Mixed Signals: What Can We Expect From the Supreme Court in This Post-ADA Amendments Act Era?

Abstract

The ADA Amendments Act of 2008 was intended to breathe new life into the ADA after the courts, especially the Supreme Court, had drastically narrowed the ADA’s protected class. But since the ADA was amended in 2008, the Supreme Court has not decided any ADA cases. Thus, there are many ADA issues, especially in the employment context, that remain unresolved. This paper will attempt to determine whether we can expect a disability-friendly Supreme Court or whether the Court will once again narrowly construe individuals with disabilities’ rights under the ADA. In doing so, I have uncovered some mixed signals. On the one hand, the body of Tenth Circuit ADA cases decided by our newest jurist, Justice Gorsuch, suggests an anti-disability bent. On the other hand, one possible source of good news for individuals with disabilities are two recent IDEA Supreme Court cases decided in 2017: Fry v. Napoleon Community Schools and Endrew F. ex rel. Joseph F. v. Douglas County School Dist. RE-1. Both of these cases were very plaintiff-friendly and both were unanimous (the Fry case had a two-justice concurrence). But are these plaintiff-friendly cases signaling a disability-friendly Supreme Court? Or is the plaintiff-friendly outcome of these cases not because they involve individuals with disabilities but because they involve educating children? And if the latter is true, what can we expect from the Supreme Court if and when it decides the unresolved ADA employment issues? This paper will attempt to answer these questions.

Keywords: Disability, Reasonable Accommodation, ADA, Americans With Disabilities Act, ADAAA, Discrimination, Supreme Court, IDEA, Education