Give me a place to stand on, and I can move the earth.
A deaf man is admitted to the hospital for emergency surgery. The hospital, unable to locate an available American Sign Language interpreter, relies on the man’s children to communicate with him. As the man’s health declines, the children become increasingly overwhelmed by their task. Forced to miss school in order to translate unfamiliar medical terminology for their dying father, the children later sue the hospital on their own behalf; they allege that the hospital has discriminated against them based on their association with a disabled person in violation of both the Americans with Disabilities Act of 19902 (ADA) and the Rehabilitation Act of 1973.3 Do they have a case?4
To be sure, this is not the prototypical lawsuit under either Act. In the normal course of events, the father, a disabled individual, will have standing to sue on his own behalf.5 But in a quirk of both statutes, nondisabled plaintiffs may also sue—not to vindicate their father’s rights6 but to litigate their own. This somewhat neglected provision, known as “associational standing,”7 has resulted in substantial judicial confusion both at the district-court level8 and in the circuit courts of appeals,9 especially in the Rehabilitation Act context.
This Comment seeks to resolve the confusion by defining the scope of standing under the Rehabilitation Act. It does so, first, by engaging with the Rehabilitation Act’s statutory language and recent Supreme Court precedent interpreting that same language as it arises in different statutory contexts. Second, this Comment considers standing under the Rehabilitation Act with an eye toward that Act’s uneasy entanglement with the ADA. Even though Congress intended the ADA to bolster the Rehabilitation Act’s efficacy as a safeguard for disability rights,10 scholars have noted that the incentives for bringing suit under the ADA are too weak on their own to lead to adequate enforcement.11 Because the Rehabilitation Act authorizes remedies that are unavailable under the ADA, the Rehabilitation Act appears to be uniquely poised to effectuate the antidiscrimination aims of both statutes.
This Comment is organized as follows: Part I summarizes the history of disability antidiscrimination statutes in federal court from the end of World War I to the present and outlines the areas in which the modern statutes overlap. Part II delves into the Supreme Court’s competing standing doctrines and considers the recent circuit split on the associational standing issue in the Rehabilitation Act context. In the process, it surveys the arguments for both a broad and a narrow interpretation of the Rehabilitation Act’s scope. Part III contemplates a solution born of statutory interpretation and economic analysis. Part III.A observes the necessity, in light of two recent Supreme Court opinions authored by Justice Antonin Scalia,12 of formally importing the zone-of-interests test into disability law. Finally, Part III.B argues that this zone of interests, once the test is adopted, should be wide. Interpreting the Rehabilitation Act’s standing provision broadly not only better accords with the Act’s statutory language, but it would also aid in deterring discriminatory conduct toward disabled individuals and their associates, potentially leading to expanded protections for the largest minority group13 in the United States.
- 1. Archimedes, The Works of Archimedes xix (Cambridge 1897) (T.L. Heath, ed). It is highly unlikely, of course, that Archimedes had legal standing in mind when he wrote these famous words.
- 2. Pub L No 101-336, 104 Stat 327, codified at 42 USC § 12101 et seq.
- 3. Pub L No 93-112, 87 Stat 355, codified at 29 USC § 701 et seq.
- 4. This hypothetical is loosely based on the facts of Loeffler v Staten Island University Hospital, 582 F3d 268, 271–74 (2d Cir 2009), discussed in Part II.B.
- 5. See 29 USC § 794a(a)(2); 42 USC § 12188.
- 6. While courts generally bar litigants from suing to enforce the legal rights of others, there are limited exceptions. See generally Brian Charles Lea, The Merits of Third-Party Standing, 24 Wm & Mary Bill Rts J 277 (2015). See also Allen v Wright, 468 US 737, 750–56 (1984). While third-party standing is important to the law of standing generally, it is not relevant to associational standing because associational plaintiffs seek to vindicate their own rights in court—not the rights of others.
- 7. Note that “associational standing” in this context means standing to sue for discriminatory acts toward a person as a result of that person’s association with a disabled individual. For the purposes of this Comment, the term “associational” does not reach entities or organizations. For an explanation of this other type of associational standing as it relates to advocacy organizations, see generally Kelsey McCowan Heilman, Comment, The Rights of Others: Protection and Advocacy Organizations’ Associational Standing to Sue, 157 U Pa L Rev 237 (2008).
- 8. See, for example, Collins v Dartmouth-Hitchcock Medical Center, 2015 WL 268842, *8 (D NH). See also Part II.C.
- 9. Compare, for example, Loeffler, 582 F3d at 279, with McCullum v Orlando Regional Health-Care System, Inc, 768 F3d 1135, 1143 (11th Cir 2014). See also Part II.
- 10. See Part I.C.
- 11. See, for example, Samuel R. Bagenstos, Law and the Contradictions of the Disability Rights Movement 124–28 (Yale 2009); Ruth Colker, The Disability Pendulum: The First Decade of the Americans with Disabilities Act 183 (NYU 2005).
- 12. See generally Thompson v North American Stainless, LP, 562 US 170 (2011); Lexmark International, Inc v Static Control Components, Inc, 134 S Ct 1377 (2014).
- 13. See Mark C. Weber, Understanding Disability Law v (LexisNexis 2007).