Constitutional Litigation
October 9, 2008
ADA, Rehabilitation Act and Section 1983
Americans with
Disabilities Act
(42 U.S.C. § 12131)
Entity is liable

Rehabilitation Act
(29 U.S.C. § 794)

Section 1983
(42 U.S.C. § 1983)

Entity is liable

Individuals are liable

Standard

“reasonable
accommodation”

“reasonable
accommodation”

“deliberate indifference”

Sovereign
immunity

no immunity when
constitutional right is
implicated (United
States v. Georgia,
546 U.S. 151, 155
(2006))
No immunity

no immunity when
entity accepts
federal funds

State is immune from suits
for damages

no immunity when
entity accepts
federal funds

Exists unless plaintiff can
prove “custom, policy or
practice” violated civil
rights (Monell v.
Department of Social Servs
of City of New York, 436
U.S. 658, 690-91 (1978))
Exists unless plaintiff can
prove 1) constitutional right
was clearly established at
time of violation, 2)
defendant’s action was
objectively unreasonable
(See, e.g., Harlow v.
Fitzgerald, 457 U.S. 800
(1982)

Who is liable?

Municipal
immunity

Qualified
immunity

No immunity

No immunity

Other

Have to prove
plaintiff is disabled.
Requires showing
“major life activity”
is substantially
impaired by physical
or mental condition.

Have to prove
plaintiff is disabled
(same test as ADA)
and entity accepts
federal funding.