MEMORANDUM
From: Margo Schlanger
Date: December 9, 2015
Re:
The ADA/Rehab Act and solitary confinement
This memo analyzes the potential use of Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. § 794 (the Rehab Act, Rehabilitation Act, or Section 504) and Title II of the Americans
with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (the ADA or Title II), to argue against the use
of solitary confinement or other very high-security housing for people with disabilities. The
analysis under the ADA and the Rehabilitation Act is substantially similar. They impose five
kinds of requirements that affect jails and prisons. These overlap, conceptually, but are usefully
analyzed separately. They are:
•
•
•
•
•

General prohibitions against discrimination
Reasonable modifications
Physical accessibility
Integration mandate
Communications-related requirements (not relevant here, and therefore not further
discussed)

The basic takeaway from this memo is that automatic or categorical decisions to house people
with disabilities in solitary confinement because of those disabilities are the most easily
attackable as discriminatory. As housing decisions get more individuated, challenging the
decisions gets harder, but there remains room to try under several theories. There is also a novel,
but I think strong, argument that the conditions within solitary or high security housing must be
reasonably modified to accommodate the special vulnerabilities of people with disabilities.
This memo proceeds in four parts:
I. Statutory framework .........................................................................................2
II. Regulations .......................................................................................................4
III. Applicability to Solitary Confinement (Theories and Defenses) .....................8
Theory 1: Disparate treatment
Theory 2: Reasonable modification of: the route into solitary; the conditions in solitary;
the route out of solitary.
Theory 3: Integration Mandate
Defense 1: Fundamental alteration/undue financial and administrative burden.
Defense 2: Legitimate safety requirements and direct threat.
Defense 3: Placement in solitary is “necessary to provide [disabled inmates] with aids,
benefits, or services . . . as effective as those provided to others.”
Theory 4: Equal opportunity to participate in/benefit from services, within solitary
IV. Strategic considerations ..................................................................................19
It is followed by an Appendix, which includes relevant plaintiffs’ briefs and the like.

Note: there’s really very little relevant authoritative law in this area. This memo errs on the side
of including material that might be helpful—but it’s mostly suggestive and orienting rather than
strong precedent.
I.

Statutory framework

For state and local jails and prisons, both the Rehab Act and the ADA almost certainly apply. 1
Plaintiffs should probably plead both. 2 In the rare situation that only one of the statutes is
available, it probably doesn’t make a lot of difference. See 42 U.S.C. §§ 12201(a) (“nothing in
this chapter shall be construed to apply a lesser standard than the standards applied under title V
of the Rehabilitation Act of 1973 (29 U.S.C. 790 et seq.) or the regulations issued by Federal
agencies pursuant to such title”); 12134(b) (“regulations . . . shall be consistent with . . . the
coordination regulations under part 41 of title 28, Code of Federal Regulations (as promulgated
by the Department of Health, Education, and Welfare on January 13, 1978), applicable to
recipients of Federal financial assistance under section 794 of title 29”).
Section 504, 29 U.S.C. § 794(a), provides:
No otherwise qualified individual with a disability … shall, solely by reason of her or his
disability, be excluded from the participation in, be denied the benefits of, or be subjected
to discrimination under any program or activity receiving Federal financial assistance or
under any program or activity conducted by any [Federal] Executive agency …

1

The ADA’s Title II covers all non-federal jails and prisons: its definition of “public entity” includes state and
local government agencies, without respect to federal support. 42 U.S.C. § 12131(1). Federal agencies, however, are
not included under Title II. Instead, federal jails and prisons are covered by the Rehab Act. The Rehab Act also
covers most state and local jails and prisons, because they receive federal financial assistance. See 29 U.S.C.
§ 794(b)(1)(A) (defining “program or activity” as “a department, agency, special purpose district, or other
instrumentality of a State or of a local government”). For indexes to federal support, see
http://www.justice.gov/crt/possible-federal-sources-assistance-federally-assisted-programs-or-activities, citing:
•
•
•
•

Office of Management and Budget, USA Spending.gov, available at http://www.usaspending.gov/
U.S. Department of Health and Human Services, Tracking Accountability in Government Grants System
(TAAGS), available at http://taggs.hhs.gov/index.cfm
Office of Justice Programs, OJP Grant Awards, available at http://grants.ojp.usdoj.gov:85/selector/main
Single Audit Act and OMB Circular 133 database, available at
http://harvester.census.gov/sac/dissem/entity.html

2

Because the Rehab Act is Spending Clause legislation (rather than being authorized by the Fourteenth
Amendment’s Section 5), Rehab Act coverage may be helpful in damages actions to avoid the issue whether
Congress was constitutionally authorized to make a state liable in damages for the conduct in question. See
Tennessee v. Lane, 541 U.S. 509 (2004); U.S. v. Georgia, 546 U.S. 151 (2006). But in injunctive suits against state
and local facilities, Rehab Act coverage may not add much; the ADA applies, the Section 5 issue is not relevant
(because Eleventh Amendment immunity need not be abrogated), and the ADA covers the same ground as the
Rehab Act but in more detail and occasionally a bit more strictly. On the other hand, there may be some lurking
Commerce Clause issue. Play things safe; plead both if you can.

-2-

The Supreme Court has explained that this provision guarantees “meaningful access” to qualified
individuals with a disability to federally conducted or supported programs, services, or activities.
Alexander v. Choate, 469 U.S. 287, 301 (1985).
Title II, 42 U.S.C. § 12132, similarly provides:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such entity.
“[S]ervices, programs, or activities” encompass the operations of jails and prisons. Pa. Dept. of
Corr. v. Yeskey, 524 U.S. 206, 210–11 (1998).
So, to bring a lawsuit under the ADA and/or the Rehabilitation Act, prisoners with disabilities
must show that they are: (i) disabled within the meaning of the statutes, (ii) “qualified” to
participate in the relevant program, and (iii) excluded from, not allowed to benefit from, or
subjected to discrimination in the program because of their disability. 42 U.S.C. § 12132; 29
U.S.C. § 794(a).
Disability. Under both the ADA and Section 504, a person has a disability if: (i) a physical or
mental impairment substantially limits one or more of his or her major life activities; (ii) he or
she has a record of such an impairment; or (iii) he or she is regarded as having such an
impairment. 29 U.S.C. § 705(20)(B); 42 U.S.C. § 12102(2). Particularly relevant here, “mental”
impairments are expressly included if they substantially limit major life activities. The ADA
regulations on the definition of disability, at 28 C.F.R. § 35.104(1)(i), are quite capacious.
Moreover, in the ADA Amendments Act of 2008, Congress clarified/broadened the definition.
Under the ADAAA, an impairment constitutes a disability even if it (1) only substantially limits
one major life activity; or (2) is episodic or in remission, if it would substantially limit at least
one major life activity if active. ADA Amendments Act of 2008, Pub. L. No. 110-325 Sec. 3,
122 Stat. 3553, 3556. People with serious mental illness certainly have a disability; people with
mental illness that is less serious probably do.
Qualified individual. The Rehab Act does not define “qualified individual with a disability,” but
the ADA does. That definition, 42 U.S.C. § 12131(2), provides:
[A]n individual with a disability who, with or without reasonable modifications to rules,
policies, or practices, the removal of architectural, communication, or transportation
barriers, or the provision of auxiliary aids and services, meets the essential eligibility
requirements for the receipt of services or the participation in programs or activities
provided by a public entity.
Reasonable modification is thus the Title II (and Title III) equivalent of the more familiar
“reasonable accommodation” requirement in Title I.
Discrimination. It is evident from the statutory text that discrimination can mean categorical
“exclu[sion] from participation in or . . . deni[al of] the benefits of the services, programs, or

-3-

activities of a public entity,” but the language “or be subjected to discrimination by any such
entity” makes it clear that discrimination is also broader. The concept is further developed in
caselaw and the ADA regulation, as discussed in Parts II and III of this memo.
II.

Regulations

Section 504’s regulations are issued by federal funding agencies. Given the subject matter, the
two that are likely most relevant here are the DOJ “coordination regulation,” at 28 C.F.R. pt. 41,
which is a sort of benchmark for all the others, and the DOJ Office of Justice Programs
regulation, at 28 C.F.R subpt. G § 42, 501-42.540, which governs DOJ funding of prisons. The
Rehab Act regulations are essentially consistent with the ADA regulations. Generally, though,
it’s the ADA regulations, at 28 C.F.R. pt. 35, that are most useful; they are newer, more detailed,
and sometimes stricter. So that’s what I’ll analyze here. Note that they are legislative regulations,
promulgated after notice and comment, and with explicit statutory authorization, 42 U.S.C.
§ 12134(a), so they are entitled to substantial deference. See Olmstead v. L.C., 527 U.S. 581,
597-98 (1999) (“Because the Department is the agency directed by Congress to issue regulations
implementing Title II, . . . its views warrant respect. We need not inquire whether the degree of
deference described in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.
837, 844 (1984), is in order.”).
The ADA Title II regulation adds considerable detail to the statute’s non-discrimination
requirement:
A. General prohibition against discrimination
28 C.F.R. § 35.130 is the major source of law. It provides for both disparate treatment and
disparate impact liability (see (b)(3)), and states in pertinent part:
(a) No qualified individual with a disability shall, on the basis of disability, be excluded
from participation in or be denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any public entity.
(b)

(1) A public entity, in providing any aid, benefit, or service, may not, directly or
through contractual, licensing, or other arrangements, on the basis of disability—
(i) Deny a qualified individual with a disability the opportunity to participate
in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with a disability an opportunity to participate
in or benefit from the aid, benefit, or service that is not equal to that
afforded others;
(iii) Provide a qualified individual with a disability with an aid, benefit, or
service that is not as effective in affording equal opportunity to obtain the
same result, to gain the same benefit, or to reach the same level of
achievement as that provided to others;
(iv) Provide different or separate aids, benefits, or services to individuals with
disabilities or to any class of individuals with disabilities than is provided
to others unless such action is necessary to provide qualified individuals

-4-

with disabilities with aids, benefits, or services that are as effective as those
provided to others; . . .
...
(vii) Otherwise limit a qualified individual with a disability in the enjoyment
of any right, privilege, advantage, or opportunity enjoyed by others
receiving the aid, benefit, or service.
(2) A public entity may not deny a qualified individual with a disability the
opportunity to participate in services, programs, or activities that are not separate
or different, despite the existence of permissibly separate or different programs or
activities.
(3) A public entity may not, directly or through contractual or other arrangements,
utilize criteria or methods of administration—
(i) That have the effect of subjecting qualified individuals with disabilities to
discrimination on the basis of disability;
(ii) That have the purpose or effect of defeating or substantially impairing
accomplishment of the objectives of the public entity’s program with
respect to individuals with disabilities; . . .
This same regulation develops the idea of “reasonable modifications,” and also includes what is
usually called the “integration mandate.” See emphasized language below:
(b)

(7) A public entity shall make reasonable modifications in policies, practices, or
procedures when the modifications are necessary to avoid discrimination on the
basis of disability, unless the public entity can demonstrate that making the
modifications would fundamentally alter the nature of the service, program, or
activity.
(8) A public entity shall not impose or apply eligibility criteria that screen out or
tend to screen out an individual with a disability or any class of individuals with
disabilities from fully and equally enjoying any service, program, or activity,
unless such criteria can be shown to be necessary for the provision of the service,
program, or activity being offered.

(c) Nothing in this part prohibits a public entity from providing benefits, services, or
advantages to individuals with disabilities, or to a particular class of individuals with
disabilities beyond those required by this part.
(d) A public entity shall administer services, programs, and activities in the most
integrated setting appropriate to the needs of qualified individuals with disabilities. . . .
In guidance accompanying the original 1991 regulation, the Department of Justice explained that
“integrated setting” means “a setting that enables individuals with disabilities to interact with
non-disabled persons to the fullest extent possible.” 28 C.F.R. pt. 35, App. B (1991), available at
https://www.law.cornell.edu/cfr/text/28/part-35/appendix-B.

-5-

This regulation also includes an affirmative defense 3 relating to safety:
(h) A public entity may impose legitimate safety requirements necessary for the safe
operation of its services, programs, or activities. However, the public entity must ensure
that its safety requirements are based on actual risks, not on mere speculation,
stereotypes, or generalizations about individuals with disabilities.
Finally, 28 C.F.R. § 35.139 adds the similar “direct threat” defense: 4
(a) This part does not require a public entity to permit an individual to participate in or
benefit from the services, programs, or activities of that public entity when that individual
poses a direct threat to the health or safety of others.
(b) In determining whether an individual poses a direct threat to the health or safety of
others, a public entity must make an individualized assessment, based on reasonable
judgment that relies on current medical knowledge or on the best available objective
evidence, to ascertain: the nature, duration, and severity of the risk; the probability that
the potential injury will actually occur; and whether reasonable modifications of policies,
practices, or procedures or the provision of auxiliary aids or services will mitigate the
risk.
B. Program Accessibility
The requirement of physical accessibility gets separate treatment in the regulations. As
developed there, for existing facilities the requirement is not accessibility for each and every
facility, but to the public entity’s programs considered more generally. This is generally called
“program accessibility,” and 28 C.F.R. § 35.149-35.152 are the “program accessibility” or
“program access” provisions. 28 C.F.R. § 35.149 specifies:
Except as otherwise provided in § 35.150, no qualified individual with a disability shall,
because a public entity’s facilities are inaccessible to or unusable by individuals with
disabilities, be excluded from participation in, or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any public
entity.
The rules are stricter for buildings that post-date the ADA. See 28 C.F.R. § 35.150-35.151. But
even when facilities predate the (1990) ADA, the requirement is that “each service, program, or
activity so that the service, program, or activity, when viewed in its entirety, [be] readily
accessible to and usable by individuals with disabilities.” 28 C.F.R. § 35.150(a).
3

Cf. 28 C.F.R. pt. 35, App. A, at 589 (1994), available at http://www.gpo.gov/fdsys/pkg/CFR-2013-title28vol1/pdf/CFR-2013-title28-vol1-part35-appA.pdf (“the burden of proof to demonstrate that such devices cannot be
operated in accordance with legitimate safety requirements rests upon the public entity”).
4

See, e.g., Dadian v. Vill. of Wilmette, 269 F.3d 831, 840 (7th Cir. 2001) (defendant has the burden of showing a
direct threat).

-6-

Although § 35.150(a) may require a public entity to modify its existing facilities to be accessible
to individuals with disabilities, it “does not necessarily require a public entity to make each of its
existing facilities accessible to and usable by individuals with disabilities.” 28 C.F.R.
§ 35.150(a)(1). Under this subsection, a public entity is not required to take an action that it “can
demonstrate would result in a fundamental alteration in the nature of a service, program, or
activity or in undue financial and administrative burdens.” 28 C.F.R. § 35.150(a)(3). However, a
public entity “shall take any other actions” to “ensure that individuals with disabilities receive
the benefits or services provided by the public entity.” Id.
Any decision not to take an action on such grounds must be made “after considering all resources
available for use in the funding and operation of the service, program, or activity” and must be
accompanied by a written statement of the reasons setting out the basis for the determination. Id.
Notwithstanding the fundamental alterations and undue burden defenses available to public
entities, “the program access requirement of title II should enable individuals with disabilities to
participate in and benefit from the services, programs, or activities of public entities in all but the
most unusual cases.” Preamble to 1991 Title II Regulation, 56 Fed. Reg. 35708.
A very useful summary of all of this, with much more detail, is included in United States’
Memorandum of Law as Amicus Curiae on Issues under the Americans with Disabilities Act and
Rehabilitation Act that are Likely to Arise on Summary Judgment or at Trial, Miller v. Smith,
6:98-cv-109-JEG (S.D. Ga., June 21, 2010), available at
http://www.ada.gov/briefs/miller_amicus.pdf (and in Appendix). Note that this brief was filed in
June 2010, and there were new regulations—though not, I believe, different in pertinent part—
published September 2010.
C.

Prison/Jail Specific Program Access

The program access subpart of the regulations includes specific provisions governing jails and
prisons. 28 C.F.R. § 35.152. This section repeats the prior requirement of non-discrimination in
program access, with specific reference to jails and prisons. It also increases the specificity of the
integration mandate, emphasizing prison and jail housing. It provides, in pertinent part:
(b) Discrimination prohibited.
(1) Public entities shall ensure that qualified inmates or detainees with disabilities
shall not, because a facility is inaccessible to or unusable by individuals with
disabilities, be excluded from participation in, or be denied the benefits of, the
services, programs, or activities of a public entity, or be subjected to
discrimination by any public entity.
(2) Public entities shall ensure that inmates or detainees with disabilities are
housed in the most integrated setting appropriate to the needs of the individuals.
Unless it is appropriate to make an exception, a public entity–
(i) Shall not place inmates or detainees with disabilities in inappropriate
security classifications because no accessible cells or beds are available;
(ii) Shall not place inmates or detainees with disabilities in designated medical
areas unless they are actually receiving medical care or treatment;
-7-

(iii) Shall not place inmates or detainees with disabilities in facilities that do
not offer the same programs as the facilities where they would otherwise be
housed; and
(iv) Shall not deprive inmates or detainees with disabilities of visitation with
family members by placing them in distant facilities where they would not
otherwise be housed.
(3) Public entities shall implement reasonable policies, including physical
modifications to additional cells in accordance with the 2010 Standards, so as to
ensure that each inmate with a disability is housed in a cell with the accessible
elements necessary to afford the inmate access to safe, appropriate housing.
III.

Applicability to Solitary Confinement

So what has just been set out includes:
• General prohibition against discrimination—including:
o categorical discrimination, which can be a matter of disparate treatment or
disparate impact.
o refusal to implement reasonable modifications to allow equal participation
(bounded by the defense of fundamental alteration)
• Physical/program access requirements (bounded by fundamental alteration and undue
financial/administrative burden defenses)
• Integration mandate
• All subject to the “legitimate safety requirements” and “direct threat” defenses.
Now to apply this set of ideas to the use of solitary confinement for people with disabilities—
who, it should be noted, are likely to constitute a large portion of those in solitary confinement.
Theory 1: When prisoners are isolated “because of” their serious mental illness, intellectual
disability, or physical disability, that constitutes unlawful discrimination, depriving them
unjustifiably of equal access to services and programs provided most other prisoners. 28
C.F.R. § 35.130(b)(1)(i)-(iv).
This theory applies cleanly when a prison assigns people with disabilities to segregation cells
without any additional factors. For example, in Armstrong v. Brown, 4:94-cv-02307, 2015 WL
496799 (N.D. Cal. Feb. 3, 2015), available at http://www.clearinghouse.net/chDocs/public/PCCA-0001-0040.pdf (and in the Appendix), the District Court held that the state was “regularly
housing Armstrong class members [prisoners with mobility impairments] in administrative
segregation due to lack of accessible housing, in violation of this Court’s previous orders and the
Americans with Disabilities Act (ADA).” Similarly, in its findings letter under the Civil Rights
of Institutionalized Persons Act (CRIPA), addressing conditions of confinement at the
Pennsylvania State Correctional Institution at Cresson, the Department of Justice concluded that
the ADA required Cresson to “modify its policies and practices so prisoners with serious mental
illness or intellectual disabilities are not automatically or categorically housed in segregation and
instead receive the services they need.” See Civil Rights Division, U.S. Dep’t of Justice,
Investigation of the State Correctional Institution at Cresson and Notice of Expanded
Investigation (May 31, 2013), at pp. 33-34, available at

-8-

http://www.justice.gov/sites/default/files/crt/legacy/2013/06/03/cresson_findings_5-31-13.pdf
(and in the Appendix). The judicial finding in Armstrong sounded in disparate treatment; the
DOJ’s Cresson finding was a bit more ambiguous (the sentence before the one just quoted
mentions “methods of administration that have the effect of subjecting prisoners with serious
mental illness or intellectual disabilities to discrimination” which sounds more like disparate
impact than disparate treatment). 5
But what if the assignment is not directly motivated by the prisoner’s disability (and the prison’s
inability to cope with that disability), but by some conduct caused by the disability? For
example, what if the entity assigns a prisoner to segregation not because he has a serious mental
illness, but because of misconduct whose origin is serious mental illness? An apparent minority
of courts categorize this kind of decision as “because of disability,” but more disagree. 6 These
cases are mostly ADA Title I cases and Rehab Act cases. I haven’t located any ADA Title II
cases addressing the issue. Note that there’s therefore a (very weak) argument that the plaintiffs
are helped by the text of Title II prohibiting discrimination “by reason of such disability,” rather
than—like Section 504—”solely by reason of . . . disability.”
The courts that have rejected ADA/Rehab Act liability on these kinds of allegations considered
them to be making a (flawed) disparate treatment claim. The rulings have—sometimes
explicitly—thus left open the alternative theories of disparate impact and reasonable
accommodation/ modification. The most prominent example is the Supreme Court’s decision in
Raytheon Co. v. Hernandez, 540 U.S. 33 (2003), an ADA employment action in which the Court
rejected the Ninth Circuit’s holding that a particular policy (a ban on rehiring past employees
who had been dismissed for misconduct) constituted disability discrimination when the
misconduct in question was caused by a disability. The Court explained that this liability theory
was properly considered not under disparate treatment but under disparate impact, which the
plaintiff had failed to timely raise. Similarly, Judge Posner wrote in Matthews v. Commonwealth
Edison Co., 128 F.3d 1194, 1196 (1997), the most-cited of these misconduct cases, that disparate
treatment was the wrong label for this kind of claim: “If [a dyslexic plaintiff] wants to show
5

When the Department of Justice restated its position in a subsequent filing, in Coleman v. Brown, it stated the
position more firmly using disparate treatment language. See Response of the United States of America to
Defendants’ Motion in Limine No.4: To Exclude the Statement of Interest (Document 4919), Coleman v. Brown,
2:90-cv-00520-LKK-DAD (E.D. Cal. Nov. 12, 2013), available at http://www.clearinghouse.net/chDocs/public/PCCA-0002-0041.pdf.
6

See Kelly Cahill Timmons, Accommodating Misconduct Under the Americans with Disabilities Act, 57 FLA. L.
REV. 187, 211-222 (2005). Professor Timmons catalogs the cases that have found that a response to disabilitycaused misconduct occurs “because of” disability, including: Teahan v. Metro-North Commuter Railroad, 951 F.2d
511 (2d Cir. 1991); Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1086 (10th Cir. 1997); Doebele v.
Sprint/United Mgmt. Co., 342 F.3d 1117, 1134 (10th Cir. 2003); McKenzie v. Dovala, 242 F.3d 967, 974 (10th Cir.
2001); Nielsen v. Moroni Feed Co., 162 F.3d 604, 608 (10th Cir. 1998). On the other side, finding that a response to
disability-caused misconduct is not “because of” disability, she cites, inter alia: Brumfield v. City of Chicago, 735
F.3d 619, 630-31 (7th Cir. 2013); Matthews v. Commonwealth Edison Co., 128 F.3d 1194, 1195 (Posner, J.) (7th
Cir.1997); Palmer v. Circuit Court of Cook Cnty., 117 F.3d 351, 352 (7th Cir.1997); McElwee v. County of Orange,
700 F.3d 635, 641 (2d Cir.2012); Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 172 (2d Cir.2006); Jones v. Am.
Postal Workers Union, 192 F.3d 417, 429 (4th Cir.1999); Collings v. Longview Fibre Co., 63 F.3d 828, 832 (9th
Cir.1995); Hamilton v. Southwestern Bell Telephone Co., 136 F.3d 1047, 1052 (5th Cir. 1998).

-9-

instead that reading quickly is not a necessary qualification for the job in question—then he has
to switch to the disparate-impact approach and challenge the qualification on the basis of its
effect and its reasonableness rather than on the basis of its motivation.”
Both these opinions identified disparate impact as the appropriate theory when plaintiffs allege
that a general rule or policy penalizing their conduct has the effect of discriminating against them
because of their disability. So in the context of assignment of prisoners with disabilities to
solitary confinement because of disability-related misconduct, would it make sense to frame the
challenge as a disparate impact claim? That’s a harder question than it might seem.
It’s true that the Title II regulations’ two references to “effect[s]” unambiguously allow a
disparate impact theory of liability. 28 C.F.R. §§ 35.130(b)(3)(i), (ii). These two provisions
forbid “criteria or methods of administration” that have the “effect of subjecting qualified
individuals with disabilities to discrimination on the basis of disability,” or have the “purpose or
effect of defeating or substantially impairing accomplishment of the objectives of the public
entity’s program with respect to individuals with disabilities.” In addition, 28 C.F.R.
§ 35.130(b)(8)’s language similarly suggests a disparate impact approach: “A public entity shall
not impose or apply eligibility criteria that screen out or tend to screen out an individual with a
disability or any class of individuals with disabilities from fully and equally enjoying any
service, program, or activity, unless such criteria can be shown to be necessary for the provision
of the service, program, or activity being offered.” (emphasis added) Disparate impact liability
always allows defendants to defend a challenged neutral rule as justified notwithstanding its
disproportionate effect, and this last provision includes text useful to understanding what kind of
justification would be allowed in a Title II context.
In addition, courts have stated that ADA Title II disparate impact claims do state a private cause
of action. See, e.g., Ability Ctr. of Greater Toledo v. City of Sandusky, 181 F. Supp. 2d 797, 798
(N.D. Ohio 2001) aff’d, 385 F.3d 901 (6th Cir. 2004); Wisconsin Cmty. Servs., Inc. v. City of
Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006).
But as with other civil rights statutes in recent decades, disparate impact liability is nearly
hypothetical; there are remarkably few examples of successful disparate impact litigation under
any civil rights statute in the past 15-20 years, and I’m aware of just one under the ADA’s Title
II—Crowder v. Kitigawa, 81 F.3d 1480 (9th Cir. 1996). In this case, the Ninth Circuit explained,
as it struck down a dog quarantine that kept service-dog users from travelling to Hawaii,
“Congress intended to prohibit . . . those forms of discrimination which deny disabled persons
public services disproportionately due to their disability.” 7 I don’t advise a disparate impact
claim because disparate impact cases are notoriously difficult to win. Courts are deeply
suspicious of them.
7

In Coleman v. Zatechka, 824 F. Supp. 1360 (D. Neb. 1993), the district court cited some of the disparate impact
language as it required the University of Nebraska to treat a student with a disability like other students in
assignment of dormitory roommates, notwithstanding the University’s explanation that its exclusion of the plaintiff
was not because of her disability but because of her need for occasional personal attendant care. But the challenged
exclusion in that case operated only against students with disabilities, even though the proffered explanation was
broader.

-10-

Under the ADA, much more typically, cases in this mode get analyzed not under the heading of
disparate impact, but as failures to implement reasonable modifications. These types of liability
are best considered as conceptually separate. See Wisconsin Cmty. Servs., Inc. v. City of
Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006) (ADA Title II liability “may be established by
evidence that (1) the defendant intentionally acted on the basis of the disability, (2) the defendant
refused to provide a reasonable modification, or (3) the defendant’s rule disproportionally
impacts disabled people”); McPherson v. Michigan High Sch. Athletic Ass’n, 119 F.3d 453, 460
(6th Cir.1997) (“[T]here are two methods that would allow the plaintiff to demonstrate that the
MHSAA’s actions were taken because of his disability: either (1) by offering evidence that
learning disabilities were actually considered by the MHSAA in formulating or implementing the
eight-semester rule, or (2) by showing that the MHSAA could have reasonably accommodated
his disability, but refused to do so. In the alternative, it might be possible under the ADA for the
plaintiff to rely on a disparate impact theory, but the plaintiff has specifically disavowed any
reliance on a disparate impact theory, and it is not necessary for us to explore the availability and
contours of such a claim in the ADA context.”); Henrietta D. v. Bloomberg, 331 F.3d 261, 276–
77 (2d Cir. 2003) (“[A] claim of discrimination based on a failure reasonably to accommodate is
distinct from a claim of discrimination based on disparate impact.”).
The reasonable modification theory that follows has much stronger precedent and basis in the
regulations than a disparate impact theory.
Theory 2: Failure to make reasonable modifications to policies, procedures, and practices
to meet the needs of prisoners with disabilities results in their solitary confinement—which
is unlawful for this reason. 28 C.F.R. § 35.130(b)(7).
A failure to implement a reasonable modification needed by a person with a disability is a type
of discrimination; the duty to implement reasonable modifications is, as already explained, an
independent basis of liability. See Tennessee v. Lane, 541 U.S. 509 (2004) (describing the
reasonable modification requirement as prophylactic). Under the ADA, a prison must “take
certain proactive measures to avoid discrimination.” See, e.g., Chisolm v. McManimon, 275 F.3d
315, 324-25 (3d Cir. 2001).
While it’s best for a plaintiff to make a request for a reasonable modification, “[w]hen a disabled
individual’s need for an accommodation is obvious, the individual’s failure to expressly ‘request’
one is not fatal to the ADA claim.” Robertson v. Las Animas County Sheriff’s Dep’t, 500 F.3d
1185, 1197 (10th Cir. 2007); Hughes v. Colorado Dep’t of Corr., 594 F. Supp. 2d 1226, 1244-45
(D. Colo. 2009).
In this context, the relevant failures to make reasonable modifications might include claims like:
•
•

Using solitary confinement as a routine management technique to cope with the
difficulties presented by prisoners with disabilities.
Treating behavior that manifests serious mental illness or intellectual disability as a
disciplinary rather than mental health or habilitation matter.

-11-

•
•
•

•

•
•

Denying opportunities for parole and access to programs and services to prisoners with
serious mental illness who have incurred disciplinary infractions as a result of untreated
mental illness.
Failing to take account of mental illness or intellectual disability in making housing
decisions, setting up a prisoner in a double cell in which conflict and violence are likely.
Inadequate mental health care more generally, including a variety of obstacles to
obtaining treatment. This argument was made by plaintiffs in Anderson v. State of
Colorado, No. 10-cv-01005-WYD-KMT (D. Colo). See Plaintiff’s Response to Motion
for Summary Judgment (July 21, 2011), available at
http://www.clearinghouse.net/chDocs/public/PC-CO-0017-0006.pdf (and in Appendix),
and Plaintiff’s Trial Brief (Apr. 23, 2012),
http://www.clearinghouse.net/chDocs/public/PC-CO-0017-0007.pdf (and in Appendix).
Within solitary or other kinds of special housing: eligibility and step-down type
requirements for prisoners in solitary confinement or other high-security housing that are
ill suited or even impossible for prisoners with disabilities, so that they cannot “obtain the
same result [or] gain the same benefit” from these programs, 28 C.F.R.
§ 35.130(b)(1)(iii), or criteria that “screen out” prisoners with disabilities from “fully and
equally enjoying” such program. 28 C.F.R. § 35.130(b)(8). These arguments were made
in the briefs just cited, in Anderson v. State of Colorado, and also (by the same counsel
and in front of the same judge) in Sardakowski v. Clements, No. 12-cv-01326-RBJ-KLM.
See Plaintiff’s Response to Defendants’ Motion for Summary Judgment, (D. Colo. Dec.
26, 2013), available at http://www.clearinghouse.net/chDocs/public/PC-CO-00240001.pdf (and in Appendix).
Similarly, eligibility criteria for other kinds of programming or services—visits, phone
calls, various property privileges, group therapy, etc.—that deprive prisoners with
disabilities the opportunity to participate and benefit from those programs.
Failing to accommodate prisoners’ particular (disability-related) vulnerability to the
conditions of isolated confinement by softening those conditions. I really like this
argument, which was made by the Plaintiffs in Disability Advocates, Inc. v. New York
State Office of Mental Health, 1:02-cv-04002-GEL (S.D.N.Y.), described at
http://www.clearinghouse.net/detail.php?id=5560). As Plaintiff’s counsel explained it to
me, the argument ran as follows: “The stressful conditions of isolated confinement, and
attendant lack of access to programs (including, among other things, post-release
planning) has an impermissibly harsh and more frequent impact upon inmates with
serious mental illness.” There was no ruling on the issue.

Conceptually, these are claims for reasonable modification of: the route into solitary; the
conditions in solitary; the route out of solitary.
These kinds of claims have gotten some, albeit limited, support in district court opinions. See,
e.g.:
•

May v. Sheahan, No. 99-cv-0395, 1999 WL 543187 (N.D. Ill. 1999) (denying motion to
dismiss because jail’s hospital shackling policy had more severe impact on disabled
individuals).

-12-

•

•

•

•

Purcell v. Pa. Dep’t of Corr., No. 00-cv-181J, 2006 WL 891449, at *13 (W.D. Pa. Mar.
31, 2006) (a genuine issue of material fact existed as to whether a “reasonable
accommodation” was denied when the DOC refused to circulate a memo to the staff
concerning a prisoner’s disability (Tourette’s Syndrome) that explained that some of his
behaviors were related to his condition, not intentional violations of prison rules).
Scherer v. Pa. Dep’t of Corr., No. 3:04-cv-00191, 2007 WL 4111412, at *44 (W.D. Pa.
Nov. 17, 2007) (because the prisoner’s misconduct may have been a result of his mental
illness, “the lack of modification of its disciplinary procedures to account for . . . [his]
mental illness . . . possibly resulted in a violation of the ADA”).
Biselli v. Cty. of Ventura, No. 09-cv-08694 CAS (Ex), 2012 U.S. Dist. LEXIS 79326, at
*44-45 (C.D. Cal. June 4, 2012) (finding that placement in administrative segregation
based on conduct specifically linked to mental illness, without input from mental health
staff, may constitute violation of the ADA) (note: not available via Westlaw, but the
PACER version is included in Appendix).
Sardakowski v. Clements, No. 12-cv-01326-RBJ-KLM, 2013 WL 3296569, at *9 (D.
Colo. July 1, 2013) (rejecting motion to dismiss for failure to state a claim given
plaintiff’s argument “that he has been unable to complete the requirements of the
leveling-out program successfully because of his mental impairment and because CDOC
officials have prevented him from obtaining adequate treatment and accommodation so
that he may progress out of solitary confinement”); see also Reporter’s Transcript:
Hearing on Motion for Summary Judgment and Final Trial Preparation Conference, p. 41
(Feb. 25, 2014), available at http://www.clearinghouse.net/chDocs/public/PC-CO-00240002.pdf (and in Appendix) (rejecting defendants’ motion for summary judgment on the
same claim).

Theory 3: Housing people with disabilities in special housing or solitary confinement
violates the integration mandate. 28 C.F.R. § 35.130(d); 28 C.F.R. § 35.152.
When a prison houses prisoners with disabilities in special housing devoted to disabled prisoners
(or in an infirmary, without actually providing medical care or treatment), it violates the dictates
of 28 C.F.R. § 35.130(d) if it is not “the most integrated setting appropriate” to the prisoners’
needs. Many of these kinds of housing assignments are, if not quite solitary confinement, at least
close to it. Similarly, it could violate 28 C.F.R. § 35.152(b)(2)(iii) (public entity “[s]hall not
place inmates or detainees with disabilities in facilities that do not offer the same programs as the
facilities where they would otherwise be housed”) if, for example, all the mental health housing
was high security, so that prisoners who would otherwise have access to the gentler conditions in
minimum or medium security were forced into harsher environments in order to get treatment.
This argument was made in some detail by plaintiffs in Disability Advocates, Inc. v. New York
State Office of Mental Health, 1:02-cv-04002-GEL (S.D.N.Y.), described at
http://www.clearinghouse.net/detail.php?id=5560. As plaintiffs’ counsel explained it to me, the
argument was:
Defendants’ disciplinary rules, policies, and practices must be reasonably modified to
accommodate individuals with disabilities who cannot tolerate isolated confinement. See
42 U.S.C. § 12132(2); Henrietta D., 331 F.3d at 273-74, 291 (failure to make reasonable
accommodation to a public program constitutes discrimination under the ADA and

-13-

Rehabilitation Act). The stressful conditions of 23-hour isolated confinement have a
particularly severe effect upon prisoners with serious mental illness, and are a principal
cause of deteriorated mental health for many such prisoners. Defendants have failed to
reasonably modify their disciplinary process so that penal consequences which are known
to severely worsen the psychiatric conditions of prisoners with serious mental illness are
not imposed. Defendants have not taken sufficient steps to alter the conditions of isolated
confinement so that prisoners with serious mental illness will not suffer harm from such
confinement, nor have they provided alternatives that do not injure prisoners with
psychiatric disabilities.
As stated earlier, prolonged periods of isolated confinement cause severe harm to
prisoners with serious mental illness. Though regulations now require hearing officers to
consider mental health when imposing punishment, inmates with serious mental illness
continue to receive SHU and keeplock sentences, while inmates with mental illness who
were serving SHU terms handed down prior to the new regulations remain in SHU. The
Case Management Committees (“CMCs”), which are authorized to recommend the
transfer of inmates with mental illness out of SHU, have not ameliorated the problem
. . . . Defendants’ failure to provide viable alternatives to limit the suffering of prisoners
with mental illness in isolated confinement is a direct violation of the ADA and
Rehabilitation Act.
In Armstrong v. California, the court found that the plaintiff prisoners, who had mobility
impairments, were being housed in solitary confinement simply because there were no accessible
cells available elsewhere. See Armstrong v. Brown, No. C 94-2307, 2015 WL 496799 (N.D. Cal.
Feb. 3, 2015), available at http://www.clearinghouse.net/chDocs/public/ PC-CA-0001-0040.pdf
(and Appendix). This, the district court held, violated the clear terms of the provisions in 28
C.F.R. § 35.152, which apply the integration mandate in the context of prisoner housing. Id.
More commonly, though, the confinement of prisoners with disabilities to solitary confinement
isn’t because of a shortage of accessible cells elsewhere, but because prisoners choose to manage
difficult disability-related behavior with solitary confinement rather than less harsh housing
assignments and services. In this setting, the integration mandate argument is really context
specific.
It seems unlikely to be enough for liability that the same word—“segregation”—is used to
describe solitary confinement and the ADA violation in Olmstead v. L.C., 527 U.S. 581 (1999),
in which the Court required deinstitutionalization of people with disabilities who had been
unjustifiably assigned to receive various state-provided services in segregated institutions rather
than the community. If a prisoner who happens to have a disability is in a segregation unit that is
“segregating” all the prisoners within, disabled and non-disabled alike, from the general
population, that’s probably not sufficient for an Olmstead violation. Still, solitary confinement
that is because of a prisoner’s disability seems plausibly non-integrated, in the sense meant under
Olmstead. And one advantage of thinking about it this way is that the integration mandate
effectively presumes harm, as a matter of regulatory interpretation. For more on Olmstead and its
implementation, see Civil Rights Division, U.S. Dep’t of Justice, Statement of the Department of
Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities

-14-

Act and Olmstead v. L.C (June 22, 2011), available at
http://www.ada.gov/olmstead/q&a_olmstead.pdf.
The plaintiffs in California’s Coleman litigation, a class action of prisoners with serious mental
illness, have made the fullest version of this argument that I’ve been able to find. (In the end, the
District Court didn’t address the argument, ruling entirely on constitutional grounds.) Here’s
what the Coleman plaintiffs’ brief said:
The Americans with Disabilities Act (ADA) requires treatment in the most integrated
setting appropriate to a disabled individual’s needs and does not permit segregation
imposed due to an individual’s disability. See 42 U.S.C. § 12132 (“[N]o qualified
individual with a disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a
public entity, or be subjected to discrimination by any such entity.”); 42 U.S.C.
§ 12101(a)(2) (“historically, society has tended to isolate and segregate individuals with
disabilities, and, despite some improvements, such forms of discrimination against
individuals with disabilities continue to be a serious and pervasive social problem”); 42
U.S.C. § 12101(a)(5) (“individuals with disabilities continually encounter various forms
of discrimination, including … segregation, and relegation to lesser services, programs,
activities, [etc.]”); 28 C.F.R. § 35.130(d) (“A public entity shall administer services,
programs, and activities in the most integrated setting appropriate to the needs of
qualified individuals with disabilities.”); Olmstead v. L.C. ex rel Zimring, 527 U.S. 581,
597 (1999) (“Unjustified isolation … is properly regarded as discrimination based on
disability.”); cf. Biselli v. Cty. of Ventura, Case No. CV 09-08694 CAS (Ex), 2012 U.S.
Dist. LEXIS 79326, at *44-45 (C.D. Cal. June 4, 2012) (finding that placement in ASUs
based on conduct specifically linked to mental illness, without input from mental health
staff, may constitute violation of the ADA).
Notice of Motion & Motion for Enforcement of Court Orders & Affirmative Relief Re: Improper
Housing & Treatment of Seriously Mentally Ill Prisoners in Segregation (Document
4580), Coleman v. Brown, 2:90-cv-00520-LKK-JFM (E.D. Cal. May 6, 2013), available at
http://www.clearinghouse.net/chDocs/public/PC-CA-0002-0066.pdf, and in Appendix.
And again in their post-trial brief:
“By warehousing class members in segregation units because appropriate beds and timely
transfers cannot be provided, Defendants’ system fails to make the reasonable
accommodations necessary for mentally ill prisoners to be housed and treated in the most
integrated setting appropriate to their individual needs. In addition to violating the Eighth
Amendment, these practices constitute illegal disability discrimination. See 42 U.S.C.
§§ 12101(a)(2), (a)(5), 12132; 28 C.F.R. §§ 35.104, 35.130(b)(7), (d), 35.152(b)(2); see
also Olmstead v. L.C. ex rel Zimring, 527 U.S. 581, 597 (1999) (“Unjustified isolation
…is properly regarded as discrimination based on disability.”).
Plaintiffs’ Post-Trial Brief Regarding Enforcement of Court Orders and Affirmative Relief
Regarding Improper Housing and Treatment of Seriously Mentally Ill Prisoners I Segregation

-15-

(Document 4985), Coleman v. Brown, 2:90-cv-00520-LKK-DAD (E.D. Cal. filed Jan. 21, 2014),
available at http://www.clearinghouse.net/chDocs/public/PC-CA-0002-0065.pdf, and in
Appendix. 8
If the integration mandate does apply, it should be relatively easy to demonstrate that solitary
confinement not “appropriate to the needs” of prisoners with disabilities.
Defense 1: Fundamental alteration/undue financial and administrative burden. 28 C.F.R.
§ 35.130(b)(7); 28 C.F.R. § 35.150(a)(3)
If the theory of liability is failure to make reasonable modifications to various policies, practices,
or procedures, 28 C.F.R. § 35.130(b)(7), or a failure to provide ready program accessibility, 28
C.F.R. § 35.150(a)(3), the prison could mount a defense that the requested modification would
“fundamentally alter” the policy, practice, or procedure. The programmatic access regulation
also offers an “undue financial and administrative burdens” defense. Just as “reasonable
modification” is the analog/equivalent of Title I’s “reasonable accommodation” requirement,
“fundamental[] alter[ation]” and “undue . . . burden” are the analogs/equivalents of Title I’s
“undue hardship.”
Above, I listed some potential failures to make reasonable modifications. For each, prisons could
make an argument that the requested reasonable modification would effectuate a “fundamental
alteration” in the relevant program. The regulation dealing with program accessibility, 28 C.F.R.
§ 35.150(a)(3), specifies that:
• “[A] public entity has the burden of proving that compliance with §35.150(a) of this part
would result in such alteration or burdens”
• “The decision that compliance would result in such alteration or burdens must be made
by the head of a public entity or his or her designee after considering all resources
available for use in the funding and operation of the service, program, or activity, and
must be accompanied by a written statement of the reasons for reaching that conclusion.”
• “If an action would result in such an alteration or such burdens, a public entity shall take
any other action that would not result in such an alteration or such burdens but would
nevertheless ensure that individuals with disabilities receive the benefits or services
provided by the public entity.”
Presumably the omission of this kind of language in the “reasonable modification” provision is
because the word “reasonable” alone indicates some similar kinds of substantive (though not
procedural) considerations.

8

The Coleman plaintiffs phrased this same conclusion in the language of “least restrictive environment” in their
proposed order, at the end of this brief: “By failing to timely transfer class members to appropriate non-segregated
settings and subjecting them to harsh custodial measures such as blanket strip searches and mental health treatment
in cages, Defendants have failed to make the reasonable accommodations necessary to avoid disability
discrimination and to ensure that prisoners with a mental disability are housed and treated in the least restrictive
placement appropriate to their needs. See 28 C.F.R. §§ 35.104 (defining disability to include any “emotional or
mental illness”), 35.130(b)(7),(d), 35.152(b)(2).

-16-

Defense 2: Legitimate safety requirements and direct threat. 28 C.F.R. § 35.130(h); 28
C.F.R. § 35.139.
Against all of the asserted claims, prisons could defend by arguing that the prisoners housed in
solitary confinement pose a “direct threat” to others. Similarly, the prison could argue that their
decisions impose “legitimate safety requirements” for the safe operation of their services,
programs, or activities, including classification, housing, and mental health services.
The “direct threat” defense had its origin in School Board of Nassau County v. Arline, 480 U.S.
273, 278-88 (1987), in which the Supreme Court held (without a statutory or regulatory textual
hook) that a direct threat under Section 504 requires a showing of a “significant risk to the health
or safety of others that cannot be eliminated or reduced to an acceptable level by the public
entity’s modification of its policies, practices, or procedures.” This requirement was then
codified for ADA Titles I (42 U.S.C. § 12113(b)) and III (42 U.S.C. § 12182(b)(3))), and
incorporated into the Title II regulations (35 C.F.R. § 35.139).
The “legitimate safety requirement” language is new in the 2010 regulation; the 1991 Title II
regulation did not include similar language. But the language was in the 1991 Title III regulation,
see 56 Fed. Reg. 35,544 & 35,564 (July 26, 1991), and the Department of Justice’s 1993 ADA
Title II Technical Assistance Manual at II–3.5200 included the same language now included in
the regulation, making clear the Department’s view that public entities also have the right to
impose legitimate safety requirements necessary for the safe operation of services, programs, or
activities. The addition of the “legitimate safety” language in the 2010 Title II regulation was
intended, the Department explained when it issued that regulation, to “incorporat[e] this
longstanding position relating to imposition of legitimate safety requirements” and “[t]o ensure
consistency between the title II and title III regulations.” 28 C.F.R. pt. 35, App. A (2010),
available at http://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations.htm.
The burden on public entities in denying an individual with a disability the opportunity to
participate in and benefit from services, programs, and activities on the basis of direct threat is
considered a “heavy burden,” and the same would presumably be true of legitimate safety
criteria. See, e.g., Lockett v. Catalina Channel Express, Inc., 496 F.3d 1061, 1066 (9th Cir.
2007); Doe v. Deer Mt. Day Camp, Inc., 682 F. Supp. 2d 324, 347 (S.D.N.Y. 2010); Celano v.
Marriott Int’l, Inc., No. C 05-4004 PJH, 2008 WL 239306, at *16 (N.D. Cal. Jan. 28, 2008). But
of course, courts are very deferential to prison officials’ claims of danger.
The argument will then be whether the prison has “ensure[d] that its safety requirements are
based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals
with disabilities,” 28 C.F.R. § 35.130(h), and whether the claim of direct threat is appropriately
based on “individualized assessment, based on reasonable judgment that relies on current
medical knowledge or on the best available objective evidence, to ascertain: the nature, duration,
and severity of the risk; the probability that the potential injury will actually occur; and whether
reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or
services will mitigate the risk” 28 C.F.R. § 35.139(b).
As the U.S. Department of Justice summarized all this in a brief filed in 2013:

-17-

To summarize the legal standards the United States believes are applicable, the
segregation of prisoners with serious mental illness in solitary confinement may, under
certain circumstances, violate both the ADA and the Eighth Amendment. In regards to
the ADA, prisoners with disabilities cannot be automatically placed in restrictive housing
for mere convenience. Title II requires prison officials, when considering housing
determinations, to make individualized assessments of prisoners with serious mental
illness or intellectual disabilities, and their conduct, relying on current medical or best
available objective evidence, to assess: (1) the nature, duration, and severity of the risk;
(2) the probability that the potential injury will actually occur; and (3) whether reasonable
modifications of policies, practices, or procedures will mitigate or eliminate the risk. 56
Fed. Reg. 35,701 (1991); 75 Fed. Reg. 56,180 (2010); Sch. Bd. of Nassau Cnty. v. Arline,
480 U.S. 273, 278-88 (1987). Applying the Arline factors, the individualized assessment
should, at a minimum, include a determination of whether the individual with a disability
continues to pose a risk, whether any risk is eliminated after mental health treatment, and
whether the segregation is medically indicated.
Response of the United States of America to Defendants’ Motion in Limine No.4: To Exclude
the Statement of Interest (Document 4919), Coleman v. Brown, 2:90-cv-00520-LKK-DAD (Nov.
12, 2013), available at http://www.clearinghouse.net/chDocs/public/PC-CA-0002-0041.pdf (and
Appendix).
Defense 3: Placement in solitary is “necessary to provide qualified individuals with
disabilities with aids, benefits, or services that are as effective as those provided to others.”
28 C.F.R. § 35.130(b)(iv).
Defendants might defend on the grounds that placement of prisoners with disabilities in solitary
confinement or high-security mental health housing or the like is needed in order to provide
adequate services to those prisoners, and therefore authorized by 28 C.F.R. § 35.130(b)(iv). But,
as the Department of Justice argued in its Cresson findings letter, if that were the case, one
would expect mental health professionals to play the lead role in making the assignment, and that
the conditions of confinement would be set up to be as therapeutic as possible. In the absence of
that kind of evidence, this defense is simply implausible. See Investigation of the State
Correctional Institution at Cresson and Notice of Expanded Investigation, supra, at 11-12.
Theory 4: If prisoners are housed solitary confinement (perhaps to avoid a fundamental
alteration in prison programs, or because of a concern about safety/direct threat), they
cannot on the basis of disability be denied the equal—and equally effective—opportunity to
participate in/benefit from services. 28 C.F.R. § 35.130(b)(i)-(iii).
Accepting for sake of argument that solitary confinement or high security mental health housing
is a lawful option, prisoners housed there are still entitled not to be denied access to various
services/benefits/programs available to prisoners in that kind of housing on the basis of their
disability. For example, suppose some prisoners in solitary confinement are allowed access to a
step down program, or to certain property, privileges or whatever, if they avoid disciplinary
offenses. Then the argument would be that prisoners with disabilities should, likewise, have

-18-

access to such programs/privileges. Making this argument brings up, again, all the same issues
addressed under Theory 1, about what “on the basis of” (or “because of”) means. If, for example,
a prisoner’s disability makes her incapable of complying with some given rule for 6 months
straight, and that non-compliance leads to the denial of visiting privileges, the argument would
be that the denial is “on the basis of disability.”
For the reasons already developed in depth, the most promising way to think about all this seems
to me reasonable modification. This is how it was framed, in detail, in the two cases in Colorado
already cited, Anderson and Sardakowski (see Appendix for briefs) (the passage is too long to
quote, but well worth reading). But in part of the Cresson findings letter already mentioned, the
Department of Justice framed this complaint using a theory of “equally effective . . . opportunity
to participate.” That letter says: “For those prisoners with serious mental illness or intellectual
disabilities who cannot be integrated into the general population, the Facility still has an
obligation to provide the prisoners with the opportunity to participate in and benefit from mental
health services and activities, and other services, programs, and activities to which prisoners
without disabilities have access. See 28 C.F.R. § 35.130(b).” See Investigation of the State
Correctional Institution at Cresson and Notice of Expanded Investigation, supra, at 37.
IV.

Strategic considerations

Apart from the legal issue of whether an ADA claim should succeed in the abstract is the
question whether its assertion is strategically wise. The answer is, obviously, highly contextdependent. But just to list a few considerations:
The advantages of an ADA theory include:
• Equality is a powerful frame and can get at deprivations that are milder than those
reachable by an Eighth Amendment deliberate indifference theory.
• The individuation of reasonable modification, direct threat, legitimate safety concern may
all be very helpful in a system that deals in wholesale kind of way with prisoners with
varying needs.
• There’s an argument with some (textual and caselaw) support that the Prison Litigation
Reform Act attorneys’ fee cap doesn’t apply to ADA or Rehab Act claims. 9
Disadvantages may include:
• Under the Eighth Amendment, the focus stays solidly on the toxicity of solitary
confinement and how damaging it is to people with disabilities. The ADA may direct
attention more to what got the prisoners into solitary, and that may be less favorable
ground.
9

See Armstrong v. Davis, 318 F.3d 965, 973-74 (9th Cir. 2003) (fees in suits enforcing the Americans with
Disabilities Act and the Rehabilitation Act are not limited by the PLRA because these statutes have fee provisions
separate from § 1988); Henderson v. Thomas, 2013 WL 5493197, *9 (M.D.Ala., Sept. 30, 2013) (same); Beckford v.
Irvin, 60 F.Supp.2d 85 (W.D.N.Y. 1999) (same). See also Edwin G. v. Washington, 2001 WL 196760 (C.D.Ill., Jan.
26, 2001) (holding that fees sought as sanctions were not subject to PLRA); Davis v. Rouse, Civil Action No. 1:08cv-03106, 2012 WL 3059569, at *3 (D. Md. July 25, 2012) (same); Scott v. Clarke, No. 3:12-CV-00036, 2014 WL
1463755, at *4 (W.D. Va. Apr. 15, 2014) (same).

-19-

•

There is a DOJ administrative process under the Rehab Act. Under it, a prisoner alleging
“disability on the basis of handicap” can go to the Department of Justice and complain.
28 C.F.R. § 39.170. (I haven’t spent much time looking at it, but this process seems to be
geared towards employment complaints, rather than Title II matters.) The DOJ takes
these complaints as informative, rather than investigating almost any of them. Several
courts have nonetheless held that the PLRA’s exhaustion requirement compels resort to
this procedure, in addition to state prison grievance procedures. That seems wrong (and
the cases are all or nearly all pro se, so it hasn’t been briefed much), but it’s a potential
pitfall that needs to be considered and managed.
Requiring use of DOJ process:
o Trevino v. Woodbury County Jail, No. C14-4051-MWB, 2015 WL 300267 (report
and recommendation) (N.D. Iowa Jan. 22, 2015), adopted without objection, 2015
WL 2254931, *6 note 5, aff’d on other grounds, --- Fed. Appx. ---, 2015 WL
7729545
o William G. v. Pataki, No. 03 Civ. 8331(RCC), 2005 WL 1949509, at *5
(S.D.N.Y. Aug. 12, 2005)
o Brown v. Cantrell, No. 11-cv-00200-PAB-MEH, 2012 WL 4050300, at *3 (D.
Colo. Sept. 14, 2012)
o Haley v. Haynes, No. 2:10-cv-00122, 2012 WL 112946, at *1 (S.D. Ga. Jan. 12,
2012)
o Zoukis v. Wilson, No. 1:14-cv-104- LMB-IDD, 2015 WL 4064682 (E.D. Va. July
2, 2015)
o Cardenas-Uriarte v. USA, No. 14-cv-00747-JPG-PMF, 2015 WL 5161316 (S.D.
Ill. September 01, 2015)
o Burgess v. Garvin, No. 01-cv-10994-GEL, 2003 WL 21983006, at *3 (S.D.N.Y.
Aug. 19, 2003), on reconsideration, 2004 WL 527053 (S.D.N.Y. March 16, 2004)
o William G. v. Pataki, No. 03-cv-8331-RCC, 2005 WL 1949509, at *5-6
(S.D.N.Y. Aug. 12, 2005)
o Scott v. Goord, No. 01-cv- 0847-LTS-AJP, 2004 WL 2403853, at *7 (S.D.N.Y.
Oct. 27, 2004)
o Rosario v. N.Y. State Dept. of Correctional Services, No. 03-cv-0 859-CLB, 2003
WL 22429271, at *3 (S.D.N.Y. Sept. 24, 2003), vacated and remanded, 400 F.3d
108 (2d Cir. 2005) (per curiam).
Declining to require use of DOJ process:
o O’Guinn v. Lovelock Correctional Center, 502 F.3d 1056, 1062-64 (9th Cir.
2007)
o Veloz v. New York, 339 F.Supp.2d 505, 517–18 (S.D.N.Y. 2004), aff’d, 178
Fed.Appx. 39 (2d Cir. Apr. 24, 2006)
o Degrafinreid v. Ricks, No. 03-cv-6645-RWS, 2004 WL 2793168, at *14 n.10
(S.D.N.Y. Dec. 6, 2004)
o Singleton v. Perilli, No. 03-cv-0227-DC, 2004 WL 74238, at *4 (S.D.N.Y. Jan.
16, 2004) (dictum)

-20-

-21-

APPENDIX: CITED BRIEFS AND OTHER DOCUMENTS
Anderson v. State of Colorado, No. 10-cv-01005-WYD-KMT (D. Colo.)
Plaintiff’s Response to Motion for Summary Judgment (July 21, 2011), available at
http://www.clearinghouse.net/chDocs/public/PC-CO-0017-0006.pdf.
Plaintiff’s Trial Brief (Apr. 23, 2012), available at
http://www.clearinghouse.net/chDocs/public/PC-CO-0017-0007.pdf.
Armstrong v. Brown, 4:94-cv-02307 (N.D. Cal.)
Order Granting Motion for Further Enforcement, 2015 WL 496799 (Feb. 3, 2015), available at
http://www.clearinghouse.net/chDocs/public/PC-CA-0001-0040.pdf.
Biselli v. County of Ventura, 09-cv-08694 CAS (Ex) (C.D. Cal.)
[Opinion,] 2012 U.S. Dist. LEXIS 79326, at *44-45 (June 4, 2012).
Coleman v. Brown, 2:90-cv-00520-LKK-JFM (E.D. Cal.)
Notice of Motion & Motion for Enforcement of Court Orders & Affirmative Relief Re: Improper
Housing & Treatment of Seriously Mentally Ill Prisoners in Segregation (Doc. 4580) (May 6,
2013), available at http://www.clearinghouse.net/chDocs/public/PC-CA-0002-0066.pdf.
Response of the United States of America to Defendants’ Motion in Limine No.4: To Exclude
the Statement of Interest (Doc. 4919) (Nov. 12, 2013), available at
http://www.clearinghouse.net/chDocs/public/PC-CA-0002-0041.pdf.
Plaintiffs’ Post-Trial Brief Regarding Enforcement of Court Orders and Affirmative Relief
Regarding Improper Housing and Treatment of Seriously Mentally Ill Prisoners in
Segregation (Doc. 4985) (Jan. 21, 2014), available at
http://www.clearinghouse.net/chDocs/public/PC-CA-0002-0065.pdf.
Cresson (Penn.):
Civil Rights Division, U.S. Dep’t of Justice, Investigation of the State Correctional Institution at
Cresson [Penn.] and Notice of Expanded Investigation (May 31, 2013), available at
http://www.justice.gov/sites/default/files/crt/legacy/2013/06/03/cresson_findings_5-3113.pdf
Miller v. Smith, 6:98-cv-109-JEG (S.D. Ga.)
United States’ Memorandum of Law as Amicus Curiae on Issues under the Americans with
Disabilities Act and Rehabilitation Act that are Likely to Arise on Summary Judgment or at
Trial, Miller v. Smith, 6:98-cv-109-JEG (June 21, 2010), available at
http://www.ada.gov/briefs/miller_amicus.pdf.
Sardakowski v. Clements, 12-cv-01326-RBJ-KLM (D. Colo.)
Plaintiff’s Response to Defendants’ Motion for Summary Judgment (Dec. 26, 2013), available at
http://www.clearinghouse.net/chDocs/public/PC-CO-0024-0001.pdf.

-22-

Reporter’s Transcript: Hearing on Motion for Summary Judgment and Final Trial Preparation
Conference, p. 41 (Feb. 25, 2014), available at
http://www.clearinghouse.net/chDocs/public/PC-CO-0024-0002.pdf (and in Appendix)
(rejecting defendants’ motion for summary judgment on the same claim).

-23-