The ACA’s Nondiscrimination Rule: A Right In Search of a Remedy

By Elizabeth Sepper

Every law student learns the ancient adage that there is no right without a remedy. Section 1557 makes clear that individuals have rights against discrimination in healthcare and a private right of action to enforce them. But it’s less clear as to when and how they have remedies.

Section 1557 provides individuals protection against discrimination on “the ground prohibited under” four preexisting civil rights statutes–Title VI of the Civil Rights Act, Title IX of the Education Amendments, the Age Discrimination Act, and Section 504 of the Rehabilitation Act. The statute also makes available “the enforcement mechanisms provided for and available under” these four civil rights statutes. This language makes two things clear. First, Section 1557 prohibits discrimination on grounds of race, color, or national origin (Title VI); sex (Title IX); age (Age Discrimination Act); and disability (Rehab Act). Second, as district courts have agreed, the statute authorizes both private rights of action and agency enforcement as “enforcement mechanisms.”

So far, so good. But each statute has its own specific legal standards, and remedies. For example, a plaintiff alleging age discrimination under the Age Discrimination Act must first exhaust administrative remedies. By contrast, a plaintiff can file a private suit directly when suing under Title IX. And private parties can’t bring lawsuits targeting policies with disparate impacts on racial minorities under Title VI. But people with disabilities can allege disparate impact pursuant to Section 504.

The text of Section 1557 is ambiguous: either (1) claims that Section 1557 has been violated are treated uniformly across prohibited grounds or (2) plaintiffs have different rights and remedies depending upon whether they allege race, sex, disability, or age discrimination. Courts have already divided on this question.

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Changes in seasons, changes for children: Developments at the intersection of behavioral science, developmental neuroscience, and juvenile justice

By Robert Kinscherff

It is fitting that I am writing this first blog of my time as Senior Fellow in Law and Applied Neuroscience as we transition through the change of seasons.  It is a privilege to have the time afforded by this joint Fellowship between Harvard Law School (Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics) and Massachusetts General Hospital (Center for Law, Brain, and Behavior) to focus upon the intersections of behavioral science, developmental neuroscience, and juvenile justice.  The autumnal change of seasons is a fitting metaphor for the slow but profound changes occurring in juvenile justice which have been spurred in large measure by emerging neuroscience increasingly describing the neurobiology of adolescence.  This neuroscience provides the biological complement to what developmental psychologists have well described and what parents have long known:  Children are different.

This emerging neuroscience has become a quiet but increasingly pervasive force in helping us understand why most delinquent youth desist with maturation—even adolescents who are chronically delinquent and violent.  It helps us understand why punitive “tough on teen crime” approaches born of fears in the 1990’s of the rise of violent teen “super-predators” actually compromises public safety over time—especially when youth are tried as adults and incarcerated with adults.  And, it helps us understand why mass detention and incarceration of youth—many of them for non-violent offenses—not only harms those youth but tends to increase their risks of continued misconduct and of later deep penetration into the adult criminal justice system. Continue reading