Divided Fifth Circuit Panel Decides Section 504 Student-on-Student Abuse Case

On Friday, the United States Court of Appeals for the Fifth Circuit issued an opinion in Stewart v. Waco Independent School District, --- F.3d ----, 2013 WL 1091654 (5th Cir., Mar. 14, 2013).  The facts of the case (based on the complaint, which is all that is before the court at this point) are quite sad. Andricka Stewart has an intellectual disability, as well as speech and hearing impairments.  In 2006 to 2007, when the events at issue in the case took place, she was a student at a high school operated by the defendant school district.  Late in 2005, after what the court calls "an incident involving sexual contact between Stewart and another student," the district modified her IEP to limit her contact with male students and ensure that she remain under close supervision while at school.  But, her complaint alleged, she experienced a number of further incidents of sexual abuse by other students.  The Fifth Circuit's opinion describes those incidents, as alleged in the complaint:

In February 2006, a male student sexually abused Stewart in a school restroom. The District concluded that Stewart "was at least somewhat complicit" in the incident and suspended her for three days. In August 2006, school personnel allowed Stewart to go to the restroom unattended, and she was again sexually abused by a male classmate. Finally, in October 2007, a male student "exposed himself" to Stewart. The District suspended her again. In none of these instances, according to Stewart, did the District take any steps to further modify her IEP or to prevent future abuse.

Stewart sued under, among other statutes, Section 504 of the Rehabilitation Act.  The district court dismissed for failure to state a claim.

In a divided opinion, the Fifth Circuit reversed.  Judge Catharina Haynes wrote the majority opinion, for herself and Judge Jennifer Walker Elrod.  The majority first ruled that Stewart did not state a claim under a student-on-student harassment theory because the complaint did not allege sufficient facts to "plausibly state" that the school district was deliberately indifferent to known disability-based harassment.  

But the majority concluded that "Stewart may nonetheless state a § 504 claim based on the District's alleged refusal to make reasonable accommodations for her disabilities."  In so holding, the court put a helpful gloss on the "bad faith or gross misjudgment" standard that some circuits apply to Section 504 claims in the school context.  The majority explained that "bad faith or gross misjudgment" is not a requirement for 504 claims in this context but is instead simply an "alternative way[] to plead the refusal to provide reasonable accommodations."  In particular, the bad faith or gross misjudgment standard makes clear that a district has failed in its accommodation obligation not only when it explicitly refuses a requested accommodation but also "when it fails to exercise professional judgment in response to changing circumstances or new information, even if the district has already provided an accommodation based on an initial exercise of such judgment."  The majority explained that a plaintiff can establish a violation of the reasonable accommodation requirement -- including under the bad faith or gross misjudgment standard -- without showing that the defendant school district's actions rose to the level of the deliberate indifference that is required to make a district liable for student-on-student harassment.  

Applying those standards to the facts as alleged in the complaint, the majority held that Stewart had plausibly alleged a violation of the school district's accommodation obligations.  The majority explained:

She alleges that she was sexually abused on campus on three separate occasions after the District initially modified her IEP. Regardless of what role Stewart allegedly played in facilitating this misconduct, her IEP was designed to prevent such encounters, and Stewart can plausibly argue at this stage that its effective implementation would have obviated any need for discipline. The complaint also contains allegations that the District knew of specific aspects of the alleged abuse that could have given rise to further modifications. For example, the first two additional instances both involved Stewart's use of the restroom and effectively occurred only three months apart, assuming an intervening three-month summer break, supporting a plausible argument that the District could have modified Stewart's IEP to prohibit her from going to the restroom unattended. It is plausible that failing to further modify an IEP in such circumstances grossly departs from standard educational practice.

The majority nonetheless "emphasize[d] that courts generally should give deference to the judgments of educational professionals in the operation of their schools."  And it reaffirmed that "[i]solated mistakes made by harried teachers and random bad acts committed by students and other third-parties generally will not support gross-misjudgment claims."  But it concluded that the complaint plausibly alleged something more than that.

Finally, the majority held that Stewart was not required to exhaust administrative remedies under the IDEA before bringing her Section 504 suit -- an issue that the school district had not raised before the Fifth Circuit, but that was the centerpiece of the dissent.  The majority noted, first, that the school district had "arguably forfeited administrative-exhaustion arguments" by failing "to raise the issue on appeal or in its motion-to-dismiss briefing before the district court."  As the majority observed, the circuits are split on the question whether IDEA exhaustion is jurisdictional.  The Fifth Circuit has not yet weighed in on that conflict.  And the majority saw no need to weigh in on it here, because it concluded that Stewart's was not the sort of case under which exhaustion was required under 20 U.S.C. § 1415(l):  "In short, Stewart's gross-misjudgment theory of liability—premised on sexual abuse fostered by the district's alleged disability discrimination—does not appear to seek damages 'as a substitute for relief under the IDEA'"(citing the Ninth Circuit's relatively recent decision in Payne v. Peninsula School District).

Judge Higginbotham dissented.  He argued that exhaustion of IDEA's administrative remedies was required because "at the heart of Ms. Stewart's lawsuit is a dispute over the content and implementation of her IEP, a matter that clearly falls within the purview of the IDEA and is capable of resolution through its administrative processes."  "Exhaustion aside," Judge Higginbotham argued that "when an IEP is in place, its shortcomings must find their answer within the detailed remedial scheme under the IDEA unless those shortcomings are somehow of a meaningfully distinct character."  To support this point, he relied on the Supreme Court's statement in Smith v. Robinson that "Congress did not intend a handicapped child to be able to circumvent [the IDEA's] requirements or supplement [its] remedies . . . by resort to the general antidiscrimination provision of § 504."  Judge Higginbotham failed to note, however, that Congress overturned Smith in Section 1415(l) -- the very statutory provision on which he relied for his exhaustion argument.  Section 1415(l) provides that, so long as the applicable exhaustion requirement is satisfied, the IDEA does not restrict the substantive rights accorded to kids with disabilities under Section 504 "or other Federal laws protecting the rights of children with disabilities."

Given the active circuit splits over the IDEA exhaustion requirement, which I've noted before, this may not be the last we hear of this case.  But Friday's opinion certainly makes me want to renew my membership in the Catharina Haynes fan club.

Zirkel on Public Schools' Impartial-Hearing Obligations Under Section 504

Just out: Perry A. Zirkel, The Public Schools' Obligation for Impartial Hearings Under Section 504, 22 Widener L.J. 135 (2012).  The abstract:

This article provides an in-depth examination of the legal sources and current practices specific to impartial hearings under Section 504 of the Rehabilitation Act for students in the K-12 public school context. In contrast to the Individuals with Disabilities Education Act (IDEA), this broader and overlapping statute and its regulations has received insufficient attention, particularly in terms of its impartial hearing mechanism and in light of its foreseeably increasing utilization. Part II of the article examines the Section 504 statute, regulations, and resolution avenues available under Section 504 other than the impartial hearing route. Part IV canvasses hearing officer decisions and available judicial case law, with special attention to jurisdiction. Part V provides a summary of (a) state laws and (b) state education agency policies and practices specific to the jurisdiction of IDEA impartial hearing officers for Section 504 student issues. The final part proposes a more clear and coherent framework for impartial hearings under Section 504 in relation to those under the IDEA.

Eighth Circuit Issues Important Communications Access Decision

Yesterday, the United States Court of Appeals for the Eighth Circuit issued an opinion in Argenyi v. Creighton University.  I've blogged about this case before.  Argenyi was a student at Creighton's medical school, which (according to the summary judgment record) refused various requests to accommodate his hearing impairment.  In particular, the school refused to provide computer-assisted real-time transcription (though it allowed Argenyi to provide it himself at his own substantial expense) or to provide an interpreter (or even permit Argenyi to use one at his own expense in clinical courses).  Although he succeeded in passing his courses during his first two years of medical school, Argenyi withdrew from school because he did not believe he was learning what he needed to, particularly in clinical courses.  Argenyi sued under Title III of the ADA and Section 504 of the Rehabilitation Act.  The United States District Court for the District of Nebraska granted summary judgment to the university, but the Eighth Circuit yesterday reversed.

The Eighth Circuit held that the ADA and the Rehabilitation Act apply an "equal opportunity" standard to determine what communications aids will be required under the statutes.  Those statutes, the court concluded, " each require Creighton to provide reasonable auxiliary aids and services to afford Argenyi 'meaningful access' or an equal opportunity to gain the same benefit as his nondisabled peers."  And the court summarized the elements of the record that, in its view, "provide[d] strong evidence that Creighton's accommodations were inadequate and that the University was not entitled to summary judgment:

In clinical courses Argenyi and his patients frequently failed to communicate effectively. He described in his affidavit a "consult with the parents of a two month old, with communication limited such that [he] did not know . . . why the infant was hospitalized," as well as his struggle to communicate with "emotional family members, patients with accents, and . . . a patient with a history of a broken jaw." Argenyi stated that Creighton had done "nothing to remedy [his] inability to understand what was happening in the clinic" and eventually advised him to "refrain from making requests for additional auxiliary aids and services."

After a careful review of the record, we cannot agree with the district court's conclusion that Argenyi's allegations were "unsupported." The record contains five letters from Argenyi's doctors to Creighton confirming his need for additional auxiliary aids and services. Dr. Backous wrote to Creighton during Argenyi's first month of medical school that "[i]t is imperative that [Argenyi] have access to visual cues for everyday communication and education," including "but . . . not limited to" closed captioning, CART, and a cued speech interpreter. He urged Creighton to consider Argenyi's specific requests, explaining that Argenyi "is the best person to judge what [assistance may be necessary] since no one else can really understand what he is hearing through his cochlear implant systems."

Creighton also received a report from Dr. Thedinger prior to Argenyi's second year, stating that the FM system actually worsened Argenyi's speech discrimination ability to 38 percent comprehension. In addition the record contains correspondence between Argenyi and Creighton in which he repeated requests for an interpreter in clinical courses, which were all denied. During his first two years of medical school, Argenyi borrowed more than $100,000 to pay for the auxiliary aids and services he needed to obtain the medical education he sought, and which Creighton declined to provide.

The district court had concluded that Argenyi's requested accommodations were not "necessary," largely because Argenyi was capable of attending school and passing his classes without them.  But the Eighth Circuit concluded that the district court applied the wrong legal standard.  In so holding, the Eighth Circuit relied on the Eleventh Circuit's recent ruling in Liese v. Indian River Hospital District (blogged about here) and the Ninth Circuit's recent ruling in Baughman v. Walt Disney World Company (blogged about here):

In Title III of the ADA and § 504 of the Rehabilitation Act, Congress required public accommodations and entities which receive public funding to furnish reasonable auxiliary aids and services so that all individuals have an equal opportunity to gain "a like" or "equal" benefit. Baughman, 685 F.3d at 1135; Liese, 710 F.3d at 343. Rather than merely ensure that Argenyi is not "effectively excluded" from its medical school, the ADA and the Rehabilitation Act require Creighton to "start by considering how [its educational programs] are used by non-disabled [medical school students] and then take reasonable steps to provide [Argenyi] with a like experience." Baughman, 685 F.3d at 1135.

This is a big win for Mary Vargas and Michael Stein of Stein & Vargas, Marc Charmatz of the National Association of the Deaf, and Dianne DeLair of Disability Rights Nebraska.

Eleventh Circuit Decides Important Hospital-Interpreter 504 Case

Yesterday, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Liese v. Indian River County Hospital District.  The plaintiffs, a married couple, both of whom have hearing impairments, brought this lawsuit for compensatory damages under Section 504 of the Rehabilitation Act.  They claimed that the defendant hospital violated the statute by refusing repeated requests for a sign-language interpreter when they went to the hospital's emergency room.  The district court granted summary judgment to the hospital.  The Eleventh Circuit reversed that judgment in yesterday's opinion.

There are three key rulings here.  The first is the court's conclusion that a sign-language interpreter, as opposed to other forms of communication, will often be especially necessary where a patient's decisions about emergency surgery are at issue:

Whether a particular aid is effective in affording a patient an equal opportunity to benefit from medical treatment largely depends on context, including, principally, the nature, significance, and complexity of the treatment. For example, emergency surgery is often a complicated concept to convey to a person who can hear well; the attendant risks, manner of surgery, prognosis, and advantages or disadvantages of immediate or postponed surgery can only complicate this communicative task. Thus, under circumstances in which a patient must decide whether to undergo immediate surgery involving the removal of an organ under a general anesthetic, understanding the necessity, risks, and procedures surrounding the surgery is paramount. Under these circumstances, auxiliary aids limited to written notes, body gestures, and lipreading may be ineffective in ensuring that a hearing-impaired patient receives equal opportunity to benefit from the treatment.  [The court here refers to the Department of Justice's effective communications regulations under Title III of the ADA.]

In this case, IRMH medical personnel conducted a battery of tests on Liese and then removed her gallbladder through emergency laparoscopic surgery. The auxiliary aids that the personnel relied on to communicate the nature of and need for the surgery consisted of mouthing words for the Lieses to try and lipread, writing notes, and pantomiming. Viewed in a light most favorable to the Lieses, the record contains sufficient evidence to show that these limited auxiliary aids were ineffective and that additional aids were necessary. At her deposition, Liese testified that she did not understand much of what she was purportedly told about her condition, prognosis, and proposed treatment by the attending emergency room personnel. Liese did not understand the battery of tests that were conducted on her. She said in her deposition that she repeatedly asked Dr. Perry why she was having gallbladder surgery when she was suffering from chest pains, not stomach pains, a question to which Dr. Perry apparently responded by writing a note that said, “remove it and you’ll feel better after that.” Liese flatly asserted that the doctor “didn’t tell me [or] explain anything.” In light of the major surgery required, under a general anesthetic, on an emergency basis, it seems to us fairly arguable that effective communication entails telling the patient more than that the proposed surgery will solve the problem.

The second key ruling is the court's holding that a plaintiff can recover damages for a Section 504 violation by showing deliberate indifference; intentional discrimination is unnecessary.  This was new ground for the Eleventh Circuit, though most other circuits have ruled the same way.

And the third key ruling is that the deliberate indifference of the hospital's doctors (and not just its highest-level administrators) was sufficient to warrant liability:

The question of how far up the chain of command one must look to find an “official” is necessarily a fact-intensive inquiry, since an official’s role may vary from organization to organization. See Doe, 604 F.3d at 1256-57. In the § 504 context, we conclude that an official is someone who enjoys substantial supervisory authority within an organization’s chain of command so that, when dealing with the complainant, the official had complete discretion at a “key decision point” in the administrative process. See Doe, 604 F.3d at 1256-57. The “key decision point” language reflects the practical reality that, while some decisions are technically subject to review by a higher authority, such a review is not part of the entity’s ordinary decision-making process. See id.

In the present case, a reasonable juror could conclude from this record that the doctors at IRMH were officials within the meaning of Gebser. Viewed in a light most favorable to the Lieses, the record shows at least that the doctors had complete discretion to decide whether or not to provide the Lieses with an interpretive aid. While any Hospital staff member, be it a doctor or a nurse, had the authority to ask for an interpreter or to retrieve the Hospital’s MARTTI video interpreting system from the storage closet, on this record the evidence suggests strongly that the doctors had supervisory authority. Indeed, the doctors could overrule a nurse’s decision to not provide an auxiliary aid. In contrast, there is no evidence here to suggest that the doctors’ decisions were subject to reversal. Thus, unlike the nurses, the doctors enjoyed complete discretion over whether or not to provide the Lieses’ with an interpreter or other auxiliary aid.

A review of IRMH’s “Communication Barriers” policy confirms this arrangement. The policy provides that interpretive aids, such as interpreters and the MARTTI video interpreting system, are all “available” to provide assistance in communicating with patients. However, the policy offers no guidance or recommendation as to when doctors or nurses should use these aids; rather, it affords the IRMH staff complete discretion in these matters. Similarly, the training that IRMH provided to its staff on MARTTI dealt exclusively with how to use MARTTI, not when to use it.

Congratulations to FOB Matt Dietz on this huge win.

Horrid Student-on-Student Harassment Case

Yesterday, Judge David G. Larimer of the United States District Court for the Western District of New York issued an opinion denying the defendants' motion to dismiss in Preston v. Hilton Central School District, --- F.Supp.2d ----, 2012 WL 2829452 (W.D.N.Y., July 11, 2012).  The plaintiffs brought this case on behalf of their son, A.P., who has Asperger's Syndrome, to challenge what, if the complaint is to be believed, was a vastly inadequate school response to truly horrendous harassment.  The case isn't especially legally significant, but the facts were so striking (though, alas, not unique) that I thought I would share them at length:

Plaintiffs contend that throughout the 2009–2010 school year, A.P. was routinely bullied by students in a Basic Electronics Class at Hilton High School, who harassed and mocked him on a daily basis, including calling him, “fucking retard,” “asshole,” “faggot,” and “bitch,” and subjecting him to frequent comments of a sexual nature, as well as comments disparaging his cognitive abilities, such as, “Fuck you, you autistic piece of shit.” Plaintiffs also allege that the classroom teacher, Helmer, used profanity and shared inappropriately sexual stories and anecdotes in class. Plaintiffs state that they e-mailed Bartalo concerning the harassment as early as October 10, 2009 and were assured by Bartolo that the incidents would be investigated and that Helmer would be admonished. Helmer apologized to the plaintiffs shortly thereafter, and Bartolo assured plaintiffs that A.P.'s one-on-one aide, Frey, would attend the Basic Electronics class with him for the remainder of the semester as a deterrent to further bullying. However, according to plaintiffs, Frey's presence has no affect on the students' continued sexual comments and insults toward A.P., and Frey stopped accompanying him to class after a few weeks. 

Plaintiffs allege that neither Bartalo nor Helmer took any further action to deter the harassment of A.P. or to discipline the students involved. In November 2009, plaintiffs complained about the continuing harassment to MacDonald, a special education teacher, and Cowey. Plaintiffs met with Bartalo in December 2009, and e-mailed MacDonald in January 2010, to ask why Frey was no longer attending classes with A.P. Plaintiffs also contacted Helmer to report that students were continuing to ridicule A.P. Notwithstanding these contacts, plaintiffs allege that the defendants took no meaningful action. 

After the Basic Electronics class concluded mid-way through the school year, A.P. enrolled in a Construction class. According to the amended complaint, the environment in the Construction class was even more abusive, and from the start of classes on February 1, 2010, other students in that class openly mocked A.P., calling him “gay,” “homo,” “retard,” “asshole,” “faggot,” “bitch” and “loser” during virtually every class. Once again, the District arranged for Frey to attend classes with A.P., but her presence was ineffective at curbing the harassment and as before, she stopped accompanying A.P. to classes after a few weeks. Thereafter, A.P. was allegedly subjected to constant vulgar and/or offensive language directed at his perceived mental capacity and/or sexual preference, including being asked whether he watched pornography, was gay, or masturbated, and whether he would perform oral sex on another male student “for $10.” On one occasion, A.P. was asked by a male classmate, “can I put my dick in your ass?” Students in the class threw small objects such as pencils and small pieces of wood at A.P., and drew sexually explicit pictures on the blackboard. Plaintiffs allege that A.P. complained to the Construction class teacher, Loe, who was present during much of the harassment, but that Loe took no action except to have the offensive drawings erased, and did not discipline or rebuke A.P.'s tormentors. Plaintiffs allege that they complained to Loe, MacDonald, Cowey, and Bartalo, each of whom cautioned that “teens will be teens” but promised they would address the problem, yet did nothing to stop or punish the ongoing harassment. Plaintiffs contend that near the end of the school year, the daily bullying of A.P. was being perpetrated by approximately half of the students in Loe's Construction class. 

On May 6, 2010, the students allegedly surrounded A.P. in the classroom and openly ridiculed a model home project he had completed, but Loe, who was present, did not intervene. Later, a student falsely accused A.P. of smashing that student's model home project. A.P.'s parents alerted MacDonald about the bullying conduct of other students toward A.P., and informed him that as a result, A.P. was having increasing difficulty completing assignments, and was developing serious emotional issues. The following day, A.P. found himself emotionally and mentally unable to complete the school day, and disclosed to his parents several occasions of harassment that he had not previously shared. 

Plaintiffs thereafter met with Bartalo and MacDonald, and learned that AP's grades had dropped by 40% in two of his classes, which plaintiffs attributed to the bullying and harassment of A.P. A.P.'s parents agreed to send A.P. back to school for the remainder of the year. Two return attempts were made, but proved unsuccessful. Plaintiff allege that A.P. continued to be sexually harassed and insulted by other male students each time he attempted to return to the classroom, to the point where he was unable to function emotionally or academically. In an attempt to ensure that A.P. received credit for his course work, plaintiffs located a qualified individual who was able to administer A.P.'s final exams to him outside and independent from the school. A.P. twice attempted to take the exams, but allegedly experienced emotional breakdowns that made him unable to complete them. 

Plaintiffs attempted to have A.P. accepted into the Communications and Social Skills program for children with Asperger's syndrome, but found that if A.P. was accepted to the program, he could not enroll until January 2011, and would be required to attend Hilton Central High School in the interim, an option plaintiffs determined to be a non-viable, given A.P.'s refusal and apparent psychological inability to return. 

The plaintiffs sued under, among other statutes, Title II of the ADA and Section 504 of the Rehabilitation Act.  The school district moved to dismiss those claims on the ground that the harassment was not disability based.  The district court quite properly concluded that the allegations in the complaint were sufficient to make out a case that the students were motivated by A.P.'s disability in harassing him, and that the school district was deliberately indifferent to the harassment.

Bill Frezza Doesn't Like DOL's Proposed Affirmative Action Regulations

See this rather conspiratorial column from Forbes.

Proposed Department of Labor Rules for Disability-Based Affirmative Action by Federal Contractors

Tomorrow's Federal Register will contain a notice of proposed rulemaking from the Department of Labor's Office of Federal Contract Compliance Programs regarding the obligations of federal contractors to avoid discrimination against, and provide affirmative action to, workers with disabilities.  The law requiring affirmative action in this context has been on the books since 1973, but it has basically served as an antidiscrimination requirement like the ADA.  The proposed rules would give real meaning to the affirmative action obligation in this context for the first time.  Notably, they include a 7 percent nationwide "utilization goal" of people with disabilities, covering federal contractors with 50 or more employees and a federal contract of at least $50,000.  Failure to meet the goal would not constitute a violation of the law, but it would trigger certain procedural obligations.  The notice provides for a 60-day public comment period.

Employees with Disabilities Allege Bias at SSA

See this article by that title. It begins:

Barbara Penny, a former supervisor at the Social Security Administration, says employees with disabilities at the agency are passed over for training and are viewed as a costly burden because they often require special accommodations, such as interpreters or electronic readers. As a result, they aren’t promoted as often as other employees.

In at least one instance, Penny, who lives in Auburn, Wash., said she and other members of a panel charged with reviewing top candidates for a job opening at the agency were provided details on each candidate’s race, gender and disabilities — factors that shouldn’t be considered in personnel decisions. The list was shredded after the selection panel made its decision, she said.

“There is no doubt in my mind that disability was a factor in decision-making because it was more convenient for SSA not to pick the disabled person who needed an expensive accommodation,” she said. Penny’s account is laid out in a new discrimination complaint that charges Social Security with systemic discrimination against employees with disabilities. More than 40 current and former employees who say they were denied promotions at the agency have provided statements in support of the complaint, which was filed June 27 before the Equal Employment Opportunity Commission.

If these allegations are true, this is outrageous.

D.C. Circuit: Sexual Relations is a Major Life Activity, and Employer Need Not Know of Limitation to be Liable

On Friday, the D.C. Circuit issued its opinion in Adams v. Rice. The plaintiff, a breast cancer survivor who was rejected for the Foreign Service, sued under the Rehabilitation Act. The district court granted summary judgment to the State Department, on the ground that the plaintiff had no record of a disability. The D.C. Circuit reversed, by a 2-1 vote. Judge Tatel's majority opinion held that sexual relations is a major life activity and that the plaintiff had presented sufficient evidence that her breast cancer, in the past, substantially limited that major life activity. The State Department argued that, because it did not know that the plaintiff's breast cancer had substantially limited her ability to engage in sexual relations, it could not be held liable for discriminating against her. But the court rejected that argument. Relying on the Supreme Court's decision in Bragdon v. Abbott, Judge Tatel's majority opinion concluded that the defendant would be liable if it discriminated on the basis of a known impairment, even if it did not know what major life activities the impairment substantially limited.

NYT on ACB v. Paulson

The New York Times has this interesting article on the currency ruling, with a lot of quotes from people with visual impairments who really are happy about it.

LA Times Article on ACB v. Paulson

In tomorrow's LA Times, David Savage has a good, brief article on the currency case that I noted yesterday.

D.C. Circuit Holds Paper Money Violates Rehabilitation Act

What a way to welcome me back! Today, in a very significant ruling that surely won't be the last word in the case, a divided panel of the D.C. Circuit held that our current system of paper money denies meaningful access to people with visual impairments and thus violates the Rehabilitation Act. From Judge Rogers's majority opinion (joined by GWB appointee Judge Griffith):

Congress expressly intended the Rehabilitation Act to ensure that members of the disabled community could live independently and fully participate in society. 29 U.S.C. § 701(b)(1). The Secretary acknowledges that a paper currency system designed for the sighted means that millions of visually impaired individuals are dependent on the kindness of others, unless they purchase expensive electronic equipment, in using U.S. currency. Such dependence, which is amply supported by the record, constitutes a denial of meaningful access to U.S. currency that is not remedied by use of existing coping mechanisms. The record further demonstrates that the Secretary has not met his burden to show, as an affirmative defense, that each identified accommodation that is facially reasonable, effective, and feasible would impose an undue burden. A large majority of other currency systems have accommodated the visually impaired, and the Secretary does not explain why U.S. currency should be any different. The financial costs identified by the Secretary are not out of line with the costs associated with other currency changes that the Secretary has made and could be reduced were accommodations made as part of other planned changes. Further, this lawsuit seeks neither alteration of the system of using paper currency as such nor a specific accommodation dictated by court order, leaving the Secretary to choose the means of bringing U.S. currency into compliance with section 504. Accordingly, we affirm the grant of partial summary judgment and remand the case for the district court to address the request for injunctive relief.

From Judge Randolph's dissent:

In short, my colleagues have not identified a single accommodation that is undisputedly “reasonable, effective, and feasible,” Maj. Op. at 15, and for which there is no material issue about an undue burden. They do not know what if anything should be implemented as an accommodation and neither does the American Council of the Blind, the Treasury, the district court, or the National Federation of the Blind (who supports Treasury). Yet my colleagues affirm the grant of summary judgment against the Secretary. In doing so they state that because the Secretary did not show that every possible measure would impose an undue burden, he is barred on remand from showing that any particular measure would have this effect. Maj. Op. at 29-30, 33. This cannot possibly be correct.