupations that rely heavily on driving, such as service technicians. The Association argues that the TEA and its successor the TDLR is the agency responsible for oversight of driver education and has failed to take steps to assure that the education is accessible. The TEA has not, for example, used its authority to regulate the schools’ curricula to require that they be designed to be accessible. Nor has it provided deaf students with the auxiliary aids and services that they might need to attend the driver schools, such as sign interpreters. The TEA also could require schools to submit any disability-related complaints and responses to them as part of the process of licensing the schools or their instructors.

Texas Business Women, Inc., and others also emphasize the importance of the public benefit of safe driving both to the state of Texas and to people with disabilities seeking driver’s licenses. On this basis, the amici would distinguish providers of driver education from other businesses licensed by the state: driver education is a public benefit that is a core function of the state.

Paralyzed Veterans of America and other disability rights organizations suggest a variant of this position: when a state administers a program providing an important public benefit and conditions that benefit on participation in a program operated by a private entity, it has a Title II obligation to ensure that people with disabilities are not excluded from the program and thus the benefit.

A final standard is offered by the Paralyzed Veterans and several other amici: whenever a state provides a public service through a private entity, this is a program of the state. The Paralyzed Veterans argue that it is necessary to realize the broad inclusion mandate of the ADA. The group of civil rights law professors argues that privatization of otherwise public services presents serious risks that public entities will be able to avoid statutory obligations such as antidiscrimination laws. These amici emphasize the application of ADA standards to privatization of public services such as privately operated charter schools, correctional facilities, institutional care, state employment services, low income housing, or disaster relief. The Paralyzed Veterans point out that the state may have many reasons for partnering with private entities, such as efficiencies or cost savings, but they should not be able to gain advantages by avoiding the requirements of the ADA. According to the Paralyzed Veterans, courts have not applied a bright-line test such as a contractual relationship in such circumstances; rather, they have considered whether the public entities are carrying out public programs, services, or activities. The civil rights law professors locate this case in the context of other cases in which states sought to evade constitutional and statutory responsibilities by privatization, including privatizing public schools to avoid integration. In response, Texas contends that it has not privatized driver education—it never provided this service. It also argues that unlike services such as corrections, driver education is not properly seen as a core function of the state.

Issue 2: Is the case now moot?

All parties agree that the individual petitioners’ claims are moot. Petitioners argue that the case is not moot because of the class allegations in the complaint as finally amended. The mootness issue concerns whether the class claims remain live, given that petitioners had never moved for class certification. The plaintiffs do not explain why they did not move for class certification during the eleven months between the filing of the version of their complaint at issue and the district court’s ruling on the motion to dismiss, or why they did not move for a ruling on class certification during the appeal before the Fifth Circuit. The mootness doctrine assures that the federal courts have live disputes before them. The Court has determined in a number of class action cases that mootness as to the named plaintiff’s individual claim does not moot claims of the class, e.g., Sosna v. Iowa, 419 U.S. 393 (1975). The Court has also held that denial of a motion for class certification can continue to be challenged even when the case has become moot as to the named plaintiff when the claim on the merits remains capable of repetition yet evading review, and thus members of the proposed class remain with interests in the litigation. If the denial of the motion for class certification is overruled, the merits of the class, claim can continue to be litigated; if the denial is upheld, the case would then become moot as to the class as well. United States Parole Commission v. Geraghty, 445 U.S. 388 (1980).

Geraghty holds that if there is a live issue about a motion for class certification, litigation is not moot as to the class, and claims on behalf of the class relate back to the original motion for class certification. Read strictly, it does not hold that a live motion for class certification is necessary to avoid mootness—but that it is sufficient. Geraghty does say that if the motion for class certification is ultimately denied, the case will be moot unless the identified plaintiffs continue to have standing. In such cases, there will no longer be a live motion to which the class claims can be related back. Texas and the United States read this to limit Geraghty’s reach to cases with a live motion for class certification. In support of this reading, they rely on the Court’s holding in Genesis Healthcare Corporation v. Symczyk, 133 S. Ct. 1523 (2013), that collective actions under the Fair Labor Standards Act (FLSA) become moot if named plaintiffs are offered settlements satisfying their claims before certification. Symczyk does state specifically that Geraghty’s holding is limited to cases in which the named plaintiff’s claim was live at the time class certification was denied. But Symczyk also clearly distinguished collective actions under the FLSA that do not involve creation of a class with separate legal interests but serve only to require that court-approved written notices be sent to other employees.

Petitioners seek to extend Geraghty to cases in which there are class allegations but there has not been a motion for class certification. They rely on two lines of argument for this extension: (1) that mootness can be avoided when the claims of class members are so inherently transitory that they vanish before class certification can be litigated, and (2) that mootness can be avoided when plaintiffs did not have a fair opportunity to litigate class certification.

Regarding inherently transitory claims, the Court has held that where named plaintiffs’ claims are so transitory that they evaporate before it is possible for courts to rule on them, successful rulings on class certification relate back to the original motion. In County of Riverside v. McLaughlin, 50 U.S. 44 (1991), for example, plaintiffs were arrestees seeking relief from the county’s failure to provide probable cause determinations within 36 hours to individuals arrested without a warrant. Detainees received probable cause hearings or were released long before the court could hear a motion for class certification, and so there was no effective way for their suit to be heard. Petitioners argue that their claims are transitory because it is highly likely that petitioners will age out of the Texas requirements before their class claims can be resolved, although they admit they are not as “starkly transitory” as those in McLaughlin. They point out that the litigation in this case has already lasted more than five years without reaching the question of class certification. Both Texas and the government argue that the court would have had ample time to rule on the named plaintiffs’ claims before they aged out of the system.

The petitioners’ argument that they did not have a fair opportunity to litigate the class claim rests in the procedural posture of the case. They contend that if the Fifth Circuit had simply ruled on the certified question—whether the TEA’s involvement brought the case within ADA Title II—they would have had the opportunity on remand at the district court to litigate the class question. Instead, the appellate court dismissed the case with prejudice, thereby foreclosing any further proceedings in the case. They claim the result is a “catch-22” for them: they cannot continue to litigate the case on the merits because they have not received class certification, and they cannot litigate the question of class certification because the case has been dismissed on the merits. Texas objects to this argument on the basis that the petitioners did not request the Fifth Circuit to remand for class certification in the event it concluded that the petitioners’ claims were not viable. The government argues that plaintiffs are simply asking for an equitable exception to the mootness doctrine for cases in which a case contains class allegations, an exception that should not be created.

Issue 3: If the case is now moot, should the decision of the Fifth Circuit be vacated?

Under 28 U.S.C. § 2106, federal appellate courts may vacate judgments brought before them for review. The statute gives courts flexibility; the common practice of the Supreme Court is to vacate lower court judgments in moot cases to allow for future relitigation of the issues between the parties in a way that preserves the rights of all. Alvarez v. Smith, 558 U.S. 87 (2009); United States v. Munsingwear, 340 U.S. 36 (1950). But the Court does not always vacate lower court judgments; it considers factors such as whether the mootness was a result of happenstance or whether the losing party had voluntarily surrendered legal claims due to settlement. When cases become moot before receiving final resolution before the Court, parties challenging the ruling below are unable to have their position heard. In such cases, the Court considers whether vacatur is appropriate to vacate the judgment below to open the possibility for relitigation of the issues (United States v. Munsingwear, 340 U.S. 36 (1950). The Court also considers the public interest in deciding whether to vacate the lower court decision in a case that has become moot.

Texas contends that because the petitioner’s actions caused the mootness here, the case is analogous to settlement and the lower court’s decision should not be vacated. Texas views vacatur as an “extraordinary remedy” that petitioners should not be able to use as a collateral attack on the judgment. In this characterization, Texas relies on U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 583 U.S. 18 (1994), a case in which the parties settled the bankruptcy litigation. In that case, the Court observed that “where mootness results from settlement, the losing party has voluntarily forfeited his legal remedy … thereby surrendering his claim to the extraordinary equitable remedy of vacatur.” The Court also stated that “exceptional circumstances may conceivably justify vacatur when mootness results from settlement,” circumstances not including that the settlement agreement provided for vacatur.

Petitioners and the government argue that the Fifth Circuit decision should be vacated. They contend that facts such as the petitioners having moved, obtaining their driver’s licenses during the five years of the case, or aging out of the requirement, are more like cases in which other proceedings have resulted in the return of seized property (Alvarez) than cases in which the petitioners have settled the litigation in question.

Petitioners and the government also argue that an important public interest is at stake in the case: what it characterizes as the “roadblock in the path of hundreds of young prospective drivers in Texas” that is the result of the Fifth Circuit’s decision. The petitioners also contend that there is a public interest in vacatur because the Fifth Circuit’s decision is binding precedent that the TEA is not required to ensure that Texas’s system of driver education complies with the ADA. Texas replies to the public interest argument by stating that there is sufficient opportunity to relitigate the issues in other circuits. Texas also asserts that the Fifth Circuit decision is not a “roadblock” for individuals seeking accommodations from driver’s license programs; they can challenge the schools under ADA Title III or challenge Texas’s certificate requirement under Title II.


SIGNIFICANCE

Of note on the practical significance of this case, according to a 2012 report of the Early Hearing Detection and Intervention program of the CDC, 1.4 out of every 1000 newborns screened are identified with some hearing loss (CDC, Hearing Loss in Children, http://www. cdc.gov/ncbddd/hearingloss/data.html). Extrapolating from this, of the approximately 400,000 births annually in Texas, approximately 560 residents would be expected to have some hearing loss and potentially need accommodations were they to seek to become licensed drivers. Many more individuals with disabilities nationwide may seek to participate in a wide variety of programs provided by private entities that are associated in some way with state services.

Legally, a decision that the case is moot because the petitioners never moved for class certification would appear not to change current mootness doctrine. It would, however, fail to extend that doctrine beyond the Geraghty circumstances to situations in which a motion for class certification could have been filed but was not. A mootness determination would also permit a Court evenly divided on the merits to postpone this decision to another day.

Refusal to vacate the lower court decision could make it more difficult for losing parties in mootness cases to avoid adverse lower court rulings, especially if the Court characterizes vacatur as an “extraordinary” remedy rather than an ordinary method for dealing with cases that have become moot. It would also leave as law in the Fifth Circuit the decision that a contractual or agency relationship is necessary for a private entity to be a service, program, or activity of the state under Title II of the ADA and the Rehabilitation Act. Other circuits might reach different conclusions, with the issue ultimately reaching the Supreme Court again. Vacating the lower court decision would open to further litigation whether the Texas program is subject to Title II of the ADA and the Rehabilitation Act, as well as what the Fifth Circuit standards and standards in other circuits are for state programs to come under Title II of the ADA or the Rehabilitation Act. An even split in the Court on vacatur would leave the Fifth Circuit ruling intact, however.

A ruling on the merits of the petitioners’ ADA claim could have far-reaching effects on the obligations of state governments to ensure ADA compliance. If the Court upholds the Fifth Circuit standard that there must be a contractual or agency relationship for the state to have ADA Title II or Rehabilitation Act obligations, it would likely encourage states to deliver services while avoiding creating these relationships. At a minimum, it would encourage structuring public use of private entities to avoid creating direct contractual or agency relationships. On the other hand, a ruling reversing the Fifth Circuit would extend public ADA Title II and Rehabilitation Act oversight responsibilities. How far the extension might go would depend on whether the Court adopts a limited approach such as that proposed by the Counties, a fact-specific approach analyzing the public involvement with the private entity, or the more far-reaching approach that public entities are responsible whenever they provide services through private entities.



Advertisement