March 2021 - Parks & Recreation - 33

contrary, the court found " N.P. is currently permitted to enjoy the parks and participate in the Town's
programs and activities to the extent he is otherwise
eligible. " As a result, the federal district court found
that any controversy concerning Defendant's actions
were no longer " immediate nor real. "
In reaching this determination, the federal district
court noted: " issuance of a declaratory judgment
deeming past conduct illegal is not permissible, as it
would be merely advisory. " In so doing, the court acknowledged the admonition by the Supreme Court that
" federal courts are not in the business of pronouncing
that past actions which have no demonstrable continuing effect were right or wrong. "

Conclusion
Because the alleged discrimination had ceased and
N.P. had " aged out " of the day-camp program, the
federal district court agreed with Defendant Town that
Plaintiffs' ADA claims were moot because there was
no indication that N.P. was to be excluded from future
participation in the Town's recreational programs on
the basis of his disability.
On the other hand, as noted above, the court would
allow Plaintiffs to amend their complaint to allege facts
to support their claim that the Town's failure to adequately train and supervise their employees violated
the ADA. To do so, in an amended complaint, Plaintiffs would have to sufficiently allege a history of indifference and discrimination against individuals with
disabilities in violation of the ADA.
In an amended complaint, the federal district court
acknowledged Plaintiffs' ADA case might still " fall
short under applicable law, but not before a full evidentiary development of the context in which N.P.'s
'six-year-old' words, or 'threats,' were expressed. "
In so doing, the court noted the Town's " mere recitation of maxims like 'safety,' unsupported by informed judgment or fact may well not suffice. " As
a result, the federal district court denied the Town's
motion to dismiss Plaintiffs' ADA complaint without further proceedings. According to the court, further consideration of Plaintiffs' ADA claims " may
require a trial or, at a minimum, well-supported pretrial summary judgment briefing. "
However, in lieu of further proceedings, the federal district court encouraged " the parties, with the
assistance of counsel, to resolve this matter on ratio

The federal district court noted:
" issuance of a declaratory
judgment deeming past conduct
illegal is not permissible as it
would be merely advisory. "
nal and reasonable terms acceptable to both sides. "
As noted by the court: " The principles at stake are
important ones, and the legal outcome is far from
clear; litigation may prove burdensome, and, in the
end, unsatisfying to all. "
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate
Professor in the School of Sport, Recreation and Tourism
Management at George Mason University (jkozlows@gmu.edu).
Webpage with link to law review articles archive (1982 to
present): mason.gmu.edu/~jkozlows.

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March 2021 - Parks & Recreation

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