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Discrimination Suit Against Girl Scouts Can Proceed: 7th Cir.

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By Mark Wilson, Esq. on May 12, 2015 12:59 PM

The Girl Scouts are known far and wide for their cookies, but the Girl Scouts proved to be less than sweet when it came to Megan Runnion.

Runnion, a deaf girl, received sign language interpreters in order to help her participate in Girl Scout activities. When the Girl Scouts pulled the interpreters, Runnion's mother complained. The Girls Scouts' response? They disbanded her troop. Megan's mother alleged that ran afoul of a federal law called the Rehabilitation Act.

Amendment Is Futile

The Rehabilitation Act forbids private organizations receiving federal funding from denying benefits to individuals on the basis of their disability. Seems like a pretty open-and-shut case: Megan has a disability and the Girl Scouts retaliated when Megan objected to removing the sign language interpreters by shutting down the troop. Pass the Thin Mints.

Except that the district court dismissed Megan's complaint because she hadn't sufficiently alleged that the Girl Scouts were subject to the Rehabilitation Act. In fact, the district court was so convinced that the Girl Scouts weren't covered, it dismissed the complaint without leave to amend, finding the Girl Scouts weren't within the scope of the Rehabilitation Act.

(Then there was some procedural weirdness -- like the district court dismissing without leave to amend, but then agreeing to a post-judgment amendment -- that the Seventh Circuit didn't very much care for.)

Plausible Plausibility

"Not cool," said Judge David Hamilton (we're paraphrasing). He criticized the district court's approach as akin to enforcing the old code pleading system, where plaintiffs had to plead discrete facts for every element of a cause of action. "Under the modern regime of the Federal Rules, the complaint need contain only factual allegations that give the defendant fair notice of the claim for relief and show the claim has substantive plausibility,'" he said. (That was a quote.)

The district court concluded that amending the complaint would be "futile" based on its interpretation of the Rehabilitation Act; i.e., that the Girl Scouts aren't "principally engaged" in providing "education, health care, housing, social services, or parks and recreation." The district court agreed with the Girl Scouts that private membership organizations are exempt from the Act -- but the Seventh Circuit reversed this issue, finding that Congress failed to explicitly exempt private membership organizations.

How could that be? The district court based its opinion on the fact that other anti-discrimination laws exempt private membership organizations, but "[t]he fact that other anti-discrimination statutes exempt private membership organizations expressly ... does not support but instead undermines the argument for an implied exemption here," the court said.

Finding that Megan could plausibly plead that the Girl scouts is engaged in providing at least one of the services placing it in the Rehabilitation Act's scope, the Seventh Circuit sent the case back. Since the statute hasn't been the subject of much interpretation, we'll undoubtedly being seeing this case again.

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