Key point 8-14.2. The federal Americans with Disabilities Act prohibits discrimination against disabled persons by privately-owned places of public accommodation. The Act exempts religious organizations from this provision. Some states and cities have enacted laws prohibiting discrimination against disabled persons in some places of public accommodation, and these laws may apply to religious organizations.
A federal court in Mississippi ruled that a church did not violate the Americans with Disabilities Act by failing to accommodate an autistic child in its preschool program, but may have violated the federal Rehabilitation Act. From the time he was fifteen months old until age four, a child was enrolled in a church preschool. When he was three years old, the child was diagnosed as developmentally delayed, and shortly before he turned four he was diagnosed as autistic. At some point following the autism diagnosis the church informed the boy’s mother (the “plaintiff”) that the school and its teachers were not qualified, trained or equipped to educate the child and that he therefore would not be allowed to re-enroll for the following school year. The plaintiff withdrew her son from the preschool and enrolled him in a preschool program at a public elementary school. The plaintiff sued the church on several grounds, including:
- Disability discrimination in violation of the Americans with Disabilities Act.
- Violation of the federal Rehabilitation Act.
- Breach of contract based on the church’s failure to honor its assurances and promises that it, and its instructors, were equipped, trained and qualified to educate an autistic child.
The church asked the court to dismiss all of the plaintiff’s claims.
American with Disabilities Act (ADA)
Title III of the ADA prohibits discrimination “on the basis of disability in the full and equal enjoyment of the … accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Places of public accommodation under the ADA include schools and preschools. However, the ADA exempts “religious organizations or entities controlled by religious organizations, including places of worship,” from the ADA’s public accommodation protections.
The plaintiff conceded that the church was a religious organization, but insisted that the exemption did not apply to it because it failed to plead the exemption as an “affirmative defense” in its answer to the plaintiff’s lawsuit. Generally, affirmative defenses are waived if not asserted in an answer to a lawsuit. The court acknowledged that “the courts have consistently held that statutory exemptions, particularly from remedial statutes, must be pled as affirmative defenses.” However, it added that a failure to plead an affirmative defense in answering a lawsuit will not always lead to a wavier of the defense. It quoted from a federal appeals court ruling:
While it is true that failure to [plead an affirmative defense] leads to waiver, there is some play in the joints. A defendant must plead an affirmative defense with enough specificity or factual particularity to give the plaintiff fair notice of the defense that is being advanced. The concern is that a defendant should not be permitted to lie behind a log and ambush a plaintiff with an unexpected defense. Where the [affirmative defense] is raised in the trial court in a manner that does not result in unfair surprise, however, technical failure to [plead an affirmative defense] is not fatal. More specifically, a defendant does not waive an affirmative defense if it is raised at a pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond. Passa v. City of Columbus, 2007 WL 3125130, 5 (S.D. Ohio 2007).
The court, in dismissing the ADA claim, ruled that there was no unfair surprise or prejudice to the plaintiff, since she was well aware that she was suing a church, and that churches are clearly exempted from the public accommodations provisions of the ADA.
The Rehabilitation Act
Plaintiff also sued the church under Section 504 of the Rehabilitation Act based on its refusal to re-enroll her son for the succeeding school year once it learned that he had been diagnosed with autism. She contends the refusal to accommodate her son’s autism constituted discrimination in violation of the Rehabilitation Act.
Section 504 of the Rehabilitation Act states: “No otherwise qualified individual with a disability in the United States … 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.” “Program or activity” is defined to include the operations of a private organization “which is principally engaged in the business of providing education.”
The church asked the court to dismiss the Rehabilitation Act claim on the ground that it did not receive any federal financial assistance and therefore was not covered by the Act. The plaintiff claimed that the church was receiving federal funds by virtue of the fact that her son’s tuition was paid, in part, by a child care certificate issued pursuant to a federally-funded subsidy program. The church countered that the child care certificate program, though partially federally funded, was administered by the state for the benefit of low-income families, and that the recipient of federal funds was therefore the state, or ultimately, the family that received the assistance. But the church itself was not a direct recipient of federal financial assistance and therefore it was not subject to the Rehabilitation Act. The court disagreed:
There is no question but that [the church] did receive federal funds indirectly in the form of vouchers or certificates which paid a portion of [the plaintiff’s] tuition payments. An entity that does not receive federal financial assistance directly may nevertheless be covered by the Rehabilitation Act if it receives federal financial assistance indirectly …. However, that an entity merely indirectly “benefits” from federal aid, or is “inextricably intertwined” with the actual recipient, is not sufficient to support coverage of the Act ….
Here, the parties are at odds over whether the church was merely enjoying indirectly the benefits of federal assistance to plaintiff, in which case it did not receive federal financial assistance within the meaning of the Rehabilitation Act, or whether the church is itself an intended recipient of the subject federal funds, in which case it is a recipient of federal funds and therefore subject to the requirements of the Act.
The court concluded that the church as the child care provider “did not merely benefit economically from the financial assistance provided the families, but in the court’s opinion, was an intended recipient itself, particularly considering that a purpose of the [federal assistance] was to improve the quantity and quality of child care available to low income families.” As a result, the court rejected the church’s request to dismiss the plaintiff’s Rehabilitation Act claim.
Breach of Contract
The gist of plaintiff’s breach of contract claim was that the church, with full knowledge of her son’s disability, promised and assured her that it was equipped, trained and qualified to provide the educational services the child required, and promised to do all that was necessary to provide him with an appropriate education for his disability. She claimed that on the basis of the church’s promises and assurances, she made the decision to keep her son at the church’s preschool instead of accepting the free public education to which her son was entitled under federal law. But, she claimed, the church failed to live up to its promise to plaintiff and ultimately admitted that it was not capable of providing the educational services it promised to provide her son. Plaintiff claims that she and her son were entitled to be compensated for these breaches.
The court rejected the church’s request to dismiss the breach of contract claim. It concluded:
It appears the only promise or representation made to plaintiff was that the school would provide a teacher for her son who had experience working with children like him. In fact, the school did provide a teacher who had experience working with children like the plaintiff’s son. And according to plaintiff’s testimony, her son made great progress during the time she worked with him. In plaintiff’s words, this teacher, Ms. Watkins, was “like a miracle.” The problem arose, evidently, when Ms. Watkins left the school …. Accepting as true plaintiff’s testimony that defendant promised it would hire/ provide a teacher for her son so that he could remain enrolled at the preschool, then arguably, it was in breach of such alleged agreement for that limited period of time following Ms. Watkins’s departure when the church failed to provide an experienced teacher. Accordingly, the court will deny the church’s [motion to dismiss this claim].
Application. This case is significant for several reasons, including the following:
First, the case illustrates that the ADA’s prohibition of disability discrimination by places of public accommodation does not apply to religious organizations. Note that the ADA also prohibits discrimination by covered employers against certain disabled persons. Religious organizations are not automatically exempt from this prohibition, though they are permitted in some cases to prefer members of their own faith in making employment decisions.
Second, this case demonstrates the importance of pleading “affirmative defenses” in answers to lawsuits. Failure to do so may lead to a waiver of otherwise viable defenses.
Third, the court adopted a broad definition of “federal financial assistance” making it more likely that the church violated the federal Rehabilitation Act by failing to adequately accommodate the child’s autism. The court concluded that the Act applies to indirect as well as direct recipients of federal financial aid.
Fourth, the court’s ruling underscores the importance of verbal representations made by church schools regarding the services they provide. A failure to comply with any such representations may lead to liability based on breach of contract.
Given these complexities, churches that operate a school or preschool should obtain legal counsel before reaching a decision to exclude a child based on a disability. Spann ex rel. Hopkins v. Word of Faith Christian Center Church, 589 F.Supp.2d 759 (S.D. Miss. 2008).
This Recent Development first appeared in Church Law & Tax Report, November/December 2009.