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7 Tex. A&M L. Rev. Arguendo 1 (2019-2020)

handle is hein.journals/tsamlw7 and id is 1 raw text is: Volume 7 Texas A&M Law Review Arguendo 2019 FIFTH INDIFFERENCE: CLARIFYING THE FIFTH CIRCUIT'S INTENT STANDARD FOR DAMAGES UNDER TITLE II OF THE AMERICANS WITH DISABILITIES ACT Derek Warden* Abstract The Americans with Disabilities Actprohibits discrimination againstpeople with disabilities. Title II of the ADA applies to public entities. That same Title allows plaintiffs to obtain damages upon a showing that the discrimination was intentional. There are generally two possible standards of intent: (1) deliberate indifference or (2) animus. While most Circuit Courts expressly adopted the deliberate indifference model, the Fifth Circuit has not. Indeed, the Fifth Circuit has not adopted any standard and this has led to confusion. The confusion is not helped, moreover, by the sheer lack of justification offered by a number of the Circuit Courts who have adopted either standard. This Essay seeks to clear that confusion. It offers reasons why deliberate indifference, and not the animus standard, should apply to ADA Title II claims. Further, it explains why no Fifth Circuit precedent should be construed as prohibiting the adoption of the deliberate indifference standard. * Attorney, Burns Charest LLP in New Orleans. L.L.M. Candidate Tulane University 2020 J.D. & D.C.L. LSU Paul M. Hebert Law Center 2016. B.A. Political Science Louisiana Tech University 2013. Throughout my legal education and career, I have served with numerous firms and public service entities including: The Advocacy Center of Louisiana, Southeast Louisiana Legal Services, The Bioethics Defense Fund, The National Police Accountability Project, The New Orleans Workers Center for Racial Justice, The Promise of Justice Initiative, and the Public Defender for the Third Judicial District of Louisiana, and the Louisiana First Circuit Court of Appeal. My academic and practice areas include class actions, federal civil procedure, constitutional law, the Americans with Disabilities Act, and civil rights. My first position as a practicing lawyer was with the Advocacy Center as a legal fellow with assistance from AmeriCorps, Equal Justice Works, and the United States Department of Justice. I currently serve on the Boards of Directors for the Advocacy Center and the PLEASE Foundation. During law school, I served as graduate editor to the Journal of Civil Law Studies, published an extensive study on the Roman Civil Law historical underpinnings of the United States Constitution, and served as a research assistant to Professor Margaret Thomas. DOI: https://doi.org/10.37419/LR.V7.Arg.1 1

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