Dis-Qualified Immunity for Discrimination Against the Disabled
Gary S. Gildin   |   1999 U. Ill. L. Rev.

In his article Professor Gildin challenges the applicability of the qualified immunity defense in actions brought under the federal disability statutes. Specifically, he contends that the qualified immunity defense should not be available in actions for damages brought under the Rehabilitation Act, the Americans with Disabilities Act, and the Individuals with Disabilities Education Act. Although these acts are very powerful tools to protect the rights of disabled individuals, lower courts have slowly eviscerated a key enforcement mechanism--the remedy of money damages--by transferring the qualified immunity defense permitted in § 1983 actions to actions brought under these acts. In support of his thesis, Professor Gildin analyzes the text and legislative histories of these acts and argues that neither of these supports the existence of the qualified immunity defense. He also finds that there is no historical linkage between § 1983 and the disability statutes that justifies borrowing qualified immunity from § 1983. Finally Professor Gildin argues that judges should not legislate this defense as Congress at the time it enacted the disability statutes did not intend for this defense to be available.
* Professor of Law, The Dickinson School of Law of the Pennsylvania State University. B.A. 1973, University of Wisconsin; J.D. 1976, Stanford Law School. The author expresses his gratitude to Megan Farrell Lawless, Hannah Greenwald, and Shawn E. Smith for their invaluable research assistance.