Tennessee v. Lane: The Legal Issues and the
Implications for People with Disabilities
Policy Briefing Paper
National Council on Disability
1331 F Street, NW, Suite 850
Washington, DC 20004
202-272-2004 Voice
202-272-2074 TTY
202-272-2022 Fax
Lex Frieden, Chairperson
September 4, 2003
I. Introduction and Overview
In 1998, George Lane and Beverly Jones brought a lawsuit
against the State of Tennessee under Title II of the Americans with
Disabilities Act (ADA) alleging that several courthouses in the
state were inaccessible to persons who use wheelchairs. They filed
suit under Title II, which prohibits governmental entities from
denying public services, programs and activities to individuals
on the basis of their disability. In addition, it provides that
persons who have been harmed by discrimination can seek damages
from governmental entities, including the states. This case, Tennessee
v. Lane, will be considered by the Supreme Court during its next
term.1
The Lane case raises an extremely important issue:
Does Congress have the power to "abrogate," i.e., override,
the states' immunity from suit and authorize Title II plaintiffs
to seek damages from the states? This policy briefing paper discusses
Tennessee v. Lane and the constitutional and policy issues it raises.
The paper examines the Lane case in the context of the recent trend
in Supreme Court decisions limiting the power of Congress to regulate
the states. It argues that the Supreme Court should decide that
Title II does override the states' sovereign immunity and that these
plaintiffs can seek damages from the State of Tennessee.
A. The "Federalism" Debate
It may seem odd that the Supreme Court has yet to
decide at this late date in our history whether Congress has the
power to require states to provide access to people with disabilities
and to pay damages if they fail to comply. We are accustomed to
assuming that, at least since the wave of civil rights legislation
that began in the 1960s and continued through the enactment of the
ADA in 1990, Congress has the power to prevent discrimination and
to protect persons from discrimination by government and the private
sector alike. Yet, recent cases decided by the Supreme Court, primarily
over the past decade, have significantly revised the set of legal
principles that govern the relationship between the states and the
federal government.
Part IV discusses this debate over federalism principles
in detail. In brief, the argument is over the power of Congress,
under the Constitution, to tell the states what to do. A decade
ago, it was assumed that Congress could regulate the states much
as it regulates private companies. As long as the state activities
affected interstate commerce, Congress could require the states
to abide by certain standards and could authorize individuals to
sue states that failed to comply. In addition, it was assumed that
Congress had broad power to enforce constitutional rights by prohibiting
the states from engaging in unfair discrimination against particular
groups. It was also assumed that Congress could require the states
to comply with a broad range of requirements, including providing
access to people with disabilities, as a condition of receiving
federal funds. Every federal statute protecting people with disabilities
from discrimination by the states relies on one or more of these
assumptions.
B. Restrictions on Congress' Power
Bit by bit, at least some of the broad powers of Congress
have been restricted by a series of Supreme Court decisions. Most
of these cases have been decided by a 5-4 vote with passionate disagreements
among the Justices. The good news is that these cases have generally
not called into question the authority of Congress to regulate private
companies or even local governments. Of course, the Court may interpret
the ADA in a way that makes it harder to enforce against private
companies, e.g., by adopting a very narrow definition of disability,
but such opinions do not question the basic power of Congress to
regulate private entities. The cases have had their most dramatic
impact in limiting the power of Congress to abrogate the states'
"sovereign immunity." The concept of sovereign immunity
is discussed in more detail below, but the basic idea is that states
(like traditional monarchs) are "sovereign" and Congress
can authorize individuals to sue them only under very limited conditions.
At one time, the Court said that Congress could use
its power under the Commerce Clause to abrogate the sovereign immunity
of the states but that principle was rejected by the Court in 1996.
A decade ago, it appeared that Congress had broad power to nullify
the states' sovereign immunity in order to enforce constitutional
rights, but the Court began to whittle away at Congress' discretion
to use this power in a series of cases beginning in 1997. The power
to enforce constitutional rights has proven extremely important
in federal statutes that prevent discrimination based on race and
gender, and Congress' enforcement power in those areas has been
largely unaffected. However, a divided Court in 1985 said that disability
discrimination should not be analyzed like race and gender discrimination
because the states more frequently have a legitimate justification
for treating persons with disabilities differently. The principle
of that case has made it more difficult for Congress to rely on
its enforcement power to regulate the states' treatment of persons
with disabilities.
The Garrett Decision
The most recent dramatic example of the trend limiting
Congress' power was the Garrett case, decided in February
2001.2 Garrett involved two plaintiffs, Patricia
Garrett and Milton Ash, who sued the State of Alabama under Title
I of the ADA. Title I prohibits employment discrimination and requires
employers, including states, to provide a reasonable accommodation
for qualified persons with disabilities who need the accommodation
to perform the essential functions of a job. Garrett, a registered
nurse, was diagnosed with breast cancer and underwent various treatments
that required an extensive absence from work. Upon her return to
work, Garrett was forced to give up her director position and take
a lower-paying job. Ash, a night-shift security officer for Alabama's
department of youth services, requested, on the basis of chronic
asthma, that the department modify his duties to minimize his exposure
to carbon monoxide and cigarette smoke. Later, after being diagnosed
with sleep apnea, he requested that he be reassigned to daytime
shifts. The department refused both requests. The Court ruled that
Congress, in enacting Title I, did not have the power to nullify
the states' sovereign immunity, and, therefore, the plaintiffs could
not seek damages from the state of Alabama.
The rationale of the Court's decision is discussed
in more detail below, but the core concern of a majority of the
Court was that there was not an extensive record of constitutional
violations by the states in discriminating against persons with
disabilities in the employment area. The idea that there must be
a record of constitutional violations for Congress to enforce constitutional
rights is a new development. The Court first hinted at it in 1997,
then expressly adopted it in 1999. There was serious disagreement
among the Justices in Garrett. Several Justices felt strongly
that, even if this new requirement were to be applied, there was
a long history of discrimination by the states. A majority
of Justices claimed that, to the extent there was a record of discrimination,
the states' actions were usually not unconstitutional and primarily
involved matters other than employment.
The holding in Garrett is limited to employment
discrimination claims under Title I. Since the ruling in Garrett,
the lower courts have been divided on the constitutionality of the
damage remedy in Title II. A resolution appeared imminent when the
Justices granted certiorari in Medical Board of California v.
Hason,3 but California withdrew its petition at
the urging of disability advocates. In that case, the Medical Board
denied Hason's application to practice medicine on the basis of
Hason's history of mental illness, even though it had not evaluated
his current condition. Tennessee v. Lane will likely resolve
important constitutional questions about the power of Congress and
the future effectiveness of Title II.
What is at stake in Lane?
The power of Congress to override the states' sovereign
immunity in enacting Title II has significant implications for people
with disabilities. Title II covers essentially all activities of
state and local governments -- statutes, administrative regulations,
and day-to-day decisions by state officials. The fact is that the
states have frequently discriminated against people with disabilities
by denying access to facilities, excluding people with disabilities
from government programs and services, and treating individuals
with disabilities abusively and unfairly in state institutions.
Whether these actions amounted to constitutional violations is a
difficult issue and one the Justices will likely debate in deciding
the Lane case.
If the Supreme Court finds that Title II does not
validly abrogate the states' sovereign immunity, it will have significant
implications for the effectiveness of Title II in preventing the
states from engaging in discriminatory practices. At the very least,
it will prevent individuals from seeking damages against the states
for denying access to facilities. It is important to note that overturning
the Title II damage remedy does not necessarily mean overturning
other Title II remedies, such as "injunctive relief,"
which focuses on future state conduct. In other words, even if the
Court holds that persons who are denied access cannot seek damages,
they may still be able to obtain an order directing the state to
provide access in the future. Such a remedy has traditionally not
required overriding the states' sovereign immunity. However, as
explained further below, even this kind of remedy may be in jeopardy
because it depends on the assumption that the states' activities
affect interstate commerce. Although this issue will not be directly
before the Court in Lane, it will be lurking in the background.
So, there is much at stake in Lane. Nevertheless,
there are some grounds for optimism. Title II presents a number
of considerations different from those the Court faced in Garrett.
The fact that Title II can be used to enforce various constitutional
rights may encourage the Court to decide the abrogation issue for
particular applications of Title II rather than for Title II as
a whole. In addition, the Supreme Court concluded in Garrett
that there is a more extensive record of states denying access than
engaging in employment discrimination, which was the concern in
Garrett. There are other differences as well. This paper
argues below that there is ample basis for the Court to uphold a
damage remedy for Title II, and that Lane and Jones are entitled
to damages if they can prove their case.
II. Background of Tennessee v. Lane
George Lane and Beverly Jones are both paraplegics
who use wheelchairs. In 1996, after police charged Lane with two
misdemeanor offenses, Lane was summoned to appear at the Polk County
Courthouse in Benton, Tennessee. All court proceedings in that courthouse
took place on the second floor, and, at the time, the courthouse
had no elevator. At his first appearance, Lane dragged himself up
two flights of stairs to get to the courtroom. He was then arraigned
and ordered to appear at a later date for his hearing. Lane returned
for the hearing, but refused to climb to the courtroom and further
declined to be carried by officers. The court ordered Lane's arrest,
and he was jailed. In subsequent proceedings, Lane remained on the
ground floor, while his counsel went back and forth between him
and the second-floor courtroom. Additional proceedings were held
on the ground floor in locations inaccessible to the public. Lane
ultimately pleaded guilty to driving with a revoked license in the
accident in which he lost his leg.
Jones works as a certified court reporter in Tennessee.
Because many courthouses in Tennessee are inaccessible to her, her
opportunity to work is limited. Jones has identified 25 counties
in Tennessee that she claims were inaccessible at the time her complaint
was filed. She requested modifications to the courthouses in four
of these counties but none of these courthouses has been made accessible
to her.
The Legal Proceedings
Lane and Jones filed suit against the state of Tennessee
and 25 Tennessee counties alleging that their operation of courthouses
inaccessible to individuals with disabilities violates Title II
of the ADA. In the district court, the State of Tennessee argued
that Congress did not have the power to abrogate the states' immunity
from damage claims in federal court under the Eleventh Amendment
to the Constitution. The court of appeals affirmed the lower court's
decision to deny Tennessee's motion to dismiss, and upheld the constitutionality
of Title II as a means to enforce due process violations. Tennessee
then sought review in the Supreme Court. Despite their victory in
the lower court, the private plaintiffs, along with the U.S. Justice
Department, supported review by the Supreme Court. The Court will
schedule oral argument and decide the case sometime during its next
term, which begins in October 2003.
III. The Importance of the Title II Damage Remedy
Before discussing the legal analysis that will be
applied in Lane, it is useful to review the importance
of Title II and its authorization of a damage remedy against the
states.
A. The Scope of Title II
Title II of the ADA is intended to prevent discrimination
against persons with disabilities by state and local governments.
Title II provides that "no qualified individual with a disability
shall, by reason of such disability, be excluded from participation
in or be denied the benefits of the services, programs, or activities
of a public entity or be subjected to discrimination by any such
entity." 4 Title II applies to the states whenever
the discriminatory conduct is committed by a state court, a state
agency, or an individual state official, and the conduct denies
state benefits or restricts participation in any public program
or activity, such as social service programs, educational programs,
public transportation, judicial proceedings, or the political process
itself. The broad reach of Title II means that it is an important
guarantee of fairness in the government's treatment of persons with
disabilities.
B. Title II Litigation
The effectiveness of Title II is due in large measure
to the incentives it creates for compliance on the part of public
entities. Recent examples of settlements illustrate the breadth
and effectiveness of Title II. 5
Attorneys who represent plaintiffs in Title II cases
- and common sense - confirm that the possibility of damages award
is a significant factor in promoting out-of-court settlements. Threatened
with liability for damages and attorneys' fees, states frequently
are more willing to accept responsibility, modify their policies,
and provide individual relief, including damages, where appropriate.
Even though attorneys fees can be awarded to successful Title II
plaintiffs,6 a portion of a damages award is sometimes
paid to private attorneys as well. Thus, the Title II damages remedy
helps encourage private attorneys to represent plaintiffs in these
cases.
C. The Benefit of Damages of Damages to Individual
Plaintiffs
An important benefit of the damages remedy in Title
II is that it often provides plaintiffs with the only real relief
complainants seek. Injured parties sometimes derive no practical
benefit from injunctive relief, that is, an order to the state to
correct its practices or policies. This is particularly true if
an individual is excluded from an event, program, or service in
which there is no future opportunity to participate. For example,
in a Title II education case where a plaintiff is improperly excluded
from an educational program and does not seek to return to the program,
damages are often the only means of relief. Injunctive relief may
prevent future discrimination once the discriminatory entity is
sued, but, without an accompanying damages remedy, the state may
have l little incentive to comply with the law until sued. Furthermore,
the lack of a damages remedy can discourage individuals from pursuing
a claim at all, thereby weakening the effectiveness of the ADA.7
D. The Alternative of Section 504
Section 504 of the Rehabilitation Act of 1973 provides
for a damages remedy against the states if the state agency has
received federal funds.8 However, Section 504 has some
limitations. First, while most state entities accept some form of
federal aid, many do not. Without Title II, there would be no damages
remedy against these entities. Second, as discussed in Part IV,
a number of lower courts have held that plaintiffs with disabilities
cannot obtain monetary, compensatory damages against state entities
under Section 504, reasoning that the states have not waived their
sovereign immunity with respect to the statute.9
E. Inadequacy of State Law
The guarantees of Title II are not duplicated in state
law. In Garrett, the petitioners argued that the ADA's protections
were unnecessary because all 50 states prohibited government-based
discrimination against individuals with disabilities and provided
protections and relief analogous to the ADA. The Supreme Court appeared
to agree.10 But an exhaustive analysis of relevant state
laws by Professors Ruth Colker and Adam Milani indicates otherwise.
They concluded that less than half (24 of 51, including the District
of Columbia) "provided clear statutory language with protection
comparable to ADA Title II." 11 Moreover, state
statutes, even when they could be interpreted to require strong
remedies, may not be enforced or may be very narrowly interpreted
by state courts.
F. Injunctive Relief
As discussed below in Part IV, Congress can create
substantive obligations that can be enforced by bringing actions
against individual state officials though it may not be able to
subject the state itself to pay damages from the state treasury.12
Thus, a suit for injunctive relief ¾ for example, an order
requiring a state agency to change its practices in the future by
providing access to a government building for persons with disabilities
¾ can be brought against the head of a state agency even
though the suit could not seek damages for past conduct.
However, one source of congressional power to provide
injunctive relief, the Commerce Clause, has recently been restricted
by the Supreme Court. In order to obtain injunctive relief based
on congressional authorization under the Commerce Clause, the regulated
activities must significantly affect interstate commerce. The Supreme
Court's interpretation of activities that affect commerce has been
more restrictive in recent decisions.13 Consequently,
there is some possibility that the Supreme Court might conclude
that some applications of Title II do not apply to activities that
affect commerce. In that case, the ability of private plaintiffs
to obtain even injunctive relief, rather than just damages, might
depend on the abrogation of sovereign immunity. This issue will
not be before the Court directly in Tennessee v. Lane,
but the implications of this case for injunctive relief may also
be significant.
G. Summary
The Title II damages remedy against the states is
an important tool for protecting persons with disabilities from
discrimination by the states. While Section 504 of the Rehabilitation
Act also provides a damage remedy for discrimination by public entities
that receive federal funds, Section 504 applies to fewer state entities
than does Title II. As previously mentioned, some circuit courts
have not allowed Section 504 damage remedies. In addition, the Court's
determination of whether Title II overrides the states' sovereign
immunity may have implications for injunctive relief under some
circumstances. Thus, the stakes in Lane are high.
IV. The Federalism Framework
One of the most challenging and controversial areas
of constitutional law involves the power of Congress to regulate
the states. A complete discussion of legal principles in this area
is outside the scope of this policy paper. However, it is useful
to summarize the most important concepts before applying them to
the Lane case. When Congress regulates the states, it generally
relies on one of three clauses in the Constitution - the Commerce
Clause, Section 5 of the Fourteenth Amendment, or the Spending Clause.
All three clauses have been used as the basis for laws protecting
people with disabilities. These clauses can be thought of as the
affirmative basis of congressional power. On the other side of the
equation are clauses that limit this power, such as the Tenth Amendment
and the Eleventh Amendment.
The Eleventh Amendment, in particular, has figured
prominently in cases involving remedies against the states because
the Court has said the Amendment reflects the sovereign immunity
of the states, that is, the traditional (even pre-Constitutional)
doctrine that sovereign governments, including the states, cannot
be sued over their objection. The principal question in Lane
is whether Congress properly exercised its power to abrogate this
immunity by authorizing individuals to sue states for damages under
Title II based on Section 5 of the Fourteenth Amendment.
A. The Commerce Clause
The Commerce Clause gives Congress the power to regulate
"commerce among the several states." After the New Deal,
when the Supreme Court adopted an expansive view of congressional
power under the Commerce Clause, this broad power was thought to
give Congress substantial authority to regulate both the private
sector as well as state and local governments.14 Recently,
however, a majority of the Court has adopted a more restrictive
approach in its interpretation of the reach of the Commerce Clause.15
In these cases, the Court has been deeply divided, with many Justices
objecting to the more restrictive approach. The reach of the Commerce
Clause can be important in cases where Congress imposes an obligation
on the states, for example, to provide access to people with disabilities.
As discussed below, Congress can use the Commerce Clause to create
substantive obligations that can be enforced by bringing private
actions against individual state officials though it cannot use
its Commerce power to require the state to pay damages from the
state treasury.
B. The Eleventh Amendment
The text of the Eleventh Amendment provides that federal
courts are prohibited from hearing suits filed "against one
of the United States by Citizens of another State." The text
of this Amendment is very narrow. It would only bar, for example,
a citizen of Florida from suing the state of New York in federal
court. It would not prevent a citizen of New York from suing the
state of New York in federal court or bar any suits in state court.
Thus, the text of the Eleventh Amendment itself does not expressly
codify a broad principle of sovereign immunity. However, very soon
after the Amendment was ratified, the Supreme Court interpreted
the Amendment to have a much broader effect. In Hans v. Louisiana,16
decided in 1890, the Court interpreted the amendment to be only
a partial codification of the doctrine of sovereign immunity, which
the Court said predated the Constitution. In other words, states
would have sovereign immunity even without the Eleventh Amendment
and, therefore, the scope of this immunity was not governed by the
text of the Amendment.
This broad (and quite possibly incorrect) interpretation
still left many questions unanswered, in particular when Congress
could abrogate the states' immunity. One possible answer is that,
although sovereign immunity predates the Constitution, the Constitution
gave Congress power to abrogate this immunity whenever it acts under
one of its expressly delegated powers. The Court did appear to take
that position in 1989 when it decided, in Union Gas, that
the Commerce Power was so broad that it could be used to abrogate
sovereign immunity despite the Eleventh Amendment.17
However, in Seminole Tribe, a 1996 decision, the Court
overruled Union Gas and held that Congress did not have
the power under the Commerce Clause to authorize a private person
to sue a sovereign state in federal court.18 That case
was followed by Alden v. Maine,19 in which the
Court held that the Eleventh Amendment also barred Congress from
using the Commerce Clause to authorize suits against states in state
court.
The approach taken in these cases remains controversial.
All of them reflected a Court deeply divided over fundamental principles.
Nevertheless, the result of this line of cases is that the Supreme
Court no longer recognizes the power of Congress to use the Commerce
Clause to create a remedy against the states, for example, an order
to pay damages out of the state treasury. The extent to which this
principle weakens federal law is significantly influenced by two
considerations. First, the Supreme Court has long held that federal
laws that are authorized under the Commerce Clause can be the basis
of an action against an individual state official, even if the suit
cannot be brought against the sovereign state.20 Thus,
a suit for injunctive relief -- for example, an order requiring
a state agency to change its practices in the future -- can be brought
against the head of a state agency even though the suit could not
seek damages for past conduct. Injunctive relief can be ordered
on the theory that the remedy is directed against an individual
while the damages remedy is viewed as a remedy directed at the sovereign
state. This distinction between injunctive relief, which is technically
ordered against an individual, and damages, which is viewed as an
order against the state, is something of a legal fiction that has
puzzled law students (and lawyers) for many years. However, it is
an extremely important principle that allows Congress to impose
substantive obligations on the states without having to abrogate
sovereign immunity. The applicability of this principle depends
on the conclusion that the activities of the state significantly
affect interstate commerce. Thus, the Court's more restrictive approach
to the reach of the Commerce Clause may make these kinds of remedies
unavailable in certain situations.
C. The Spending Clause
The limitation on Congress' Commerce Clause authority
to abrogate sovereign immunity, and perhaps even to authorize a
suit seeking injunctive relief, would not have serious consequences
if Congress could use one of its other sources of power, e.g., the
Spending Clause or Section 5 of the Fourteenth Amendment, to accomplish
the same results. If a statute were struck down, Congress could
simply re-enact the provision on the basis of one of these other
Clauses. However, both of those other sources of power are subject
to limitations as well, as discussed below.
The Spending Clause provides that Congress may spend
money to "provide for the general welfare…." One
of the most important uses of this power is to require the states
to agree to comply with certain obligations as a condition of receiving
federal funds. The Court has stated that Congress can only abrogate
a state's immunity if it speaks very clearly in the legislation.21
In effect, the states must have a clear idea of what they are "getting
into" before agreeing to accept federal funds. Under those
circumstances, the states have voluntarily waived their immunity
if they receive federal funds. On the basis of the Spending Clause,
Congress has imposed a wide variety of obligations on the states,
ranging from a requirement to contribute to an unemployment compensation
insurance fund22 to a requirement that the states enforce
a minimum drinking age.23 The Spending Clause is also
the basis of Section 504 of the Rehabilitation Act, which imposes
obligations on the recipients of federal funds that parallel those
in the ADA.
However, there are still two major concerns about
the reach and effectiveness of Section 504. First, not all state
entities receive federal funds. While this gap in coverage is limited,
it can be significant for individuals who are discriminated against
by an agency of the state that is not covered under Section 504.
More important, perhaps, is the fact that the validity of Section
504 has been frequently challenged. Several courts, in fact, have
held that section 504 is not a constitutional use of the Spending
Clause or have placed limitations on plaintiffs' ability to obtain
damages.24
D. Section 5 of the Fourteenth Amendment
Section 5 of the Fourteenth Amendment grants Congress
the power to enforce the protections in Section 1 of the Fourteenth
Amendment, namely Equal Protection and Due Process. It may do so
both by prescribing sanctions for actual constitutional violations,
and by prohibiting otherwise constitutional conduct as a means to
prevent unconstitutional behavior. Valid Section 5 legislation can
authorize private individuals to bring lawsuits against the states
themselves, including suits that seek damages.25 Congress
cited Section 5 in enacting the ADA and expressly stated that the
ADA was intended to abrogate the states' sovereign immunity.26
Section 5 legislation is not limited to prohibiting
and remedying clearly unconstitutional conduct.27 Congress'
authority to remedy or prevent unconstitutional discrimination under
Section 5 includes the authority to proscribe some conduct that
is not itself unconstitutional.28 The Court has said
that Congress may enact "reasonably prophylactic legislation"
when faced with "difficult and intractable problems, [which]
often require powerful remedies." However, the scope
of Congress' authority under Section 5 has been 29 a controversial
and difficult issue, and the Court has had difficulty providing
clear guidelines as to the extent of Congress' power, particularly
to bar conduct that is itself not unconstitutional.
In Katzenbach v. Morgan,30 the Court upheld
a federal ban on state literacy tests, even though the Court had
previously held that literacy tests did not violate the Fourteenth
Amendment. One interpretation of Katzenbach was that Congress could
impose any requirement on the states if it simply had a rational
basis for concluding that an obligation on the states could prevent
a constitutional violation. That would have signaled a very broad
reading of Section 5, and one that could amount, in practice, to
allowing Congress to create new substantive constitutional rights.
However, later cases, such as Oregon v. Mitchell,31 adopted
a narrower interpretation. The Court indicated that it would determine
whether there was a sufficiently close relationship between the
constitutional violations that were the basis of the statute and
the remedies created by Congress.
E. Requiring that the Remedy be Justified: City of
Boerne and College Savings
Although Oregon v. Mitchell rejected a very broad
reading of Congress' discretion under Section 5, it still appeared
that there would need to be only a causal relationship between the
prohibitions and the prevention of constitutional violations for
Congress to act. Beginning with City of Boerne v. Flores32
in 1997, the Court decided a series of cases that has made it more
difficult for Congress to use Section 5 to regulate the states.
In Boerne, the Court struck down a federal law requiring that state
laws restricting religious practices meet a "compelling interest"
test.33 It was clear that the federal statute went further
than banning recognized constitutional violations. However, could
it be upheld on the basis that it prevented constitutional violations?
The Court recognized that there was difficulty in
identifying the boundary between a law that prevented constitutional
violations and one that created an entirely new standard.34
The Court struck down the law on the grounds that there must be
a "congruence and proportionality" between the injury
to be remedied and the obligations imposed on the states.35
The Court found that the congressional remedies were "so out
of proportion to a supposed remedial or preventive objective that
[they] cannot be understood as responsive to, or designed to prevent,
unconstitutional behavior."36
City of Boerne was followed by Florida Prepaid Postsecondary
Education Expense Board v. College Savings Bank,37 which
addressed a federal statute authorizing private persons to sue a
state for patent infringement. The Court recognized that the taking
of patent rights by the state could constitute a taking of a property
interest in violation of the Due Process Clause. The Court relied
on City of Boerne to say that it must review the "congruence
and proportionality" of the congressional remedy. However,
Florida Prepaid appeared to represent a subtle shift in the Court's
analysis. Florida Prepaid indicated that the Court will require
not only that a statute based on Section 5 address recognized constitutional
violations, but also that an adequate historical record of state
violations justify the prescribed remedy.
F. Requiring that Congress Establish a Record: Kimel
v. Florida Board of Regents
The next major sovereign immunity case considered by the Court was
Kimel v. Florida Board of Regents.38 In Kimel, the Court
considered the constitutionality of the damage remedies in the Age
Discrimination in Employment Act.39 State laws that bar
discrimination based on age are generally subject to a rational
basis test, that is, the state need only point to a plausible reason
to discriminate for the statute to be upheld. Even though Congress
had identified discriminatory practices by the states when it enacted
the statute, the Court opined that the great majority of state laws
that discriminate on the basis of age are constitutional under this
permissive standard. The Court then examined the legislative record
that led to the passage of the Age Discrimination Act and concluded
that Congress had not identified a pattern of age discrimination
that constituted constitutional violations. In a rather stark comment
about the validity of congressional reasoning, the Court stated:
"Congress had no reason to believe that broad prophylactic
legislation was necessary in this field."40
Kimel confirmed and made more specific the more demanding
standard announced in Florida Prepaid by insisting on a record of
constitutional violations by the states to justify congressional
action that prohibits states from engaging in constitutional activity.
This progression of sovereign immunity cases set the stage for the
Court's consideration of Title I of the ADA in Garrett.
G. Sovereign Immunity and Title I of the ADA: Board
of Trustees v. Garrett
In Garrett, the Court considered whether Congress
abrogated the states' sovereign immunity in enacting Title I of
the ADA. Title I of the ADA imposes a number of obligations on public
and private employers, barring discrimination based on disability
and requiring reasonable accommodations for employees with disabilities,
among other things. In Garrett, two state employees, alleging that
they had been subjected to discrimination and were denied a reasonable
accommodation by the State of Alabama, sued for damages. The Court,
relying on City of Boerne and Kimel, concluded that Congress had
not validly abrogated the states' immunity and ordered that the
employees' claims be dismissed.
Applying what it called "familiar principles,"
the Court said that a three-step abrogation analysis is required.41
First, the constitutional right at issue must be identified. Second,
the history of the states' conduct must be examined to determine
if there have been constitutional violations. Finally, if there
is a pattern of such violations, the remedies established by Congress
must be examined to determine if they are congruent and proportional
to the record of state misconduct. The Court held that the constitutional
right addressed in Title I is freedom from unconstitutional employment
discrimination against people with disabilities. The Court noted
that such actions are constitutional if they satisfy "rational
basis review," that is, if there is some plausible legitimate
basis for the discrimination. This standard of review is much less
demanding than the standards applied to classifications based on
race or gender.42 As discussed further below, this distinction
has had significant implications for other cases. In particular,
the Court has struck down a damages remedy in cases based an age
or disability and upheld it in cases based on race or gender.43
After reviewing congressional findings and other legislative
history of Title I, the Court concluded that there was very little
evidence of constitutional violations by states in the employment
context and that most of the examples of discrimination identified
in the record were actions that could be supported by some rational
basis, e.g., a desire to save resources.44 In particular,
it held that the refusal to provide a reasonable accommodation did
not constitute a constitutional violation.
Finally, the Court reasoned, even if some constitutional
violations by the states in the employment context could be identified,
the remedy of requiring a reasonable accommodation was not appropriate:
"[T]he accommodation duty far exceeds what is constitutionally
required in that it makes unlawful a range of alternate responses
that would be reasonable but would fall far short of imposing an
'undue burden' upon the employer." 45
H. Sovereign Immunity and the Family and Medical Leave
Act: Nevada v. Hibbs
The June 2003 decision in Nevada Dept. of Human Resources
v. Hibbs is the Court's latest statement on the scope of Congress'
Section 5 enforcement power and its ability to impose a damages
remedy on the states.46 Hibbs considered whether the
Eleventh Amendment prohibited individuals from suing states for
damages under the Family and Medical Leave Act of 1993 (FMLA). Hibbs
was an employee of the Nevada Department of Human Resources and
sought leave to care for his ailing wife under the FMLA, which entitles
an eligible employee to up to 12 weeks of unpaid leave annually
for any of several reasons, including the onset of a "serious
health condition" in the employee's spouse, child, or parent.
The Department granted his request, but then insisted that Hibbs
return to work before Hibbs had exhausted his 12 weeks of leave.
When Hibbs did not return, the Department fired him.
In upholding the damages remedy, the Court noted that
the FMLA aims to protect the right to be free from gender-based
discrimination in the workplace. Under the Court's Fourteenth Amendment
jurisprudence, gender-based classifications are subject to heightened
scrutiny: they must "serve important governmental objectives"
and "the discriminatory means employed must be substantially
related to the achievement of those objectives." In contrast,
classifications based on disability are subject to a more deferential
standard; the Supreme Court has ruled that only a "rational
basis" for different treatment based on disability is required.47
Historically, virtually every statute reviewed under the rational
basis test has been upheld.
The different review standard applied to gender-based
(or race-based) classification and disability-based classification
was probably the most important factor leading to different results
in Garrett and Hibbs. The Justices noted that establishing a pattern
of historical discrimination is easier for gender-based discrimination,
which is judged under a higher level of judicial scrutiny. The Court
specifically noted that Hibbs was unlike Garrett, in which it found
Congress' record of constitutional violations insufficient. Another
important difference in the Court's view was that, unlike Title
I of the ADA, the FMLA was "narrowly targeted at the fault
line between work and family - precisely where sex-based overgeneralization
remains the strongest - and affects only one aspect of the employment
relationship." 48 Moreover, the court found the
FMLA restricted the cause of action to certain employees and limited
the duration of the leave in order to balance the interests of the
employee and employer. According to the Court, Title I was not subject
to these kinds of narrowing limitations.
V. Applying the Federalism Framework in Lane
Lane presents a different set of issues to the Supreme
Court than the ones the Court considered in Garrett. These differences
flow primarily from the differences between Title I and Title II
of the ADA:
- First, Title II applies to actions by the states
that implicate a number of different constitutional rights arising
from both the Equal Protection and Due Process Clauses. In contrast,
Garrett raised only the question of whether Congress had the power
to abrogate the states' sovereign immunity in connection with
claims based on the Equal Protection Clause in the context of
employment.
- Second, Title II applies in many situations where
the Court has said state action is subject to "heightened
scrutiny," i.e., there is a greater burden on the state to
justify discriminatory policies. In Garrett, on the other hand,
the Court said that the state's conduct would be assessed under
a more deferential rational basis review.
- Third, at least some applications of Title II are
aimed at clearly recognized constitutional violations, rather
than enforcing requirements that go beyond constitutional requirements.
Even when Title II is applied to require more than the Constitution
requires, these obligations can arguably be viewed as "reasonably
prophylactic," 49 and, thus, within Congress'
power to enact under Section 5. In contrast, the Court in Garrett
focused to a large extent on the requirement that states provide
a reasonable accommodation, a requirement that the majority of
the Court felt went beyond the constitutional obligation to be
free of irrational discrimination.
- Fourth, the evidence that was considered by Congress
when the ADA was passed reflects a more extensive record of discrimination
by the states in the provision of benefits and services to people
with disabilities. According to the Court, much of the evidence
presented in Garrett regarding the states' record of discrimination
actually concerned the types of discrimination covered by Title
II.
Each of these differences is discussed below.
A. The Constitutional Rights at Issue
Because Title II applies to situations beyond the
employment context, it addresses unconstitutional conduct in many
more situations than Title I. Title II enforces not only guarantees
of the Equal Protection Clause by prohibiting irrational discrimination,
it safeguards the rights of individuals with disabilities that are
based on the Due Process Clause. In Garrett, the Court focused on
the Title I requirement for employers to provide a reasonable accommodation.
Nevertheless, the Court's opinion appeared to strike down the damage
remedy for all applications of Title I to state employees. However,
the breadth of Title II raises the possibility that the Court will
focus on particular categories of Title II claims, rather than Title
II as a whole. That is the approach taken by some courts of appeals.50
The examples below illustrate the broad scope of Title II.
Barring Irrational Discrimination
by Government Agencies. Title II guarantees that state and
other governmental entities will not irrationally discriminate on
the basis of disability.51 Irrational or arbitrary actions
by the government can violate both the Equal Protection and Due
Process Clauses.52
Educational Institutions.
Title II prevents public educational entities from irrationally
denying children with disabilities an education because of their
disabilities.53
Right to Vote. Title II can
be used to prevent a state from denying an individual with a disability
the right to vote on the basis of his disability.54
Physical Liberty. Unjustified
denial of physical liberty can violate the Due Process Clause.55
Similarly, Title II can be used to protect individuals with disabilities
from unnecessary and improper confinement.56
Protection Against Cruel and Unusual
Punishment. The Supreme Court has recognized a fundamental
right to be free from cruel and unusual punishment under the Eighth
Amendment.57 Title II protects the constitutional right
of inmates with disabilities not to be subjected to cruel and unusual
punishment as a result of their disabilities.58
Access to Judicial Proceedings.
The Lane case itself deals with access to judicial proceedings.
Some courts have found that Title II can be used to enforce a right,
based on the Due Process Clause, to participate meaningfully in
a judicial proceeding.59 Part VI discusses the constitutional
basis for these types of claims below.
B. The Level of Scrutiny
Discrimination on the basis of disability is subject
to low-level "rational basis" review.60 In
contrast, race classifications are evaluated under a very demanding
"strict scrutiny," and gender classifications are evaluated
under a somewhat less demanding "medium scrutiny." 61
The position that disability classifications are subject only to
rational basis scrutiny was taken by a majority of the Court in
City of Cleburne.62 In City of Cleburne, the Supreme
Court applied what is sometimes called a "rational with teeth"
standard of review, striking down a zoning ordinance that required
a special use permit for a group home for people with intellectual
disabilities. The Court's reasoning in the Cleburne case was based,
in part, on its finding that the reasons for the discriminatory
actions of the state were based on negative attitudes and fears.63
However, despite the favorable outcome for the people with intellectual
disabilities in the Cleburne decision, the rule that the Cleburne
case established is that laws discriminating on the basis of disability
are subject only to rational basis review, and the Court has since
interpreted the Cleburne case very narrowly.64 The Cleburne
decision has had significant implications for the disability community
and was strongly criticized by Justice Marshall. In a vigorous dissent,
Justice Marshall, joined by Justices Brennan and Blackmun, argued
that "in light of the importance of the interest at stake and
the history of discrimination the retarded have suffered,"
the Equal Protection Clause requires the Court "to do more
than review the distinctions drawn by Cleburne's zoning ordinance
as if they appeared in a taxing statute or in economic or commercial
legislation." 65
One result of this difference is that it is more difficult
to establish a record of unconstitutional discrimination based on
disability by the states. This difference was noted in Hibbs, where
the Court contrasted the standard of review applied to family and
medical leave policies with the types of disability discrimination
at issue in Garrett. Chief Justice Rehnquist's majority opinion
noted that the heightened scrutiny given to gender discrimination
made "it easier to show a pattern of state constitutional violations."
66 Thus, the majority concluded that Congress has a stronger
basis for abrogating the states' sovereign immunity. On the other
hand, the Court stressed that the evidence of state constitutional
violations in Garrett was inadequate, in large part because of the
great deference permitted to the states under rational basis review.67
State policies that interfere with fundamental rights,
such as access to judicial proceedings and the right to vote, are
generally evaluated under a more demanding standard.68
In these cases, the Court has demanded that states provide a more
persuasive justification for their policies than simply a rational
basis. Thus, because the Lane plaintiffs allege that their fundamental
rights of access to a courtroom were denied, the Court may conclude
that these laws are subject to a more demanding standard than simply
rational basis review. In that case, it may be easier to show that
the states have engaged in a record of constitutional violations
and that a congressionally enacted damages remedy is reasonable.
C. Title II Remedies and Constitutional Obligations
In Garrett, the Court was concerned that Title I imposed
obligations that went beyond constitutional requirements, particularly
the requirement to provide a reasonable accommodation.69
As discussed above, however, many Title II applications enforce
established constitutional requirements. For example, applying Title
II to prevent states from excluding blind persons from serving on
a jury or to prevent inhuman treatment of disabled inmates enforces
established constitutional rights. In those cases, there is no concern
that Congress has attempted to create a new constitutional standard
or that it has exceeded the permissible boundaries of prophylactic
legislation. Thus, a panel of the First Circuit concluded that Congress
has the power to abrogate the states' sovereign immunity when Title
II is applied to enforce recognized constitutional rights.70
Even when Title II is applied to require more than
the Constitution requires, there is a strong argument that its use
can be justified as prophylactic and remedial because it is closely
related to constitutional violations. The Court has said that Congress
can use its power under Section 5 to enact "reasonably prophylactic
legislation" when faced with "difficult and intractable
problems [which] often require powerful remedies." 71
For example, Title II has frequently been used to ensure that persons
with disabilities can exercise the right to vote.72 Congress
can impose obligations on the states beyond those strictly required
by the Constitution in order to ensure that individuals can meaningfully
participate in the political process and, thus, prevent the states
from acting unconstitutionally.73
This same principle applies when Title II is used
to guarantee access to judicial proceedings. Popovich found that
preventing a person with a disability from meaningfully participating
in a child custody hearing was a violation of the Due Process Clause.74
Even if denial of access to a judicial proceeding on the basis of
disability were not a constitutional violation itself, it can lead
to constitutional violations by preventing persons with disabilities
from asserting their rights and participating meaningfully in a
process that affects their fundamental interests.
The principle of openness is underscored in the Court's
comments on the importance of access. As the Court found in Faretta,
the accused's right to be present in court proceedings is "essential
to due process of law in a fair adversary process." 75
Likewise, the Court has deemed the right of non-participants to
attend trial proceedings as "essential to the proper functioning
of the criminal justice system." 76
D. Record of State Constitutional Violations
The majority in Garrett found that the record of constitutional
violations by the states was inadequate to support the Title I damages
remedy. The majority stressed the absence of congressional findings
of discrimination in employment and concluded that there were only
six examples of employment-related discrimination in the legislative
history.77 In his dissent, Justice Breyer argued that
there was a sufficient history of violations by the states and pointed
to "roughly 300 examples of discrimination by state governments
themselves in the legislative record [of the ADA]." 78
While discounting the relevance of these examples as a basis for
the Title I damages remedy, the majority noted that these examples
pertained to the provision of public services and accommodations.79
Thus, the majority in Garrett felt that the legislative history
was more relevant to abrogation of sovereign immunity under Title
II than under Title I.
In fact, the legislative history of the ADA shows
a long history of discrimination by the states in benefits and services.
This is particularly true with regard to providing physical access
to facilities. Many discriminatory actions on the part of states
actually prevented access to judicial proceedings, voting booths,
and other government facilities, thereby threatening fundamental
interests protected by the Constitution. This record was before
Congress when it enacted the ADA.80 Thus, there is ample
basis for the Court to conclude that there has been an extensive
history of states violating the constitutional rights of persons
with disabilities and that this record justifies abrogation of the
states' immunity and the imposition of a damages remedy.
VI. Approaches of the Courts of Appeals
The courts of appeals have taken very different approaches
in determining when Congress may abrogate the states' sovereign
immunity under Title II. There have been five different approaches:
- The Fourth, Fifth, Seventh, Eighth, and Tenth Circuits
have struck down abrogation under Title II as an unconstitutional
use of Section 5 enforcement power.81
- The Ninth Circuit has upheld abrogation in Title
II cases without noting any limitations.82
- The Second Circuit has upheld abrogation in Title
II cases if the state's action was taken with "discriminatory
animus or ill will toward the disabled." 83
- The Sixth Circuit has upheld abrogation if a Title
II claim is based on enforcing rights protected by the Due Process
Clause but not the Equal Protection Clause.84
- A panel of the First Circuit upheld Title II abrogation
where the claimant asserts a specific violation of a constitutional
right.85
The deep disagreement among the courts of appeals
has resulted from two factors: 1) the complex three-step abrogation
analysis announced by the Court raises a series of difficult questions
about when the requirements for abrogation are met; and 2) the broad
scope of Title II means that courts must decide how to apply this
analysis to a wide variety of situations, which implicate different
constitutional provisions. The courts of appeals have differed about
how to address these factors. In addition to disagreeing about how
to apply the Court's basic abrogation analysis, the courts of appeals
have differed about whether the determination of Congress' power to
abrogate immunity should be made for Title II "overall"
or only for certain types of applications of Title II. A.
Courts Finding No Abrogation
The courts, which have found that Congress did not
have the power to create a damages remedy under Title II, have analyzed
Title II in much the same way as the Supreme Court analyzed Title
I in Garrett. In Wessel v. Glendening, the Fourth Circuit considered
a case brought by a prison inmate denied work opportunities because
of his disability. The court found that Congress had acted on the
basis of an inadequate record and had imposed a remedy that was
not congruent or proportional to the identified constitutional violation.
The court further found that Title II imposed a duty to accommodate
that exceeded constitutional requirements, in that "it makes
unlawful a range of alternative responses that would be reasonable
but would fall short of imposing an undue burden upon the employer."
86 The opinion also noted that the ADA makes it the employer's
duty to prove that it would suffer such a burden, instead of placing
the burden of proof on the complaining party as the Constitution
requires.
The Fifth Circuit in Reickenbacker v. Foster similarly
found the legislative record to be inadequate and concluded that
much of the record described discrimination by localities rather
than state governments. Further, the court found that many of the
examples in the record described facially neutral state policies
unlikely to represent violations of the Equal Protection Clause.
The court cited with approval the Tenth Circuit opinion in Thompson,
which found that "apathetic attitudes and refusals to make
accommodations do not usually violate the Fourteenth Amendment."
87 Finally, the court echoed the opinions in Thompson
and Wessel when it found that Title II imposed an accommodation
obligation on the states that exceeded constitutional requirements.
The Seventh Circuit in Walker v. Snyder and the Eighth Circuit in
Randolph v. Rogers held abrogation invalid under Title II on similar
grounds. All these courts appeared to strike down the damages remedy
for all applications of Title II.88
B. Cases Upholding Abrogation
The courts of appeals that have upheld abrogation
have recognized that Title II presents different issues from those
raised by Title I. For example, as we discussed in Part IV, many
applications of Title II simply enforce recognized constitutional
protections and do not go beyond constitutional requirements. If
a Title II claimant seeks damages because the state violated the
Eighth Amendment prohibition of cruel and unusual punishment, he
is invoking the Title II remedy for an established constitutional
violation. In that situation, a panel of the First Circuit held
that there is no need to rely on the legislative record amassed
by the Congress.89 Implicit in this perspective is the
idea that examining the legislative record that was before Congress
when it created a remedy against the States represents a safeguard
to ensure that Congress has an adequate basis for imposing obligations
beyond constitutional requirements. This safeguard is not necessary
when Congress simply enforces the Constitution.
A somewhat similar approach was taken by the Second
Circuit in Garcia. When a state discriminates against people with
disabilities because of ill feelings, or animus, its actions are
irrational and violate the Equal Protection Clause, the Due Process
Clause or both. A remedy for that kind of irrational discrimination
does not go "beyond" constitutional requirements. On this
basis, the Second Circuit in Garcia upheld the damages remedy if
the government's action was undertaken with "discriminatory
animus or ill will towards the disabled." Only then, the court
concluded, does Title II stay within the limits of the actions proscribed
under the Fourteenth Amendment.90
In Lane and Popovich, the Sixth Circuit took yet another
approach. It held that abrogation is invalid for claims enforcing
the right to equal protection, but valid for claims enforcing due
process rights. The Sixth Circuit reasoned that Garrett ruled out
abrogation for Equal Protection claims, which trigger only rational
basis review. However, Garrett did not preclude a damages remedy
for claims based on the Due Process Clause, which imposes a greater
burden on the state to justify its policies. Thus, if the claimant
alleges that the state denied access to vote, or access to a judicial
proceeding, actions that are subject to stricter review, the Title
II damages remedy is not foreclosed by the Court's reasoning in
Garrett.
Under the approaches taken in Kiman, Popovich, Lane,
and Garcia, the Title II damage remedy can be applied in some situations
where there is a violation of Title II, but not all. Only the Ninth
Circuit appears to have taken the position that the Title II damage
remedy is enforceable whenever there is a Title II violation.
C. Comment and Analysis
The traditional approach to assessing the constitutionality
of a statute is to consider a particular application of the statute,
rather than the statute "on its face." If a statute can
be applied constitutionally, then the Court has indicated that the
statute will be upheld as applied even if other applications of
the statute are unconstitutional.91 For example, if a
state requires a filing fee for persons who seek a divorce, but
the fee is unconstitutional as applied to poor persons, a court
will strike down the statute as applied to the poor. The statute
remains effective when applied to others.92 However,
the Court in Garrett and Kimel did not take this "as applied"
approach. Instead, it appeared to strike down all applications of
the damages remedy against the states.93
In contrast, Title II does not lend itself to an "all
or nothing" abrogation analysis because it can be applied in
many different situations, invoking different constitutional rights.
It is not possible to conclude in any meaningful way that "most"
applications of Title II would or would not enforce recognized constitutional
rights, or would or would not apply to discrimination that is subject
to heightened scrutiny. Instead, the Court's determination of "congruent
and proportional" remedies can be applied in a sensible way
only if the Court focuses on particular categories of Title II cases.
Most of the courts of appeals that have upheld abrogation
identified categories of Title II cases where they felt the "congruent
and proportional" test could more easily be met. Yet, these
opinions (with the possible exception of the Ninth Circuit in Hason)
also imposed overbroad limitations on when the damages remedy can
constitutionally be applied. Each of them precluded the application
of the damages remedy in some cases where there is a clear constitutional
violation or the state has engaged in conduct that threatens a constitutional
violation and is, therefore, "reasonably prophylactic."
Garrett and the other recent abrogation cases require
that a damages remedy against the states be limited to cases when
it is "congruent and proportional" to the states' violations.
The second step in the Court's three-part analysis for abrogation
requires an examination of the record of constitutional violations
by the states. Given the extensive history of discrimination by
the states in providing benefits and services, however, the Court
has ample basis for upholding the damages remedy under Title II
whenever the remedy is based on a recognized constitutional violation,
or an obligation that is "reasonably prophylactic" in
preventing recognized constitutional violations. Whenever those
standards are met, there should be no need to review the legislative
record regarding particular kinds of constitutional violations in
certain areas, such as denials of the right to vote or limitations
on access to facilities. Given the states history, the fact that
the Title II remedy is being applied to enforce a recognized constitutional
violation or a "reasonably prophylactic" requirement,
should be sufficient to establish that the remedy is "congruent
and proportional." Requiring that plaintiffs establish in each
case that the states have engaged in a history of constitutional
violations in particular areas, e.g., voting, educational benefits,
places an undue limitation on Congress' power to structure remedies.
Moreover, requiring this type of analysis in each case would create
significant uncertainty about the reach of the Title II remedy and
introduce unnecessary complexity into many Title II proceedings.
Requiring that plaintiffs show that their claim is
based on a recognized constitutional violation or a "reasonably
prophylactic" requirement will require at least some analysis
of the rights at issue in each case.94 This test can
be met for virtually all applications of Title II. However, the
Court in Lane need not decide the scope of abrogation under Title
II if it decides that abrogation is valid in at least some cases.
The narrow question in Lane is whether the plaintiffs have alleged
that the state denied their constitutional rights or violated a
congressionally imposed obligation that is "reasonably prophylactic"
in enforcing those rights. As discussed in Part VII, plaintiffs'
allegations do meet that standard and they should be able to recover
damages if the allegations are proven.
VII. The Specific Rights at Issue in Lane
As discussed in Part V, the Court should uphold the
Title II damages remedy whenever it is applied to enforce established
constitutional rights or obligations that are "reasonably prophylactic"
in enforcing those rights. George Lane was denied physical access
to a criminal trial in which he was a defendant. He was also denied
the right to a public judicial proceeding. Beverly Jones was denied
the ability to work as a court reporter in many Tennessee counties
because she was not provided physical access to courtrooms. Both
plaintiffs allege conduct by the state that entitles them to damages
under this standard.
The Court has recognized, in a variety of contexts,
a right of meaningful participation in judicial proceedings based
on the Due Process Clause, including the right to be present as
a criminal defendant, the right to assistance from the state in
order to meaningfully participate in a proceeding and the right
to a public proceeding. In addition, the Court has held that the
Equal Protection Clause requires that meaningful participation in
judicial proceedings not be denied because of a litigant's poverty
or other constitutionally irrelevant factors. Lane is invoking Title
II to enforce all these rights. The Court has also held that the
Due Process Clause provides a right of public access to judicial
proceedings. Both Lane and Jones can invoke this right as well.
Finally, requiring the states to provide access is a "reasonably
prophylactic" means to ensure that their constitutional rights
or the rights of others are respected.
A. Right to Meaningful Participation in Judicial Proceedings
The Court has decided a number of cases that, taken
together, stand for the proposition that parties should be able
to participate meaningfully in a judicial proceeding. This right
extends not only to physical access, but to other state policies
that effectively deny persons the ability to pursue their rights.
For example, the Court has long held that a defendant has a right
to be present at a criminal trial.95 In Faretta, Justice
Stewart wrote for the majority that "it is now accepted that
… an accused has a right to be present at all stages of the
trial where his absence might frustrate the fairness of the proceedings."
96 States must provide indigent defendants with trial
counsel, free transcripts, and counsel for the first level of appeal.97
Similarly, the Court has held that the Equal Protection Clause requires
not simply free transcripts and appointed counsel, but also vigorous
advocacy.98 These cases did not specifically involve
physical access for persons with disabilities, but they suggest
a broad right to meaningful participation in a judicial proceeding
that includes physical access.
The right to meaningful participation extends beyond
criminal proceedings. The court of appeals in Lane found that "parties
in civil litigation have an analogous due process right to be present
in the courtroom and to meaningfully participate in the process
unless their exclusion furthers important governmental interests."
99 In the context of child custody hearings states must
provide indigent parents with court-appointed counsel100
and with trial records necessary for the proper consideration of
appeals challenging termination of their parental authority.101
The Court has also recognized that individuals cannot be foreclosed
from divorce proceedings because of income.102 The significance
of these cases is not limited to a denial of meaningful participation
based on income. They suggest that persons should not be foreclosed
from meaningful participation in judicial proceedings based on an
irrelevant factor that is beyond their control.
B. Denial of Meaningful Participation Because of Disability
Disability, like indigence, should not prevent meaningful
participation in a judicial proceeding. Both are irrelevant to the
merits of the case. Nonetheless, both factors may have a decisive
impact on the proceedings: indigence on the ability to obtain counsel
or other essential support and disability on the ability to offer
testimony and provide in-court suggestions to counsel.103
The Supreme Court has never addressed whether the denial of access
to a judicial proceeding on account of disability violates the Equal
Protection or Due Process Clauses. However, it is well established
that the Due Process Clause requires states to balance the burdens
on the state against the fundamental interests of individuals in
participating meaningfully in administrative and judicial proceedings
that significantly affect their interests.104 While cost
to the state is a consideration, it is not the determining factor.
The state must balance the added burden of a procedural protection
against the interests of the parties to the proceeding.105
The balancing required under the Due Process Clause
is a more demanding standard than rational basis review, which allows
states to justify their policies based on savings in resources.
In some cases, the states must spend resources to protect the fundamental
interests of persons who may be prevented from participating meaningfully
in a judicial proceeding. In Popovich, the Sixth Circuit found that
the state was required to balance the interests of a person who
is deaf against the burden on the state and to ensure that the person
could meaningfully participate in a child custody hearing.106
Similarly, the Sixth Circuit in Lane concluded that "Congress
may require the states to consider the nature of the constitutional
right at issue, the often relatively small cost of compliance, and
the effect of failure to accommodate those with disabilities."
107
Tennessee forced George Lane to remain on the ground
floor of the Polk County Courthouse while his hearing proceeded
without him in a second-floor courtroom. Though his attorney shuttled
between the ground and second floor during the proceeding, Lane's
ability to provide advice or suggestion to his counsel was impaired,
and his ability to conduct the proceeding himself if necessary was
all but impossible. Lane's interest in meaningful participation
in a criminal trial was effectively precluded by the state's failure
to provide physical access to the courtroom. The state was constitutionally
required to balance the burden of finding an accessible hearing
room with the fundamental interests at stake for Lane and to take
steps to ensure that he had physical access to it.
C. Right to a Public Trial
Tennessee's violation of Title II also effectively
denied George Lane's Sixth Amendment right to a public trial. After
his arrest for failure to appear, Lane had to submit to proceedings
in a ground-floor room that was closed to the public. A criminal
defendant's Sixth Amendment right to a public trial is a close corollary
of the public's First Amendment right to attend them. Underlying
both is the notion that open courts help secure the fairness of
judicial proceedings. In several cases, the Court upheld the right
of the press and public to attend a criminal trial.108
The Justices in Waller v. Georgia concluded that the rights of the
accused under the Sixth Amendment are no less protective of a public
trial than the First Amendment rights of the press and public.109
Accordingly, under Waller, any closure of a suppression hearing
over the objections of the accused must overcome the same test articulated
in Press-Enterprise I110. The Waller Court recognized
that public trials help ensure that the judge and prosecutors carry
out their duties responsibly, that witnesses come forward, and that
testimony is honest.111
D. Right of the Public to Attend Court Proceedings
The inaccessibility of Tennessee's courtroom also
interfered with Beverly Jones' right, as a member of the public,
to attend criminal proceedings. A unanimous Court found in Richmond
Newspapers that the public has a First Amendment right of access
to criminal trials -- a right applied to the states through the
Fourteenth Amendment.112 Since Richmond, the Court has
extended the right of access to jury selections and preliminary
hearings.113 In summarizing its prior holdings, the Court
in Press-Enterprise I found that open criminal proceedings enhance
the "basic fairness of the criminal justice trial" and
the "appearance of fairness so essential to public confidence."
114 Further, the knowledge that anyone is free to attend
proceedings assures the public that the courts' procedures conform
to established standards, and that any serious deviations will become
known. As such, closures of criminal proceedings are subject to
strict scrutiny. The party seeking to close the hearing must advance
an overriding interest likely to be prejudiced, the closure must
be no broader than necessary to protect that interest, the trial
court must consider reasonable alternatives to closing the proceeding,
and it must make findings adequate to support the closure.115
E. Reasonably Prophylactic Legislation
Even if Title II's obligation to require that Lane
and Jones be provided access to Tennessee courtrooms were not required
by the Constitution itself, the requirement is "reasonably
prophylactic" to the enforcement of recognized constitutional
rights. As we have discussed, Congress can validly prohibit otherwise
constitutional conduct if it is necessary to remedy or prevent constitutional
violations.116 While the Court has indicated that it
will review carefully the prophylactic use of Section 5, Congress'
judgment in identifying appropriate remedies is entitled to significant
deference.117
There are two reasons why the access requirement,
as applied in the case of these two plaintiffs, is within the "somewhat
broader swath of conduct" that can be prohibited under Section
5. First, Congress can require states to provide access to ensure
that the rights of a criminal defendant with a disability are not
violated during a proceeding because of his inability to monitor
the proceedings and object. In other words, even if access itself
is not constitutionally required, Congress can make a judgment that
the state must provide access to make sure that a criminal defendant's
constitutional rights are not violated during a proceeding on account
of his absence.118 As the Sixth Circuit found in Popovich,
failure to ensure that a person who is deaf could participate in
a child custody proceeding "will make it impossible for him
to refute claims made against him, or to offer evidence on his own
behalf." 119
Second, the cases discussed above show that there
are many instances where a right of meaningful participation in
a judicial proceeding is required by the Due Process or Equal Protection
Clause. Congress may decide to identify a somewhat broader category
of persons entitled to enforce this right in order to ensure that
the remedial scheme is workable and enforceable. For example, even
if Beverly Jones could not claim a constitutional right to physical
access in order to be employed as a court reporter, a juror, judge,
or witness with a disability should be able to assert a constitutional
claim to physical access.120 A remedial scheme that sweeps
in some situations that are not strictly based on constitutional
rights makes it more likely that the remedial requirements will
be enforced and provides clearer guidance to the public and the
states as to when access is required.
Congress must have some discretion to decide how such
remedial schemes will be structured.121 The Court in
Boerne reaffirmed the principle that Congress should be afforded
latitude in crafting prophylactic legislation. As the Court stated,
"the line between measures that remedy or prevent unconstitutional
actions and measures that make a substantive change in the governing
law is not easy to discern." 122
The Court followed this principle in South Carolina
v. Katzenbach, when it allowed Congress latitude in identifying
localities as targets for voting rights remedies.123
The legislation at issue in that case was the Voting Rights Act
of 1965, which, among other things, contained remedial provisions
that 1) suspended literacy and other voting tests, and 2) suspended
all new voting regulations, subject to the review of federal officials.
Section 4(b) of the Act applied these provisions to states and localities
according to a coverage formula. The formula identified states and
localities for the remedial provisions based on two factors: the
existence of voter tests and a below-average voter turnout in the
1964 presidential election. The Court found that the formula recommended
remedial action for states that had not shown a history of voter
discrimination. Nonetheless, the Court deemed such overbreadth permissible,
at least in the absence of proof that those states had been free
of substantial voting discrimination in recent years. In so reasoning,
the Court noted that Congress is "clearly not bound by the
rules relating to statutory presumptions in criminal cases when
it prescribes civil remedies against other organs of government."
124 The Court emphasized that Congress should be granted
some leeway in crafting remedies.125 Notably, the Court
in Garrett identified the Voting Rights Act as the model of permissible
enactment under Section 5 of the Fourteenth Amendment.126
VIII. Conclusion
Much is at stake in Lane. The courts of appeals are
deeply divided about the constitutionality of the damages remedy
under Title II and about the basic question of whether the power
of Congress to abrogate sovereign immunity should be determined
for Title II overall or only for certain applications. If the Supreme
Court upholds the Title II damages remedy, it is possible that it
will do so only for certain applications of Title II. In that case,
it will presumably provide some guidance as to how to identify these
applications. Limiting the Title II remedy to recognized constitutional
violations or to violations based on the Due Process Clause would
impose arbitrary limitations on the reach of the remedy because
it would exclude situations where Congress was well within its power
to legislate under Section 5 of the Fourteenth Amendment, and where
the states have demonstrated a record of constitutional violations.
The Lane case presents the kinds of situations Congress
had in mind when it passed the ADA. Few cases are more compelling
than a defendant with a disability who must have access to the courtroom
if he is to participate meaningfully in a trial. It is no answer
that Lane could have been carried up the stairs. The constitutional
guarantee of physical access does not require that persons be subjected
to such indignity or risk of personal injury in order to exercise
it. Beverly Jones' case is perhaps more complex because her interest
is in employment rather than protecting her interests in a judicial
proceeding. However, she is protected by the right of public access;
and, by allowing her to invoke the Title II remedy, Congress ensures
that the rights of others are protected as well. Whether Lane and
Jones' claims are viewed as enforcing established constitutional
rights or enforcing "reasonably prophylactic" obligations
placed on the states by Congress, they should be entitled to seek
damages without the barrier of sovereign immunity standing in the
way.
Finally, refusing to find that Title II validly abrogates
the states' sovereign immunity would further restrict Congress'
authority to protect persons with disabilities from discrimination
by the states. Not only would such a ruling weaken the effectiveness
of Title II by eliminating the ability of plaintiffs to obtain damages
against the states, it would eliminate one of the fundamental bases
of congressional power to require the states to provide access to
public facilities. It is true that there are two other possible
sources of congressional power to require access - Section 504 of
the Rehabilitation Act, based on the Spending Clause, and injunctive
actions against state officials based on the Commerce Clause. But,
as we have seen, these sources of congressional power are also under
attack and subject to many of the same theoretical debates about
the federalism framework that have deeply divided the current Court.
Thus, the result in Lane could have implications far beyond the
damages remedy and even beyond Title II itself.
Acknowledgment
The National Council on Disability wishes to express
its appreciation to Edward Correia, Michael Golden, Caroline Middleton,
and Ryan Weinstein of Latham & Watkins for drafting this document.
--------------------------------------------------------------------------------
Endnotes
1 Lane v. Tennessee, 315 F.3d 680 (6th Cir. 2003),
cert. granted, 156 L. Ed. 2d 626 (2003).
2 Board of Trustees of the University of Alabama v.
Garrett , 531 U.S. 356 (2001).
3 Medical Board of California v. Hason, 279 F.3d 1167
(9th Cir. 2002), cert. granted, 123 S. Ct. 561 (2002), cert. dismissed,
123 S. Ct. 1779 (2003).
4 42 U.S.C. § 12132 (2003). Title II also includes
a number of provisions specifically focused on defining and eliminating
discrimination against disabled individuals in the public transportation
context. 42 U.S.C. §§ 12141-65 (2003).
5 See, e.g., Rust v. Western State Hospital (D. Wash.
2000) (ending unnecessary institutionalization); Lovedy v. Tennessee
Dept. of Environment and Conservation, (eliminating barriers to
access to state parkland); Doe v. Alabama Department of Public Safety,
(M.D. Ala) (requiring state department of motor vehicles to establish
new standard guaranteeing disabled individuals a fair opportunity
to obtain driver’s licenses); William Reid v. Cook County
Circuit Court, Cook County Sheriffs Department and Michael F. Sheahan,
Cook County Sheriff, Individually and in his Official Capacity,
No. 99 C 1953 (N.D. Ill.) (ensuring that state police and state
prisons can communicate with disabled individuals); Jane Roe v.
Nevada State Board of Nursing, et al., U.S. Dist. Ct. # CV-S-98-1152
(ensuring that disabled individuals have a fair opportunity to obtain
licenses to practice their professions); Beyer v. State of Hawaii,
et al., No. 99-00043 SOM (D. Hawaii) (preventing application of
state law that would unnecessarily prevent disabled individuals
from possessing service animals); (McKay et al. v. Pulaski County
Commission et al. DC Ark., No. LR-C-93-558. (protecting disabled
individuals’ fundamental right to secret ballot); Mental Health
Association of Southeastern Pennsylvania v. Borough of Darby, Civil
Action No. 00-CV-253 (E.D. Pa.) (preventing application of zoning
laws that discriminate against the disabled).
6 Congress may require the states to provide attorneys’
fees without abrogating sovereign immunity. Hutto v. Finney, 437
U.S. 678, 695 n.24 (1978). Thus, the attorneys’ fees provisions
are not subject to being overturned in Lane.
7 See, e.g., Julie Davies, Federal Civil Rights Practice
in the 1990’s: the Dichotomy Between Reality and Theory, 48
Hast. L. J. 197, 265-66 (Jan. 1997) (recognizing that civil rights
cases do not attract representation when the applicable damages
remedy is inadequate and citing attorney study concluding that “plaintiffs
with low damages are not as likely to get representation, even for
meritorious claims, as plaintiffs with high damages”).
8 Rehabilitation Act of 1973, Pub. L. No. 93-112,
§504, 87 Stat. 355, 394 (1973).
9 See 42 U.S.C. 2000d-7 (2003) (regarding waiver of
immunity where a state accepted funds under the Rehabilitation Act)
10 See Garrett, 531 U.S. at 374 n.9 (asserting that
“state laws protecting the rights of persons with disabilities
in employment and other aspects of life provide independent avenues
of redress”).
11 Ruth Colker and Adam Milani, The Post-Garrett World:
Insufficient State Protection, 53 Ala. L. Rev. 1075, 1083 (2002).
12 Ex Parte Young, 209 U.S. 123 (1908).
13 See Part IV.
14 For example, in Garcia v. San Antonio Metropolitan
Transit Authority, 469 U.S. 528 (1985), the Court said Congress
can regulate the states as long as the activities regulated substantially
affect interstate commerce.
15 See United States v. Lopez, 514 U.S. 549 (1995);
United States v. Morrison, 529 U.S. 598 (2000).
16 134 U.S. 1 (1890).
17 Pennsylvania v. Union Gas, 491 U.S. 1 (1989).
18 Seminole Tribe of Florida v. Florida, 517 U.S.
44 (1996).
19 527 U.S. 706 (1999).
20 Ex Parte Young, 209 U.S. 123 (1908).
21 Pennhurst State School v. Halderman, 451 U.S. 1
(1981).
22 Steward Machine Co. v. Davis, 301 U.S. 548 (1937).
23 South Dakota v. Dole, 483 U.S. 203 (1987).
24 See, e.g., Garcia v. S.U.N.Y. Health Science Center
of Brooklyn, 280 F.3d 98 (2d Cir. 2001); Pace v. Bogalusa City Sch.
Bd., 325 F.3d 609 (5th Cir. 2003), reh’g en banc granted,
2003 U.S. App. LEXIS 14621 (2003); Johnson v. La. Dep’t of
Educ., 330 F.3d 362 (5th Cir. 2003).
25 See Garrett, 531 U.S. at 364; Kimel v. Florida
Bd. of Regents, 528 U.S. 62, 80 (2000).
26 42 U.S.C. § 12202 (2003) (“A State shall
not be immune under the eleventh amendment to the Constitution of
the United States from an action in [a] Federal or State court of
competent jurisdiction for a violation of this chapter”).
27 Section 5 of the Fourteenth Amendment gives Congress
power to enact prophylactic and remedial legislation to enforce
Section 1. Kimel, 528 U.S. at 88.
28 Kimel, 528 U.S. at 81.
29 Id. at 88.
30 384 U.S. 641 (1966).
31 400 U.S. 112 (1970) (striking down a congressional
statute lowering the voting age in state elections).
32 521 U.S. 507 (1997).
33 City of Boerne, 521 U.S. at 532.
34 “[T]he line between measures that remedy
or prevent unconstitutional actions and measures that make a substantive
change in the governing law is not easy to discern, and Congress
must have wide latitude in determining where it lies.” City
of Boerne, 521 U.S. at 508.
35 Id. at 520.
36 Id. at 532.
37 527 U.S. 627 (1999).
38 528 U.S. 62 (2000).
39 The Court had earlier held that the Act was a constitutional
exercise of Congress’ power under the Commerce Clause in EEOC
v. Wyoming, 460 U.S. 226 (1983). However, Seminole Tribe limited
that holding, finding that Congress lacked the power under the Commerce
Clause to authorize damage remedies in private employment actions
against the states.
40 Id. at 91.
41 Garrett, 531 U.S. at 365-72.
42 See United States v. Virginia, 518 U.S. 515, 532-33
(1996) (states must provide an “exceedingly persuasive”
justification for gender-based classifications); City of Richmond
v. J.A. Croson, 488 U.S. 469, 493 (1989) (any racial classification
is subject to strict scrutiny.) City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 446 (1985) (disability classifications are subject
to rational basis review).
43 See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)
(upholding abrogation under Title VII); Nev. Dep’t of Human
Resources v. Hibbs, 123 S. Ct. 1972 (2003) (upholding abrogation
under the Family and Medical Leave Act).
44 Justice Breyer included with his dissent a lengthly
appendix listing examples of discriminatory laws and actions by
the states. However, the Court found that Justice Breyer’s
Appendix did not indicate a pattern of unconstitutional state discrimination
in employment against persons with disabilities. The Court rejected
the Appendix as evidence of a pattern of state discrimination in
employment because the Appendix “consists not of legislative
findings, but of unexamined, anecdotal accounts of adverse, disparate
treatment by state officials... [and] adverse, disparate treatment
often does not amount to a constitutional violation where rational-basis
scrutiny applies.” Garrett, 531 U.S. at 370. The Court also
rejected the Appendix because “had Congress truly understood
this information [in the Appendix] as reflecting a pattern of unconstitutional
behavior by the States, one would expect some mention of that conclusion
in the Act’s legislative findings.” Id. at 371.
45 Id. at 372.
46 123 S. Ct. 1972 (2003).
47 See supra note 42.
48 Id. at 1983.
49 See Kimel, 528 U.S. at 88.
50 For example, the Sixth Circuit in Popovich v. Cuyahoga
County, 276 F.3d 808, 815 (6th Cir. 2002) concluded that Congress
could create a damages remedy under Title II for claims based on
the Due Process Clause. We discuss the approach of the courts of
appeals below in Part VI.
51 This prohibition is implicit in Title II’s
basic prohibition of discrimination. See 42 U.S.C. § 12132
(“… no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in
or be denied the benefits of the services, programs, or activities
of a public entity, or be subjected to discrimination by any such
entity”).
52 See, e.g., Wessel v. Glendening, 306 F.3d 203,
210 (4th Cir. 2002) (concluding that Title II protects disabled
individuals’ “constitutional right not to be subject
to arbitrary or irrational exclusion from the services, programs,
or benefits provided by the states”); Hason v. Medical Board
of California, 279 F.3d 1167, 1172-73 (9th Cir. 2002).
53 See, e.g., Thomas ex rel. Thomas v. Davidson Academy,
846 F. Supp. 611, 620 (M.D. Tenn. 1994) (granting preliminary injunction
preventing school from expelling student because she exercised her
rights under the ADA).
54 See, e.g., Doe v. Rowe, 156 F. Supp. 2d 35, 51-59
(D. Me. 2001) (constitutional bar preventing voting by mentally
ill persons violates Title II, procedural due process and the Equal
Protection Clause)
55 See, e.g., O’Connor v. Donaldson, 422 U.S.
563, 575-76 (1975) (involuntary and unnecessary commitment to a
mental hospital of a non-dangerous, mental patient is a denial of
due process).
56 See Olmstead v. Zimring, 527 U.S. 581, 600, 607
(1999) (holding that Title II prohibits unjustified institutional
isolation of disabled individuals).
57 See, e.g., Estelle v. Gamble, 429 U.S. 97, 103-05
(1976) (recognizing inmate’s constitutional right to medical
care under the Eighth Amendment).
58 See Kiman, 301 F.3d at 24-25 (holding allegations
that prison officials were deliberately indifferent to unique health
and safety concerns arising from plaintiff’s disability sufficient
to state a constitutional violation such that Kiman could proceed
with his Title II claim for a remedy). Title II could have been
used to protect disabled individuals’ Eighth Amendment rights
in numerous other cases. See, e.g., Weeks v. Chaboudy, 984 F.2d
185, 187, 190 (6th Cir. 1993) (holding that prison medical director
violated Eighth Amendment proscription against cruel and unusual
punishment when he failed to provide paraplegic inmate with wheelchair);
LaFaut v. Smith, 834 F.2d 389, 392-94 (4th Cir. 1987) (concluding
that prison officials violated Eighth Amendment when they denied
paraplegic inmate adequate toilet facilities for three months and
necessary physical therapy).
59 See, e.g., Popovich, 276 F.3d at 815 (finding for
a hearing impaired man in a Title II action against a state court
that failed to provide adequate hearing assistance).
60 Disability-related discrimination passes constitutional
muster even if it is “probably not true” that Congress’
reasons for passing the legislation are “valid in the majority
of cases.” Kimel, 528 U.S. at 86.
61 See supra note 42.
62 City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 446 (1985). In this case, the city of Cleburne, Texas, denied
a special use permit to a group home for people with intellectual
disabilities. The Court found that people with intellectual disabilities
did not hold a quasi-suspect status entitled to heightened scrutiny,
but nonetheless invalidated the city’s action under a rationality
review standard. Many observers have concluded that the Court was
not actually applying conventional rationality basis review.
63 Id. at 448.
64 See Garrett, at 367, stating “the result
of Cleburne is that States are not required by the Fourteenth Amendment
to make special accommodations for the disabled, so long as their
actions toward such individuals are rational.”
65 Id. at 464 (Marshall, J., dissenting.)
66 Nev. Dep’t of Human Resources v. Hibbs, 123
S. Ct. 1972 (2003).
67 Id.
68 See Popovich, 276 F.3d at 811-13; see also Faretta
v. California, 422 U.S. 806 (1975) (right of a criminal defendant
to be present at trial); Press-Enterprise Co. v. Superior Court,
464 U.S. 501 (1984) (right of the public to attend trials); Harper
v. Virginia State Board of Elections, 383 U.S. 663 (1966) (right
to vote); BE&K Constr. Co. v. NLRB, 536 U.S. 516 (2002) (right
of citizens to petition government through “access to the
courts.”)
69 Garrett, 531 U.S. at 372.
70 Kiman v. N.H. Dep’t of Corrections, 301 F.3d
13 (1st Cir. 2002), vacated, 310 F.3d 785 (2002).
71 Kimel, 528 U.S. at 88.
72 See, e.g., New York v. County of Delaware, 2000
WL 1264302, at 1 (N.D.N.Y.) (ordering improved access for disabled
individuals under the ADA when evidence showed that in two New York
counties all polling places but one were inaccessible to persons
with disabilities).
73 South Carolina v. Katzenbach, 383 U.S. 301 (1966);
Rome v. United States, 446 U.S. 156 (1980).
74 263 F.3d at 815.
75 Faretta, 422 U.S. at 819 n.15.
76 Press-Enterprise Co. v. Superior Court, 478 U.S.
1, 12 (1986).
77 531 U.S. at 369.
78 Id. at 379.
79 Id. at 369.
80 The legislative history contained numerous examples
of individuals unable to attend court hearings or denied access
to other government facilities. See, e.g., Americans with Disabilities
Act, Joint Hearing on H.R. 4498 and S. 2345 Before the Subcommittee
on Select Education and the Subcommittee on the Handicapped, 101st
Cong., 2d Sess. (1988) (testimony of Sandra Parrino) (refusal of
states to build accessible public facilities, including town halls);
Americans with Disabilities Act, Joint Hearing on H.R. 4498 Before
the Subcommittee on Select Education, 101st Cong., 2d Sess. (1989)
(statement of Emeka Nwojke) (concerning inaccessibility of court
houses and court rooms); S. Rep. No. 116, at 7 (1989) (“When
I was 5 my mother proudly pushed my wheelchair to our local public
school, where I was promptly refused admission because the principal
ruled that I was a fire hazard”); S. Rep. No. 116, at 12 (1989)
(many persons with disabilities “cannot exercise one of your
most basic rights as an American” because polling places are
frequently inaccessible); H.R. Rep. No. 485, Pt. 2, at 40 (1990)
(town hall and public schools inaccessible); H.R. Rep. No. 485,
Pt. 3, at 50 (1990) (persons with disabilities, such as epilepsy,
are “frequently inappropriately arrested and jailed”
and “deprived of medications while in jail”); see also
Education for All Handicapped Children, 1973-1974: Hearings Before
the Subcomm. on the Handicapped of the Senate Comm. On Labor &
Pub. Welfare, 93d Cong., 1st Sess. 384 (1973) (Peter Hickey) (student
in Vermont was forced to attend classes with students two years
behind him because he could not climb staircase to attend classes
with his peers); Equal Access to Voting for the Elderly and Disabled
Persons: Hearings Before the Task Force on Elections of the House
Comm. on House Admin., 98th Cong., 1st Sess. 94 (1984) (Equal Access
to Voting Hearings); Civil Rights of Institutionalized Persons:
Hearings on S. 1393 Before the Subcomm. on the Const. of the Sen.
Comm. on the Judiciary, 95th Cong., 1st Sess. 127 (1977).
81 See Wessel v. Glendening, 306 F.3d 203 (4th Cir.
2002); Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001); Walker
v. Snyder, 213 F.3d 344 (7th Cir. 2002), cert. denied, 531 U.S.
1190 (2001); Randolph v. Rogers, 253 F.3d 342, 345 n.4 (8th Cir.
2001); Thompson v. Colorado, 278 F.3d 1020 (10th Cir. 2001), cert.
denied, 535 U.S. 1077 (2002).
82 Hason v. Medical Bd., 279 F.3d 1167 (9th Cir. 2002),
cert. granted, 123 S. Ct. 561 (2002), cert. dismissed, 123 S. Ct.
1779 (2003).
83 Garcia v. S.U.N.Y Health Services Ctr., 280 F.3d
98, 111 (2nd Cir. 2001);
84 Popovich v. Cuyahoga County Court of Common Pleas,
276 F.3d 808 (6th Cir. 2002), cert. denied, 123 S. Ct. 72 (2002)
85 Kiman v. N.H. Dep’t of Corrections, 301 F.3d
13 (1st Cir. 2002), vacated, 310 F.3d 785 (2002). The full court
was equally divided and reinstated the district court opinion, dismissing
the complaint. 332 F.3d 29 (1st Cir. 2003). The panel found that
a claimant need not first prove the alleged constitutional violation
in order to proceed with the suit. Id. at 34.
86 306 F.3d at 26.
87 274 F.3d at 982.
88 See, e.g., Thompson v. Colorado, 278 F.3d at 1028
n.4 (holding that it is appropriate to “conduct the abrogation
analysis by considering Title II in its entirety”).
89 Kiman, 301 F.3d at 28.
90 280 F.3d at 112.
91 See, e.g., United States v. Raines, 363 U.S. 17
(1960) ("One to whom application of a statute is constitutional
will not be heard to attack the statute on the ground that impliedly
it might also be taken as applying to other persons or other situations
in which its application might be unconstitutional."); see
also Griffin v. Breckenridge, 403 U.S. 88, 102-07 (1971).
In some areas of the law, a party may argue for a
statue's unconstitutionality even though the statute is not unconstitutional
as applied to the specific facts of the case. The most well-known
example is the First Amendment doctrines of overbreadth and vagueness.
In First Amendment challenges, a speaker whose own speech is unprotected
may escape prosecution by arguing that the statute would also apply
to protected speech. See Broadrick v. Oklahoma, 413 U.S. 601 (1973)
(but noting that because a claim of facial overbreadth, if successful,
is such "strong medicine," the doctrine "has been
employed by the Court sparingly and only as a last resort").
92 See, e.g., Boddie v. Connecticut, 401 U.S. 371
(1971).
93 See Kimel, 528 U.S. at 82-91; Kiman, 301 F.3d at
18.
94 As the panel of the First Circuit in Kiman suggested,
there should be no need for an extensive review of the legislative
history when Title II is used to enforce a recognized constitutional
violation.
95 Faretta v. California, 422 U.S. 806 (1975). Faretta
reaffirmed the defendant’s right to be present at trial first
articulated in Snyder v. Massachusetts, 291 U.S. 97 (1934).
96 Id. at 819 n.15.
97 Griffin v. Illinois, 351 U.S. 12 (1956) (ruling
that Equal Protection required that a free transcript be provided
to indigent defendants if necessary for appeal); Gideon v. Wainright,
372 U.S. 335 (1963) (holding that the Fourteenth Amendment required
states to provide trial counsel to indigent criminal defendants);
Douglas v. California, 372 U.S. 353 (1963) (holding that the Fourteenth
Amendment required states to provide counsel to indigent criminal
defendants on their first appeal as a matter of right.)
98 Evitts v. Lucey, 469 U.S. 387 (1985).
99 315 F.3d at 682.
100 Lassiter v. Dept. of Social Servs., 452 U.S. 18,
30 (1981).
101 M.L.B. v. S.L.J., 519 U.S. 102, 128 (1996).
102 See Boddie v. Connecticut, 401 U.S. 371, 380-81
(1971).
103 See Popovich, 276 F.3d at 815 (“Failure
to accommodate [the plaintiff’s] hearing disability may render
him unable to participate meaningfully in that determination. If
he cannot understand what is happening during the custody hearing,
it will be impossible for him to refute claims made against him,
or to offer evidence on his own behalf.”)
104 See Mathews v. Eldrige, 424 U.S. 319, 334 (1976).
105 See Lassiter, 452 U.S. at 27; Popovich, 276 F.3d
at 814.
106 See, e.g., Popovich, 276 F.3d 808, 815 (6th Cir.
2002) (holding that the “participation” requirement
of Title II protected disabled individuals’ due process right
to a meaningful paternity hearing). The Court of Appeals stated
that: “Based on the Supreme Court cases concerning the process
required in child custody suits, it is clear that Ohio is required
to provide Popovich with some level of hearing assistance, depending
on the degree of his disability….As applied to the case before
us, the “participation” requirement of Title II serves
to protect Popovich’s due process right to a meaningful hearing.”
Id.
107 315 F.3d at 682.
108 Globe Newspaper Co. v. Superior Court for Norfolk
County, 457 U.S. 596 (1982); Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555 (1980).
109 Waller v. Georgia, 467 U.S. 39 (1984)
110 Press-Enterprise Co. v. Superior Court, 464 U.S.
501, 510 (1984) (“Press-Enterprise I”) (noting that
“the presumption of openness may be overcome only by an overriding
interest based on findings that closure is essential to preserve
higher values and is narrowly tailored to serve that interest.”).
111 Id. at 46. ("The requirement of a public
trial is for the benefit of the accused; that the public may see
he is fairly dealt with and not unjustly condemned, and that the
presence of interested spectators may keep his triers keenly alive
to a sense of their responsibility and to the importance of their
functions. . . .").
112 Richmond Newspapers v. Virginia, 448 U.S. 555
(1980).
113 Press-Enterprise Co. v. Superior Court, 464 U.S.
501 (1984) (“Press-Enterprise I”); Press-Enterprise
Co. v. Superior Court, 478 U.S. 1 (1986) (“Press Enterprise
II”).
114 464 U.S. at 501.
115 Press-Enterprise I, 464 U.S. at 510.
116 See Kimel, 528 U.S. at 81 (2000) (finding that
“Congress’ § 5 power is not confined to the enactment
of legislation that merely parrots the precise working of the Fourteenth
Amendment. Rather, Congress’ power ‘to enforce’
the Amendment includes the authority both to remedy and to deter
violation of rights guaranteed thereunder by prohibiting a somewhat
broader swath of conduct, including that which is not forbidden
by the Amendment’s text”).
117 See Kiman, 301 F.3d at 19-20 (citing City of Boerne,
521 U.S. at 519-20) (“While the line between measures that
remedy or prevent unconstitutional actions and measures that make
a substantive change in the governing law is not easy to discern,
and Congress must have wide latitude in determining where it lies,
the distinction exists and must be observed”).
118 See Katzenbach v. Morgan, 384 U.S. 641 (1966)
(“When recognized state violations of federal constitutional
standards have occurred, Congress is of course empowered by §
5 to take appropriate remedial measures to redress and prevent the
wrongs.”) In Katzenbach, the Court upheld a ban on literacy
tests in part on the theory that, even though literacy tests might
not themselves be unconstitutional, barring them helped prevent
discriminatory treatment by the government in providing public services.
119 276 F.3d at 815.
120 See, e.g. Galloway v. Superior Court, 816 F. Supp.
12, 19 (D.D.C. 1993) (concluding that the District of Columbia Superior
Court’s categorical exclusion of blind individuals from jury
service violated the ADA.)
121 Congress’ judgment that there is a pattern
of state discrimination in the provision of public services, and
that such discrimination requires a federal remedy, is entitled
to “a great deal of deference, in as much as Congress is an
institution better equipped to amass and evaluate the vast amounts
of data bearing on such an issue.” Walters v. National Ass’n
of Radiation Survivors, 473 U.S. 305, 331 (1985).
122 City of Boerne, 521 U.S. at 519-20
123 383 U.S. 301, 331-32 (1996).
124 Id. at 330.
125 Id. at 331 (“Legislation need not deal with
all phases of a problem in the same way, so long as the distinctions
drawn have some basis in practical experience.”)
126 531 U.S. at 373-374. |