Compounding the Error: "Deliberate Indifference" vs. "Discriminatory Animus" Under Title II of the ADA

One incorrect decision reached by the Ninth Circuit Court of Appeals in 1998 has created a quagmire of cases over the past five years. In Ferguson v. City of Phoenix, the court decided that a plaintiff suing under Title II of the Americans with Disabilities Act ("ADA) had to prove intentional discrimination in order to recover compensatory damages. This decision resulted in an ongoing struggle in the courts about how to define intentional discrimination. But the struggle was unnecessary.

Title II of the ADA does not require intentional discrimination and the courts never should have applied any analysis of the type of discrimination perpetuated by Title II defendants. This article will first set forth the background and history of the Ferguson decision. Next, it will examine the fallout from that decision: five years of cases that make clear how the Ninth Circuit erred in its approach to Title II. Finally, this article will address appropriate solutions to the problem created by the court when it required proof of intentional discrimination before allowing recovery of compensatory damages in Title II cases.