United States District Court, D. New Mexico
MEMORANDUM OPINION AND ON DISCOVERY DISPUTE ON RULE
KAREN B. MOLZEN UNITED STATES MAGISTRATE JUDGE
1990, the Honorable James A. Parker expressly found that
"Defendants' failure to accommodate the severely
handicapped in existing community programs while serving less
severely handicapped peers is unreasonable and
discriminatory." Jackson by Jackson v. Fort
Stanton Hosp. & Training Sch., 757 F.Supp. 1243,
1299 (D.N.M. 1990), rev'd in part, 964 F.2d 980 (10th
Cir. 1992). This finding came in his conclusions of law
section regarding statutory discrimination claims brought
pursuant to Section 504 of the Rehabilitation Act.
Id. at 296-99. Judge Parker further found that
"where reasonable accommodations in community programs
can be made, defendants' failure to integrate severely
handicapped residents into community programs which presently
serve less severely handicapped residents violates §
504." Id. at 1299. He additionally concluded
that Defendants were violating class members' substantive
due process rights. Id. at 1306-07, 1312.
direction, the parties worked in good faith and finally
agreed to the entry of a consent decree to correct the
deficiencies he had identified. That decree, with numerous
additions and modifications to it, has been in existence for
almost three decades with continuing oversight by the federal
2016, Judge Parker rejected Defendants' contention that
changed circumstances made continuing federal court
involvement inequitable such that all remedial orders should
be vacated and federal court oversight discontinued.
Jackson v. Los Lunas Ctr., 2016 WL 9777237 (D.N.M.
June 14, 2016). He disagreed with Defendants' assertion
that he had found no ongoing violations of federal law in his
206-page October 12, 2012 decision, Doc. 1930,
following a trial on Plaintiffs' Renewed Motion for
Further Remedial Relief to Remedy Noncompliance. Rather, he
stated that the court "is not in a position to assess,
and, therefore, cannot conclude that Defendants are no longer
violating constitutional or federal law." Jackson v.
Los Lunas Ctr. for Persons with Developmental Disabilities
("Jackson III"), 2012 WL 13076262, at *76
(D.N.M. Oct. 12, 2012). Instead, Judge Parker noted "so
many obligations" of the consent decrees were not yet
fulfilled and "conclude[d] that Defendants have not
demonstrated that a durable remedy is in place sufficient to
justify vacatur of all the Court's orders."
Id. at *18.
appeal of that decision denying Rule 60(b) relief, the Tenth
Circuit determined that
the district court's analysis on this point was too
narrow, focusing almost entirely on whether defendants had
fulfilled the numerous, detailed obligations provided in the
consent decrees. But because Defendants move on the ground
that continued enforcement of the consent decrees is no
longer equitable, the district court should have
"ascertained] whether ongoing enforcement of the
[decrees] was supported by an ongoing violation of federal
law," see Home, 557 U.S. at 454 - here, whether
Defendants are violating class members' rights under the
substantive due process component of the Fourteenth Amendment
and under the Rehabilitation Act.
Jackson v. Los Lunas Cmty. Program, 880 F.3d 1176,
1206 (10th Cir. 2018). The Tenth Circuit therefore remanded
the case back to Judge Parker with instructions that
"the court should consider the broader question of
whether the State is meeting the requirements of the
Fourteenth Amendment and the Rehabilitation Act by means
other than those stated in the consent decrees."
Id. at 1206. In doing so, the court is to "make
up-to-date findings" and if no violations of federal or
constitutional law are found, "assess the durability of
that compliance." Id. at 1207.
against the above backdrop that this Court now addresses the
discovery dispute at hand in preparation for the trial on the
remanded issues that Judge Parker will hold next Spring.
Specifically, Plaintiffs seek production of certain
information and data about non-Jackson class members
to which Defendants have objected.
contend that they require information about non-class members
to demonstrate a continuing violation of Section 504 under
the theory that the State's policies and practices
discriminate against the more severely disabled while
accommodating the needs of the less severely disabled. In
other words, they put forth a "disparate impact"
argument for relevance of the requested data. Defendants
counter that a showing of "disparate impact" is not
the applicable standard for a Section 504 claim; rather,
Defendants argue that "meaningful access" to
services forms the proper inquiry for such a claim by class
members. Thus, Defendants maintain, information regarding
services provided to non-class members is simply irrelevant.
posit that the "Supreme Court has specifically held that
disparate impact, by itself, does not state a prima facie
case under § 504." Walz Letter of July 20, 2018
(Attachment A) (citing Alexander v. Choate, 469 U.S.
287 (1985)). In his 2012 decision, Judge Parker acknowledged
that the Alexander case stood for the proposition
"that an otherwise qualified handicapped individual must
be provided with meaningful access to the benefit that the
grantee offers." Jackson III, 2012 WL 13076262,
at *76 (D.N.M. Oct. 12, 2012). He further recognized that
"the Rehabilitation Act and ADA do not guarantee
'equal results' for disabled individuals."
Id. (citing Cohort ex rel. Bass v. New Mexico
Dept. of Health, 646 F.3d 717, 729 (10* Cir. 2100).
Nevertheless, Judge Parker found that the Supreme Court's
decision in Olmstead v. L.C. ex rel. Zimring, 527
U.S. 581, 598 n.10 (1999), "provides a more than
adequate ground for concluding that Plaintiffs can sue under
the Rehabilitation Act and the ADA for discrimination claims
based on severely disabled persons being treated differently
than less severely disabled persons." Jackson
III, at *77.
Judge Parker indicated that "[u]nlawful differential
treatment claims can be brought under two legal theories:
disparate treatment or disparate impact" and that a
disparate impact claim "does not require proof of an
intent to discriminate, but, instead, mandates a showing that
a policy caused a disparate effect." Id.
Although Judge Parker went on to find that Plaintiffs failed
to demonstrate an intent to discriminate on Plaintiffs'
Section 503 disparate treatment claims, he did not
address any potential Section 503 disparate impact
claims, which do not implicate an intent to
discriminate. This Court notes that disparate impact
claims, usually seen in the context of employment
discrimination, require statistical analysis of accumulated
data and expert testimony as to the significance of the
all these observations, this Court finds that some of the
information requested by Plaintiffs as to non-class members
is intended to lead to admissible evidence showing that the
State's system currently violates Section 504 by
providing lesser disabled individual with more meaningful
access to services than those more severely disabled. But the
Court must question whether non-class member data can be
truly said to represent a group lesser disabled than the
Jackson class members. Such an inference seems
supportable because the Jackson class members were
institutionalized based upon the severity of their
developmental disabilities. Presumably, only a portion of the
non-class members would be at the same end of that spectrum
such that the non-class group on average could be
considered lesser disabled. Again, the Court questions how
the numerous variables will influence the data and the
validity of conclusions drawn, but that is the job of the
experts at trial - not the undersigned referred magistrate
each of the categories of information sought as to non-class
members, the Court will balance the relevance asserted by
Plaintiffs (as to alleged disparate impacts in the delivery
of services and/or the showing of a durable remedy after
court oversight is terminated) against the asserted burdens
of production cited by Defendants.
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