dissenting:
I respectfully dissent from the majority’s holding that compensatory damages are not available under Title II of the Americans With Disabilities Act (ADA) without a showing of discriminatory intent. Maj. op. at 674-675.1
It has been established that compensatory damages are available for intentional violations of Title VI. See Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 70, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) (citing Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983)). Damages, therefore, are also available for violations of section 504 of the Rehabilitation Act (§ 504) and Title II of the ADA See 29 U.S.C. § 794a(a)(2); 42 U.S.C. § 12332. The majority accepts the argument of defendant City of Phoenix (City) that if a Title VI plaintiff must prove intentional discrimination in order to recover damages, a Title II plaintiff also must do so. Congress, however, has never indicated an intent to limit *677compensatory damages relief under Title II to only those plaintiffs who can prove that a discriminatory intent motivated the violator.
In Franklin, the Supreme Court noted the “longstanding rule” that “absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute.” 503 U.S. at 66, 70-71, 112 S.Ct. 1028. The Court held that damages were available under Title IX of the Education Amendments of 1972. It ruled that “we presume the availability of all appropriate remedies unless Congress has expressly indicated otherwise.” Id. at 66, 112 S.Ct. 1028. Although Franklin involved an allegation of intentional discrimination, the Court did not limit its general holding to cases of intentional discrimination. The Court, however, did indicate that it may be inappropriate to award damages in the absence of discriminatory intent where a violation is of Spending Clause legislation. Id. at 74-75, 112 S.Ct. 1028.
The Supreme Court revisited Franklin in Gebser v. Logo Vista Indep. Sch. Dist., — U.S. -, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). There, it stated that because “the private right of action under Title IX is judicially implied, we have a measure of latitude to shape a sensible remedial scheme that best comports with the statute.” Id. 118 S.Ct. at 1996. The Court concluded that a victim of sexual harassment could not recover damages from a school district due to the “contractual nature” of Title IX, unless school officials had actual knowledge of the discrimination and were deliberately indifferent to it.
Gebser’s decision not to permit damages in a Title IX case under a theory of respondeat superior liability or constructive notice is clearly distinguishable from this case for several reasons. First, this is not a respondeat superior case. Here, the City’s liability arises from its own acts and official policies. Second, Title II, unlike Title IX, is not Spending Clause legislation. Third, here, the private right of action is not judicially implied.2 Gebser, however, also noted that Franklin’s “general rule” in favor of all appropriate relief “yields where necessary to carry out the intent of Congress or to avoid frustrating the purposes of the statute involved.” Id. 118 S.Ct. at 1996 (quotations omitted). According to Franklin and Geb-ser, damages presumptively should be available in this case unless either Congress expressly limited the remedies available under Title II to instances of “intentional” discrimination, or permitting damages in the absence of a discriminatory intent would frustrate the purposes of Title II.
There is no “clear direction from Congress” in the text of Title II that it intended to limit the available remedies. Title II remedies are coextensive with those available under section 505 of the Rehabilitation Act.3 42 U.S.C. § 12133. Section 505, in turn, provides that “[t]he remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964” are available. Title VI does not have a remedies provision, but its judicially implied remedies were already well-established by the time the ADA was enacted in 1990. See Cannon v. University of Chicago, 441 U.S. 677, 710-11, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (When it passed Title IX in 1972 “Congress was under the impression that Title VI could be enforced by a private action.”). Title II prohibits disability discrimination by public entities. Title VT prohibits racial discrimination by any program or activity receiving federal funds. Section 504, like Title VI and Title IX, but unlike Title II of the ADA, is limited to recipients of federal funds. “By incorporating one section after another by reference— sections that mesh only imperfectly — Congress could not have made its meaning less clear.” Tyler v. City of Manhattan, 118 F.3d *6781400, 1409 (10th Cir.1997) (Jenkins, J., dissenting).
What is evident is that if Congress had intended to limit the availability of remedies under Title II, it would have done so as it did with Title III of the ADA. See id. at 1412. Title III relies on the remedies available in Title II of the Civil Rights Act of 1964. 42 U.S.C. § 12188(a)(1). Title II of the CM Rights Act explicitly limits relief to “preventive relief.” 42 U.S.C. § 2000a-8(a). Compare 42 U.S.C. § 12133 with 42 U.S.C. § 12188(a)(1).
The legislative history also indicates that several key members of Congress assumed that damages would be available for Title II violations. See Tyler, 118 F.3d at 1411-14 (Jenkins, J., dissenting) (summarizing legislative history). Senator Harkin, the ADA’s chief sponsor in the Senate, stated:
[Under titles I & III of the ADA], the bill expressly limits relief to equitable remedies. However, title II of the act, covering public services, contains no such limitation. Title II of the bill makes available the rights and remedies also available under section 505 of the Rehabilitation Act, and damages remedies are available under that provision enforcing section 504 of the Rehabilitation Act and, therefore, also under title II of this bill.
135 Cong. Ree. S10742, S10760 (Sept. 7, 1989). In the House Report, Congress indicated a concern over what remedies would be available to make Title II effective in combat-ting discrimination. See H.R.Rep No. 101-485(11) & (III) reprinted in 1990 U.S.C.C.A.N. 303, 322, 381, 445, 475. The Report notes: “As with section 504, there is also a private right of action [under Title II] for persons with disabilities, which includes the full panoply of remedies.” Id. at 381. Franklin indicates that the law always has been that all appropriate remedies are available unless Congress has said otherwise. Therefore, Congress would have expressly limited Title II’s remedies when it passed the ADA in 1990, if such a limitation were intended. Instead, the “full panoply of remedies” were intended to be available to victims of disability discrimination when Title II was violated.
While Title VI remedies determine which remedies are available under Section 505 and Title II, it does not necessarily follow that, because damages are “inappropriate,” absent intentional discrimination under Title VI, that is true for Title II. As mentioned above, Title II, unlike Title VI, was not enacted pursuant to the Spending Clause. In Guardians, Justice White reasoned that the Penn-hurst presumption that “only limited injunc-tive relief should be granted for unintended violations of statutes passed pursuant to the spending power” applied to Title VI. 463 U.S. at 602, 103 S.Ct. 3221 (citing Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 15, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981)). See also Gebser, 118 S.Ct. at 1996-2000. In Guardians, a disparate impact discrimination case, the Court was concerned that where a federal funds recipient “unintentionally” discriminates on the basis of race, the recipient may not be aware of its obligations under a voluntary Title VI program. See 463 U.S. at 602, 103 S.Ct. 3221. In Franklin, the Court stated that “the point of not permitting monetary damages for an unintentional violation is that the receiving entity of federal funds lacks notice that it will be liable for a monetary award.” 503 U.S. at 74, 112 S.Ct. 1028. In Gebser, the Court rejected a damages remedy where there was no actual knowledge by school officials of the independent discriminatory acts of a teacher. While considerations regarding notice and the “contractual nature” of Spending Clause legislation apply to Title VI, Title IX, and § 504 cases, Title II compliance is not required only of recipients of federal funds. It bears repeating that the ADA was not enacted under the Spending Clause.
In light of the affirmative duties imposed by the ADA on state and local governments to accommodate the disabled, I also do not think that the purpose of Title II is frustrated by permitting damages where the discriminatory behavior resulted not from animus but from “bureaucratic inertia” or a “lack of knowledge and understanding of the law.” As the legislative history demonstrates, Congress did not intend that complete relief would be available to a disabled individual denied access to public services only where it *679is shown that a public entity failed to make the required accommodations out of animus or bad-faith. Congress, the Supreme Court, and this circuit have recognized that discrimination against men and women with disabilities often results from thoughtlessness or a reluctance to employ the required resources to ensure accessibility, rather than from animus. See Alexander v. Choate, 469 U.S. 287, 295-298, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985) (discussion of Congressional intent behind § 504); Smith v. Barton, 914 F.2d 1330 (9th Cir.1990). Stating that there are “reasons to pause before too quickly extending even the first prong of Guardians to section 504,” the Supreme Court noted:
Discrimination against the handicapped was perceived by Congress to be most often the product, not of invidious animus, but rather of thoughtlessness and indifference — of benign neglect.
Alexander, 469 U.S. at 295, 105 S.Ct. 712 (1985). This circuit has recognized that “it would be a rare case indeed in which a hostile discriminatory purpose or subjective intent to discriminate solely on the basis of handicap could be shown.” Smith, 914 F.2d at 1340.
As the government points out in its amicus brief, the “disparate treatment” and “disparate impact” labels borrowed from the Title VI jurisprudence do not adequately define the contours of disability discrimination. Congress found that intentional discrimination was only one of a variety of forms that disability discrimination takes. In Title II’s statement of findings and purpose, Congress stated:
individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failures to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs or other opportunities!.]
42 U.S.C. § 12101(5). To combat some of these unintentional discriminatory effects, Title II imposes affirmative obligations on public entities to make “reasonable modifications” in their policies and facilities to ensure that the deaf have effective and direct access to 911 emergency services. 28 C.F.R. § 35.161-62. A failure to make such reasonable accommodations results in discriminating against the disabled. In Bartlett v. New York State Bd. of Law Examiners, 970 F.Supp. 1094, 1149 (S.D.N.Y.1997), the court held that “intentional” discrimination occurred under section 504 where the defendants erred in deciding that the plaintiff was not disabled. The court stated:
[I]ntentional discrimination is shown by an intentional, or willful, violation of the Act itself. With this understood, it becomes clear, that while the defendants may have had the best of intentions, and while they may have believed themselves to be within the confines of the law, they nevertheless intentionally violated the ADA and the Rehabilitation Act by willfully withholding from the plaintiff the reasonable accommodations to which she was entitled under the law.
Id. at 1151 (emphasis added). In Bartlett, the violation was “intentional” because the defendants intentionally refused to make an accommodation requested by the plaintiff. The City’s actions were no less problematic here, in light of the City’s legal duty to provide deaf residents with effective access to 911 emergency services. In spite of its knowledge that such effective services were not being provided, the City refused to take corrective action until this action was filed. Here, the City was under a legal obligation not to impose a space bar requirement, but did so anyway. The City claims that it did not know that the “no space bar” requirement in the Department of Justice’s (DOJ) Technical Assistance Manual was binding. Ignorance, however, should not excuse liability for compensatory damages that result from a municipality’s violation of Title II. See Owen v. City of Independence, 445 U.S. 622, 654, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980) (no immunity under 42 U.S.C. § 1983 for good *680faith constitutional violations).4 This violation of the ADA by the City is a sufficient basis to require it to compensate the plaintiffs for any damages that resulted from the City’s Title II violations.
I am persuaded that proof of intentional discrimination on the basis of disability is not a prerequisite to the recovery of compensatory damages under Title II of the ADA. The majority’s contrary holding, that a Title II plaintiff must prove discriminatory intent, erects a near-insurmountable wall against the recovery of compensatory damages under the ADA. I, therefore, respectfully dissent. I would reverse the district court’s summary judgment in favor of the City, and remand for a trial on compensatory damages.5
. The majority leaves open the question of what will suffice as a showing of an intentional violation — whether a "discriminatory animus” must be shown, or a showing of "deliberate indifference” is sufficient. Maj. op. at 675.
. Although Congress used a shorthand in drafting Title II whereby the remedies are defined by cross-reference to the well-established implied right of action under Title VI, Congress explicitly provided for a private right of action and a remedial scheme. See 42 U.S.C. § 12133LQ; see also Gebser, 118 S.Ct. at 1996.
. Section 505(a)(2) contains the relevant remedy provisions for violations of § 504. 29 U.S.C. § 794a(a)(2).
. The City could have escaped Title II liability by showing that compliance with the DOJ regulations would have required a fundamental alteration in the nature of the 911 system, or imposed an undue financial or administrative burden on the City. See 28 C.F.R. § 35.150(a)(3). The City does not contend, however, that this exception applies.
. I agree that the district court properly granted summary judgment to the Rodaboughs on the basis of qualified immunity.