White v. Hesse: Challenging an Oklahoma County's Bail Practices Under the Americans with Disabilities Act and the Rehabilitation Act

26 Tex. J. on Civ. Liberties & Civ. Rts. 229 (2021).

28 Pages Posted: 8 Apr 2022

See all articles by Andrew Hamm

Andrew Hamm

American University - American University Washington College of Law, Students

Date Written: March 2, 2021


On December 10, 2019, two plaintiffs with disabilities sued the Canadian County District Court, 26th Judicial District, alleging that the Oklahoma court system's bail practices violated the Americans with Disabilities Act (ADA)and the Rehabilitation Act. Among other claims, the plaintiffs allege that the district is “violating Title II of the ADA by administering a bail policy that does not take into consideration an individual's disability [and] does not provide the modifications or effective communication services that the person may need to participate equally in the initial appearance or arraignment proceedings.” The 26th Judicial District filed a Motion to Dismiss, arguing that the district was not an entity that could be sued and that the plaintiffs had failed to state a claim because they do not allege that they ever requested modifications. The Motion to Dismiss is pending before Judge Jodi Dishman of the United States District Court for the Western District of Oklahoma.

This note will seek to assess and build on the claims alleged in White v. Hesse. First, the note will consider the arguments raised so far in the briefing concluding that the plaintiffs have sufficiently alleged a claim to defeat the Motion to Dismiss. In doing so, the note will highlight arguments that litigants could raise to challenge bail practices in other jurisdictions. The note will also outline the arguments the plaintiffs could raise on the merits, limited by the available facts at this early stage in the briefing. As much as possible, the note will hope to frame these arguments around a social model of disability.

Part II of this note will provide background by reviewing the facts and procedural history in White and by placing those facts in a broader context framed by the social model of disability. This part will highlight aspects of the Complaint that reveal White's and Musgrave's lived experiences as persons with disabilities and their sense of what would have helped them in the bail proceedings. This attempt at disability legal studies recognizes that, while in-person interviews may not be necessary, legal arguments about persons with disabilities should not be made without their meaningful participation.

Part III will analyze and reject the 26th Judicial District's defenses raised in its Motion to Dismiss. First, regardless of Oklahoma law, the ADA itself provides the legal basis for suing the district because the district is a public entity under Title II. Though the plaintiffs in White allocate only one sentence to Jaegly v. Lucas County Board of Commissioners, the case offers an argument that is replicable in other jurisdictions. Second, the district had a duty to recognize and make accommodations for the plaintiffs because of the elevated likelihood that individuals with disabilities would come before bail proceedings. McCadden by McCadden v. City of Flint, which the plaintiffs relegate to a citation, offers better support than Pierce v. District of Columbia because it does not turn on obvious disabilities.

Part IV will assess the plausibility of plaintiffs' discrimination claims, taking the factual allegations as true. First, White and Musgrave have alleged that they are individuals with disabilities because interstitial cystitis, anxiety, depression, bipolar disorder, and post-traumatic stress disorder are physical and mental impairments that substantially limit major life activities, including concentrating, thinking, communicating, interacting with others, and the major bodily functions of the bladder. Second, White and Musgrave have alleged that they are qualified individuals with a disability because the bail proceedings are a service, program, or activity for which White and Musgrave meet the essential eligibility requirements as arrested members of the public. Third, the 26th Judicial District did not ensure effective communication with White and Musgrave because the district did not furnish appropriate auxiliary aids or services to allow White and Musgrave to understand their initial appearance or arraignments. In doing so, the district discriminated by denying White and Musgrave the opportunity to participate in or benefit from these proceedings. The district's failure to make reasonable modifications in its procedures further amounted to discrimination. The district likely cannot make out a defense that a modification to its bail proceedings would be a fundamental alteration. Finally, because White and Musgrave should succeed on their claims, a permanent injunction requiring the adoption of modified procedures is an appropriate remedy under Title II.

Part V will conclude by encouraging other litigants to bring cases similar to White.

Keywords: Americans with Disabilities Act, bail

Suggested Citation

Hamm, Andrew, White v. Hesse: Challenging an Oklahoma County's Bail Practices Under the Americans with Disabilities Act and the Rehabilitation Act (March 2, 2021). 26 Tex. J. on Civ. Liberties & Civ. Rts. 229 (2021)., Available at SSRN: https://ssrn.com/abstract=4048024

Andrew Hamm (Contact Author)

American University - American University Washington College of Law, Students ( email )

4300 Nebraska Ave NW
Washington, DC, DC 20016
United States

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