Student can't pursue damages for ADA retaliation.


Byline: Pat Murphy

A student who alleged the private school he attended failed to accommodate his electromagnetic hypersensitivity could not pursue a retaliation claim for damages under the Americans with Disabilities Act, the 1st U.S. Circuit Court of Appeals has ruled.

The plaintiff identified in the lawsuit as "G." to protect his privacy with his parents brought ADA public accommodation and retaliation claims against The Fay School in Southborough, Massachusetts.

After several years of negotiations with school officials and litigation, all of the plaintiff's disability discrimination claims were either dismissed or mooted by his transfer to another school.

The plaintiff argued on appeal that, even though he could no longer pursue injunctive relief for retaliation, his retaliation claim for compensatory and nominal damages should have been allowed to proceed.

But the 1st Circuit panel, addressing an issue of first impression, concluded that damages are not an available remedy for a Title V retaliation claim based on an exercise of rights under Title III of the ADA.

"Because here the underlying practice that was opposed is disability discrimination in a place of public accommodation, which is prohibited by Title III, we look to Title III's enforcement provision, [42 U.S.C.] 12188, to determine which remedies are available for the family's retaliation claim," Judge Kermit V. Lipez wrote for the panel. "[T]hose remedies are '[t]he remedies and procedures set forth in section 2000a-3(a),' the remedies provision of Title II of the Civil Rights Act, which does not provide for compensatory damages."

The court also affirmed a summary judgment in favor of the school on the plaintiff's claims for breach of contract and misrepresentation premised on language in the school's student handbook.

"In short, the family fails to identify terms in the handbook that are sufficiently definite and certain to form a binding contract," Lipez wrote. "This understanding is reinforced by the enrollment contract that G's parents signed, which specifically states that the handbook 'set forth general expectations regarding the Students' enrollment at the School,' but 'does not constitute a contract between [them] and the School.'"

The 31-page decision is G., et al. v. The Fay School, et al., Lawyers Weekly No. 01-168-19. The full text of the ruling can be found here.

Cutting-edge case

Counsel for the school, Sara Goldsmith Schwartz of Andover, Massachusetts, said education attorneys from across the...

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