Johnson v. Board of Trustees of the Boundary County School District No. 101

concurring in part, dissenting in part:

I concur in the judgment and in Parts I and 11(A) of the majority opinion. At the time of the alleged discrimination, Patricia Johnson did not possess the required certification to be employed as a special education teacher by the Boundary County School District (the “District”). The accommodation that she sought — provisional authorization for the District to hire an uncertified teacher — is an accommodation to a local school district wholly within the discretion of the Idaho State Board of Education. The District did not have the authority to grant provisional authorization, and therefore could not grant Johnson the accommodation she requested. The district court properly granted summary judgment to the District.

We therefore need not decide whether the Equal Employment Opportunity Commission (“EEOC”) has properly interpreted its own regulation to include a duty of *568 reasonable accommodation in the first step of the inquiry into whether a person is a “qualified individual” under the Americans with Disabilities Act (“ADA”). 1 See 29 C.F.R. 1630.2(m) (interpreting 42 U.S.C. § 12111 (8) of the ADA). The majority, however, proceeds to…

Opinion by Judge O’SCANNLAIN; Partial Concurrence and Partial Dissent by Judge PAEZ.

OPINION

We must decide whether a disabled teacher is á “qualified individual with a disability” under the Americans with Disabilities Act.

I

A

Patricia (“Trish”) Johnson, who had a history of depression and bipolar disorder, taught special education in the Boundary County School District No. 101 (“District”) in Idaho for a decade. In May 2007, Johnson entered into a standard teaching contract with the District requiring her “to have and maintain the legal qualifications required to teach” special education during the 2007-2008 school year. In Idaho, “[ejvery person who is employed to serve in any elementary school or secondary school in the capacity of teacher ... shall *563 be required to have and to hold a certificate issued under authority of the state board of education.” Idaho Code § 33-1201 . The Idaho State Board of Education (“ISBE”) issued Johnson a teaching certificate valid from September 1, 2002 to September 1, 2007. Hence, Johnson’s teaching certificate was set to expire around the start of the 2007-2008 school year.

To renew her certificate, Johnson was required to complete at…

Jason Walta, National Education Association, Washington, D.C., argued the cause for the plaintiff-appellant and filed briefs. With him on the briefs were James M. Piotrowski and Marty Durand, Herzfeld & Piotrowski, Boise, ID, and John E. Rumel, Idaho Education Association, Boise, ID.

Bentley G. Stromberg, Clements, Brown & McNichols, P.A., Lewiston, ID, argued the cause for the defendants-appellees and filed a brief.

Dennis J. Dimsey, United States Department of Justice, Civil Rights Division, Washington, D.C., filed a brief on behalf of amici curiae the United States and United States Equal Employment Opportunity Commission. With him on the brief were Thomas E. Perez, Assistant Attorney General, Samuel R. Bagenstos, Principal Deputy Assistant Attorney General, and Roscoe Jones, Jr., Attorney, United States Department of Justice, Civil Rights Division, Appellate Division, Washington, D.C.; and P. David Lopez, General Counsel, Carolyn L. Wheeler, Acting Associate General Counsel, Lorraine C. Davis, Assistant General Counsel, and Anne Noel Occhialino, United States Equal Opportunity Commission, Office of General Counsel, Washington, D.C.

Before: DIARMUID F. O'SCANNLAIN and…