Case Law Developments Under the ADA After
Tennessee v. Lane
Brian East
Advocacy, Inc.
7800 Shoal Creek Blvd., Ste. 171-E
Austin, TX 78757
Tel: 512/454-4816
Fax: 512/454-3999
E-mail: beast@advocacyinc.org
1. Introduction - "New Federalism" and the Lead-up to Lane
a. Several years after the ADA was passed, the Supreme Court began "restructuring the balance between federal and state powers," limiting Congressional power to pass federal civil rights statutes.
b. There must be a constitutional basis for any federal law, and the ADA is based on the Commerce Clause and the 14th Amendment. In the last decade, the Supreme Court has limited Congressional power under both.
c. Commerce Clause cases - the reach of the Commerce Clause was restricted in U.S. v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), and states have immunity from lawsuits brought under laws based on the Commerce Clause, Seminole Tribe v. Florida, 517 U.S. 44 (1996).
d. Fourteenth Amendment cases:
i. City of Boerne v. Flores, 521 U.S. 507 (1997) - 14th Amendment legislation can waive states' immunity, but it only supports "remedial" legislation, and the remedy has to be "congruent and proportional" to the harm. Without legislative findings establishing a history of state violation of the free exercise clause, the Religious Freedom Restoration Act (RFRA) was not remedial but substantive, and thus was struck down because it gave more protection to religious observance than the Court found constitutionally required.
ii. Florida Prepaid II, 527 U.S. 627 (1999) - although (in contrast to Boerne) there were legislative findings in this case regarding the federal patent infringement law, they were inadequate because the legislative history showed little concern for remedying patent infringement by the states, and there was no "widespread or persistent deprivation of constitutional rights" by the states. The states could not be sued for patent infringement because there was not proportionality between the injury and remedy.
iii. Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000) - the Court held that states are immune from claims under the Age Discrimination in Employment Act (ADEA), reaffirming its "congruence and proportionality" test, and finding that the ADEA was disproportionate to any unconstitutional conduct by state and local governments, for two reasons: (a) not much age-based conduct is unconstitutional because age is given only minimal, "rational relationship" protection; and (b) there was an insufficient showing in the legislative record that age discrimination by the states was such a difficult and intractable problem that it required as broad a statute as the ADEA.
iv. University of Alabama at Birmingham Bd. of Trustees v. Garrett, 531 U.S. 356 (2001) - applying the Boerne test, the Court concluded that ADA Title I was not a valid exercise of Congress' § 5 power because the historical record and the statute's broad sweep suggested that Title I's true aim was not so much enforcement, but an attempt to "rewrite" this Court's Fourteenth Amendment jurisprudence. 531 U.S. at 372-374.
v. Nevada Dept. of Human Resources v. Hibbs, 583 U.S. 721 (2003) - the first case to put limits on the Court's new "states' rights" case law. In a 6-3 opinion by Chief Justice Rehnquist, the Court validated private damage suits against states under the family-care portion of the Family and Medical Leave Act. In his article referenced in ¶ 3.a below, Prof. Waterstone explains that Hibbs represented a departure from previous analysis in certain ways: (a) it relied on the history of discrimination in family leave policies by private and local government employers (not just state employers); (b) it allowed evidence of discrimination in parental leave to supplement evidence of discrimination in family leave, because they are both based on the same gender stereotype (despite that fact that in Garrett, the Court refused to consider evidence of disability discrimination outside of employment, even though it is based on the same stereotypes and misperceptions); (c) it relied on the kind of Congressional testimony previously dismissed as "anecdotal" or "isolated." The Court apparently justified the difference due to different levels of scrutiny.
2. The Decision in Tennessee v. Lane, 541 U.S. 509 (May 17, 2004)
a. The Facts — plaintiffs George Lane and Beverly Jones both had paraplegia and used wheelchairs.
i. Lane - In 1996, after police charged Lane with two misdemeanor offenses, he 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 or 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.
ii. Jones - Jones works as a certified court reporter in Tennessee, and identified 25 counties in Tennessee with courthouses that were inaccessible to her, despite requesting modifications (in four counties).
b. Proceeding below — Plaintiffs filed suit against the state of Tennessee and 25 Tennessee counties alleging that their operation of inaccessible courthouses violated Title II of the ADA. Plaintiffs sought damages and equitable relief. The state filed a motion to dismiss on Eleventh Amendment immunity grounds. The trial court denied the motion, and the 6th Circuit affirmed, relying on its en banc decision in Popovich v. Cuyahoga County Court, 276 F.3d 808 (6th Cir.) (en banc), cert. denied, 537 U.S. 812 (2002), which interpreted Garrett as barring private ADA suits against States based on equal protection principles, but not those relying on due process principles as in this case.
c. Holding — In an opinion by Justice Stevens (in which O'Connor, Souter, Ginsburg, and Breyer joined), the Supreme Court held that as it applies to the class of cases implicating the fundamental right of access to the courts, Title II constitutes a valid exercise of Congress' authority under § 5 of the Fourteenth Amendment to abrogate the states' immunity. For links to the opinions, the oral argument, and all the briefing in the case, see the Bazelon Center's website at http://www.bazelon.org/issues/disabilityrights/lane/.
d. Analysis
i. Valid abrogation of the states' immunity requires a showing that: (1) Congress unequivocally expressed its intent to abrogate; and (2) it acted pursuant to a valid grant of constitutional authority. The first question was easily answered because the ADA specifically provides for abrogation in 42 U.S.C. § 12202.
ii. With regard to the second question, Congress can abrogate state sovereign immunity pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment, and has a "wide berth" in devising appropriate remedial and preventative measures for unconstitutional actions, but its power is not unlimited, and such laws may not work a "substantive change in the governing law" (citing Boerne, supra, 521 U.S. at 519).
iii. The Boerne test requires that there is "a congruence and proportionality" between an injury and the means adopted to prevent or remedy it. Id., at 520.
iv. The first step of the Boerne test requires identification of the constitutional rights Congress sought to enforce when it enacted Title II.
(1) Like Title I, Title II seeks to enforce the Fourteenth Amendment's prohibition of irrational disability discrimination, based on the Equal Protection Clause.
(2) But Title II also seeks to enforce a variety of other basic constitutional guarantees under the Due Process Clause, including some, like the right of access to the courts at issue here, infringements of which are subject to heightened judicial scrutiny.
v. The second step of the Boerne test is to determine if Title II validly enforces such constitutional rights, and that "must be judged with reference to the historical experience which it reflects."
(1) Congress enacted Title II against a backdrop of pervasive unequal treatment of persons with disabilities in the administration of state services and programs, including systematic deprivations of fundamental rights.
(2) "The ADA was passed by large majorities . . . after decades of deliberation and investigation into the need for comprehensive legislation [including] 13 hearings and . . . a special task force that gathered evidence from every State in the Union."
(3) The historical experience that Title II reflects is documented in the decisions of this and other courts, which have identified unconstitutional treatment of persons with disabilities by state agencies in a variety of public programs and services.
(4) With respect to the particular services at issue, Congress learned that many individuals, in many states, were being excluded from courthouses and court proceedings by reason of their disabilities, citing a Civil Rights Commission report, testimony to Congress, and testimony to its appointed task force. The sheer volume of such evidence far exceeds the record in Hibbs.
(5) Congress' finding in the ADA that "discrimination against individuals with disabilities persists in such critical areas as ... access to public services," 42 U.S.C. § 12101(a)(3), together with the extensive record of disability discrimination that underlies it, makes clear that inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation.
vi. The third step of the Boerne test is to determine if Title II is an appropriate response to this history and pattern of unequal treatment.
(1) "Title II—unlike RFRA, the Patent Remedy Act, and the other statutes we have reviewed for validity under § 5—reaches a wide array of official conduct in an effort to enforce an equally wide array of constitutional guarantees. Petitioner urges us both to examine the broad range of Title II's applications all at once, and to treat that breadth as a mark of the law's invalidity. According to petitioner, the fact that Title II applies not only to public education and voting-booth access but also to seating at state-owned hockey rinks indicates that Title II is not appropriately tailored to serve its objectives. But nothing in our case law requires us to consider Title II, with its wide variety of applications, as an undifferentiated whole. Whatever might be said about Title II's other applications, the question presented in this case is not whether Congress can validly subject the States to private suits for money damages for failing to provide reasonable access to hockey rinks, or even to voting booths, but whether Congress had the power under § 5 to enforce the constitutional right of access to the courts. Because we find that Title II unquestionably is valid § 5 legislation as it applies to the class of cases implicating the accessibility of judicial services, we need go no further." Lane, 124 S. Ct. at 1992-1993 (footnotes omitted).
(2) The long history of unequal treatment of persons with disabilities in the administration of judicial services has persisted despite several state and federal legislative efforts to remedy the problem. Faced with considerable evidence of the shortcomings of these previous efforts, Congress was justified in concluding that the difficult and intractable problem of disability discrimination warranted added prophylactic measures. Congress' chosen remedy for the pattern of exclusion and discrimination at issue, Title II's requirement of program accessibility, is congruent and proportional to its object of enforcing the right of access to the courts.
(3) The remedy Congress chose was a limited one.
(a) Recognizing that the failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion, Congress required the States to take reasonable measures to remove architectural and other barriers to accessibility.
(b) But Title II does not require States to employ any and all means to make judicial services accessible or to compromise essential eligibility criteria for public programs. It only requires reasonable modifications for people who are otherwise eligible for the service, and requires no fundamental alteration. The Title II regulations make clear that the reasonable modification requirement can be satisfied in various ways, including less costly measures than structural changes.
(c) "This duty to accommodate is perfectly consistent with the well-established due process principle that, ‘within the limits of practicability, a State must afford to all individuals a meaningful opportunity to be heard' in its courts." Lane, 124 S. Ct. at 1994. A number of affirmative obligations flow from this principle, and ordinary considerations of cost and convenience alone cannot justify a state's failure to provide individuals with a meaningful right of access to the courts. Judged against this backdrop, Title II's affirmative obligation to accommodate is a reasonable prophylactic measure, reasonably targeted to a legitimate end.
(4) The Court stressed that denial of access to court proceedings violated the plaintiffs' rights to due process, not merely their nondiscrimination rights (such as they might be) protected by the equal protection clause. This distinction was critical, the Court argued, because these due process rights are more fundamental, and hence give Congress more leeway to safeguard than the employment nondiscrimination rights addressed by Title I.
e. Concurring opinion by Souter (in which Ginsburg joined) - would also rely on the courts' historical approval of involuntary sterilization and other eugenics doctrines as part of the history of discrimination by the courts themselves.
f. Concurring opinion by Ginsburg (in which Souter and Breyer joined) - legislation calling upon all government actors to respect the dignity of individuals with disabilities is entirely compatible with our Constitution's commitment to federalism, properly conceived. It seems to me not conducive to a harmonious federal system to require Congress, before it exercises authority under § 5 of the Fourteenth Amendment, essentially to indict each State for disregarding the equal-citizenship stature of persons with disabilities [as Scalia's dissent suggests]."
g. Dissent by Rehnquist, in which Kennedy and Thomas joined
i. "[T]oday's decision is irreconcilable with Garrett. . . . While the Court today pays lipservice to the ‘congruence and proportionality' test, . . . it applies it in a manner inconsistent with our recent precedents."
ii. Step 1 of the Boerne test: identifying the constitutional rights at issue
(1) "In this case, the task of identifying the scope of the relevant constitutional protection is more difficult because Title II purports to enforce a panoply of constitutional rights of disabled persons: not only the equal protection right against irrational discrimination, but also certain rights protected by the Due Process Clause. . . . However, because the Court ultimately upholds Title II ‘as it applies to the class of cases implicating the fundamental right of access to the courts,' . . . the proper inquiry focuses on the scope of those due process rights."
(2) The Court cites four access-to-the-courts rights that Title II purportedly enforces: the right of the criminal defendant to be present at all critical stages of the trial; the right of litigants to have a meaningful opportunity to be heard in judicial proceedings; the right of the criminal defendant to trial by a jury composed of a fair cross section of the community; and the public right of access to criminal proceedings.
iii. Step 2 of the Boerne test: "[W]hether Congress ‘identified a history and pattern' of violations of these constitutional rights by the States with respect to the disabled."
(1) "the majority identifies nothing in the legislative record that shows Congress was responding to widespread violations of the due process rights of disabled persons."
(2) "Rather than limiting its discussion of constitutional violations to the due process rights on which it ultimately relies, the majority sets out on a wide-ranging account of societal discrimination against the disabled. . . . Some of this evidence would be relevant if the Court were considering the constitutionality of the statute as a whole; but the Court rejects that approach in favor of a narrower ‘as-applied' inquiry. . . . We discounted much the same type of outdated, generalized evidence in Garrett."
(3) "Even if it were proper to consider this broader category of evidence, much of it does not concern unconstitutional action by the States. The bulk of the Court's evidence concerns discrimination by nonstate governments, rather than the States themselves. . . . We have repeatedly held that such evidence is irrelevant to the inquiry whether Congress has validly abrogated Eleventh Amendment immunity, a privilege enjoyed only by the sovereign States. Garrett, supra, at 368-369 . . .."
(4) "[T]he majority today cites the same congressional task force evidence we rejected in Garrett . . .. [T]his ‘unexamined, anecdotal' evidence does not suffice. . . . Most of the brief anecdotes do not involve States at all, and those that do are not sufficiently detailed to determine whether the instances of ‘unequal treatment' were irrational . . .. [G]eneric findings of discrimination and unequal treatment vel non are insufficient to show a pattern of constitutional violations where rational-basis scrutiny applies."
(5) "With respect to the due process ‘access to the courts' rights on which the Court ultimately relies, Congress' failure to identify a pattern of actual constitutional violations by the States is even more striking. . . . The Court's attempt to disguise the lack of congressional documentation with a few citations to judicial decisions cannot retroactively provide support for Title II, and in any event, fails on its own terms."
(6) "Even if the anecdotal evidence and conclusory statements relied on by the majority could be properly considered, the mere existence of an architecturally ‘inaccessible' courthouse--i.e., one a disabled person cannot utilize without assistance--does not state a constitutional violation."
iv. Step 3 of Boerne - whether the Title II remedies are congruent and proportional to the constitutional rights it purports to enforce and the record of constitutional violations adduced by Congress.
(1) "‘Despite subjecting States to this expansive liability,' the broad terms of Title II ‘d[o] nothing to limit the coverage of the Act to cases involving arguable constitutional violations.'"
(2) Title II is not tailored to provide prophylactic protection of any fundamental rights; instead, it applies to any service, program, or activity provided by any entity. Its provisions affect transportation, health, education, and recreation programs, among many others, all of which are accorded only rational-basis scrutiny under the Equal Protection Clause. A requirement of accommodation for a person with a disability at a state-owned amusement park or sports stadium, for example, bears no permissible prophylactic relationship to enabling persons with disabilities to exercise their fundamental constitutional rights.
(3) "The majority concludes that Title II's massive overbreadth can be cured by considering the statute only ‘as it applies to the class of cases implicating the accessibility of judicial services.' . . . I have grave doubts about importing an ‘as applied' approach into the § 5 context. While the majority is of course correct that this Court normally only considers the application of a statute to a particular case, the proper inquiry under City of Boerne and its progeny is somewhat different. In applying the congruence-and-proportionality test, we ask whether Congress has attempted to statutorily redefine the constitutional rights protected by the Fourteenth Amendment. This question can only be answered by measuring the breadth of a statute's coverage against the scope of the constitutional rights it purports to enforce and the record of violations it purports to remedy."
(4) Our § 5 precedents do not support this as-applied approach. In each case, we measured the full breadth of the statute or relevant provision that Congress enacted against the scope of the constitutional right it purported to enforce.
(5) Even in the limited courthouse-access context, Title II does not properly abrogate state sovereign immunity. Congress utterly failed to identify any evidence that persons with disabilities were denied constitutionally protected access to judicial proceedings. Without this predicate showing, Title II, even if we were to hypothesize that it applies only to courthouses, cannot be viewed as a congruent and proportional response to state constitutional violations. Moreover, even in the courthouse-access context, Title II requires substantially more than the Due Process Clause.
h. Dissent by Scalia
i. The "congruence and proportionality" standard, like all such flabby tests, is a standing invitation to judicial arbitrariness and policy-driven decisionmaking. Worse still, it casts this Court in the role of Congress's taskmaster. Under it, the courts (and ultimately this Court) must regularly check Congress's homework to make sure that it has identified sufficient constitutional violations to make its remedy congruent and proportional. As a general matter, we are ill advised to adopt or adhere to constitutional rules that bring us into constant conflict with a coequal branch of Government. And when conflict is unavoidable, we should not come to do battle with the United States Congress armed only with a test ("congruence and proportionality") that has no demonstrable basis in the text of the Constitution and cannot objectively be shown to have been met or failed.
ii. I would replace "congruence and proportionality" with another test--one that provides a clear, enforceable limitation supported by the text of § 5. Section 5 grants Congress the power "to enforce, by appropriate legislation," the other provisions of the Fourteenth Amendment, and one does not, within any normal meaning of the term, "enforce" a prohibition by issuing a still broader prohibition directed to the same end.
iii. Principally for reasons of stare decisis, I shall henceforth apply the permissive McCulloch standard to congressional measures designed to remedy racial discrimination by the States. I would also require that Congress may impose prophylactic § 5 legislation only upon those particular States in which there has been an identified history of relevant constitutional violations.
iv. I will not use the "congruence and proportionality" analysis on statutes that are not directed to racial discrimination. Rather, I will uphold these laws only when the "enforcement" of the provisions of the Fourteenth Amendment, within the broad but limited meaning of that term I have described above. When it goes beyond enforcement to prophylaxis, I will consider it ultra vires. The present legislation is plainly of the latter sort.
v. N.B. - At least one commentator predicts that Justice Scalia's analysis "will surely bear on future Section 5 cases." Araiza, W., The Section 5 Power After Tennessee v. Lane, 32 Pepp. L.Rev. 39 (2004).
i. Dissent by Thomas - writes separately only to disavow any reliance on Hibbs in reaching the conclusions in Rehnquist's dissent, because he continues to believe that Hibbs was wrongly decided.
3. Some Changes in the Boerne Analysis
a. According to one commentator, Lane represents a retreat from some of the harsher principles of Garrett, which was the Court's most restrictive statement of Congress's ability to use § 5 to abrogate sovereign immunity. Waterstone, M., Lane, Fundamental Rights, & Voting, Alab. L. Rev. (forthcoming), linked to http://papers.ssrn.com/sol3/p apers.cfm?abstract_id=600261. On one hand, Lane confirms the Court will continue to operate within the "congruence and proportionality" framework established and applied in prior cases, but Lane makes clear – albeit implicitly – that there is a new and different set of rules for cases involving "fundamental rights." Id.
b. According to Prof. Waterstone, Lane departs from previous new federalism cases (Garrett in particular) in three important ways: (1) the Court's willingness to consider the history of discriminatory treatment even if not clearly unconstitutional; (2) when analyzing a statute that implicates a number of fundamental rights, the Court will consider discriminatory treatment by public officials in the exercise of any of those rights that are "related" to the right at issue in that case; and (3) viewing the ADA's reasonable accommodation requirement as a positive factor in the congruence and proportionality analysis. These first two departures from prior new federalism cases amount to a presumption in favor of Congress's § 5 powers when Congress legislates to protect fundamental rights.
c. Other commentators have also noted the difference in the Court's treatment of the historical record. One finds the Court has gone from "contemptuous[] dismiss[al]" of large volumes of evidence, to taking "Congress' fact-gathering efforts seriously and evaluat[ing] them sympathetically." Lazarus, S., Strategic Realignment on Sovereign Immunity and the Fourteenth Amendment?, http://www.acslaw.org/views/lazarus.htm. Another notes that the majority credited evidence of discrimination submitted to a congressionally-created task force (not evidence submitted directly to Congress or given in a formal congressional findings), and in a footnote suggested that evidence of private party conduct was also relevant. Araiza, W., The Section 5 Power After Tennessee v. Lane, 32 Pepp. L.Rev. 39, 42-43 (2004):
d. Prof. Araiza also notes that the majority clarified, although with a caveat, that Congress had the power to ban discriminatory effects in order to deter or remedy actions that had a discriminatory motive. Id., 32 Pepp. L.Rev. at 43.
4. Post-Lane Cases Decided To Date
a. Barbour v. Washington Metropolitan Area Transit Authority, 374 F.3d 1161 (D.C. Cir. July 9, 2004)
i. Facts: employee sued public transit authority, alleging that he was fired because of disability in violation of the Rehabilitation Act.
ii. The court held that the transit authority's acceptance of federal funds waived its immunity to Rehabilitation Act claim
iii. Dissent (Judge Sentelle):
(1) Because the dissent would find no waiver, it also considered the argument that the Rehabilitation Act validly abrogated immunity.
(2) Appears to agree with much of Justice Scalia's analysis in Lane.
(3) The judge admitted that he did not do comprehensive independent review of the history of Rehabilitation Act, but noted that the evidence the plaintiff cited "seems to fall woefully short of demonstrating anything approaching a widespread pattern of unconstitutional discrimination against the disabled by the states in general or WMATA in particular."
(4) The judge also found this case more like Garrett than Lane, because there was no fundamental right involved.
b. Badillo-Santiago v. Naveira-Merly, 378 F.3d 1 (1st Cir. July 29, 2004)
i. Facts: Plaintiff who was hard of hearing sought accommodations at his civil trial
ii. Analysis: The court found that at least one of plaintiff's claims fell within the holding in Lane, but ruled against the plaintiff on other grounds (namely, the Rooker-Feldman doctrine).
iii. Note that at least one district court has followed Badillo-Santiago (without any analysis and outside the context of access to courts) in reinstating a Title II claim by a minor child with disabilities who was physically abused by his teacher while receiving homebound special education services. Ramirez-Zayas v. Puerto Rico, 225 F.R.D. 396 (D. P.R. 2005).
c. McCarthy v. Hawkins, 381 F.3d 407 (5th Cir. Aug. 11, 2004), rehearing en banc denied, 391 F.3d 676 (5th Cir. 2004) (with seven judges dissenting on the appealability of the 11th Amendment issue)
i. Majority does not deal with the abrogation issue
ii. Dissent by Emilio Garza:
(1) Reickenbacker is not fully applicable because it looked at the wrong history
(2) Lane resolved the second step of the congruence and proportionality analysis, finding the historical record sufficient
(3) Lane rejects the previous view [at least according to this judge] that Congress must itself identify the historical record in its legislative history. 381 F.3d at 423 n.2.
(4) Lane adopts a new "as applied analysis," so on the third prong the courts must focus on the right in question and see how Title II regulates that specific problem.
(5) Lane mentions mental institutions and unjustified confinement but the only Supreme Court cases dealing with that issue are about commitment procedures and treatment once institutionalized. To the extent Title II regulates those two areas, it may be congruent and proportional, but that question is left for another day.
(6) But this case is different, because the defendants here run a waiver programs, so it is not congruent and proportional
(7) Title II is not valid Commerce Clause legislation because:
(a) there would be no limit to Congressional Commerce Clause power if the plaintiff and the U.S. (as intervenor) were right that Title II is a regulation of an economic enterprise because public entities like the defendants engage in the commercial activity of hiring and paying staff, purchasing or renting facilities, and borrowing money; and
(b) the commercial aspects identified above are matters regulated not by Title II, but by Title I.
d. Miller v. King, 384 F.3d 1248 (11th Cir. Sep. 14, 2004), petition for rehearing en banc filed. For the NSCLC's summary of the case, see: http://www.nsclc.org/news/04/sept/11thcirADAunconst_stateprisons.htm.
i. Facts: a state prisoner who used a wheelchair and was incontinent brought ADA and constitutional claims challenging the failure to provide accommodations, such as accessible toilets and showers, needed medical equipment (e.g., leg braces and orthopedic shoes), and an accessible van. He also challenged his placement in a tiny cell, where he could not maneuver with his wheelchair and was forced to remain in his own urine and excrement for extended periods of time, with no ability to move and no physical therapy.
ii. Analysis
(1) Step 1 is to identify the rights at issue, and the court agreed with the parties that there is only one – the 8th amendment right to be free from cruel and unusual punishment. (Note that the U.S. as intervenor had argued that additional due process rights were at issue in the prison context, including rights to fair procedures and to access the courts; First Amendment rights to engage in certain speech, to marry, and to have religious freedoms; and the rights of pre-trial detainees. See the DOJ's post-Lane brief at http://www.usdoj.gov/crt/briefs/miller_v_king_supp.pdf.)
(2) Step 2 is to determine if there is an adequate history of discrimination. Importantly, the 11th Circuit found that Lane decided that the historical record was sufficient, binding the lower courts (even though in footnote 25, the panel expressed its own doubts about Lane's conclusion on this point).
(3) Step 3 is to determine if the Congressional response in Title II is congruent and proportional to the problems reflected in that history. The panel stated that it had to consider the history in the specific context of 8th Amendment rights in prisons.
(a) The parties disputed how much prison history there was. The plaintiff argued that there was no less than in Lane. The court appears to agree in footnote 30.
(b) But the court found that this case radically differed from Lane in the limited nature of constitutional right at issue, and the way in which Title II would rewrite the 8th Amendment.
(i) Lane recognized the limited nature of Title II's remedies and the breadth of the right to access to court (finding them "perfectly consistent"), but the 11th Circuit observed a stark difference between the robust, positive due process requirement of access to courts vs. the negative and narrow obligation to be free from cruel and unusual punishment.
(ii) The court also noted that the 8th Amendment has no effect on most prison programs, as it only deals with punishment, and even there requires wanton or willful conduct. Thus, it regulates only a small slice of prison conduct, and states have repeatedly been given a lot of discretion in running their prisons. In contrast, Title II deals with all programs, services and activities
(iii) The court also refused to limit its consideration to the particular part of the prison at issue here, stating that it must examine § 5 issues in the context of state prisons as a whole.
(iv) Plaintiff argued that Title II only required reasonable modifications, and although the court recognized that prisons' unique circumstances might affect what is reasonable, it continued to focus on its perception that Title II reaches a lot more conduct than (and thus would allow Congress to rewrite) 8th Amendment law.
(c) The court thus found that Title II – as applied to the 8th Amendment context in state prisons – fails to meet the congruence and proportionality requirement.
(d) Although the court concluded that Title II as a whole fails the congruence-and-proportionality test in the 8th Amendment context, Miller alternatively argued that Title II could be more narrowly enforced against states if the alleged ADA violations also violated the constitutional right at issue (in this case, the 8th Amendment). The plaintiff argued that Title II could not be disproportional if it is confined to remedying constitutional violations. Although the Second Circuit essentially adopted this approach pre-Lane in Garcia v. SUNY Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 111-112 (2001), the 11th Circuit rejected it in footnote 34, finding it inconsistent with Lane.
iii. The court also held that there is no individual liability under the ADA except for retaliation claims (because the retaliation provision applies to any "person," but Title II applies to "public entities"). [Note that this was not an Ex parte Young claim, but a claim for damages against state officials in their individual capacity.]
e. Goodman v. Ray, 120 Fed.Appx. 785, 2004 WL 2157192 (11th Cir. Sep. 16, 2004) (unreported), petition for cert. pending
i. Facts: Plaintiff, an inmate in a Georgia state prison, sued the state alleging Title II violations.
ii. Analysis: The panel did not offer any analysis for its conclusion, but merely relied on its opinion in Miller v. King (described above at ¶ 4.d) that states retain Eleventh Amendment immunity from suits under Title II in the prison context.
iii. DOJ's post-Lane brief (as intervenor) to the panel, filed 6/25/04, is at http://www.usdoj.gov/crt/briefs/goodman_supp.pdf; DOJ's petition for rehearing en banc filed 10/29/04 (and denied 12/9/04), arguing that Miller was wrong, is at http://www.usdoj.gov/crt/briefs/goodman_rehg.pdf.
f. Phiffer v. Columbia River Correctional Institute, 384 F.3d 791 (9th Cir. Sep. 21, 2004), petition for cert. filed
i. Facts: inmate with osteoarthritis and osteoporosis was unable to sit for the three-hour periods required for participation in his assigned prison program and he sought to return to his previous program, or alternatively, a reasonable accommodation. Defendants denied his requests and he suffered severe physical pain as a result.
ii. Analysis
(1) The Supreme Court vacated and remanded the original panel opinion for reconsideration in light of Lane. Upon review, the court reaffirmed its original opinion rejecting the state's 11th Amendment immunity, finding it consistent with its precedent (that Title II as a whole validly abrogates states' immunity), and declining to further review that settled precedent.
(2) The dissent agrees that precedent controls, but noted the tension between 9th Circuit case law and the Supreme Court's congruence and proportionality analysis.
g. Pace v. Bogalusa City School Bd., ___ F.3d ___, 2005 WL 546507 (5th Cir. Mar. 8, 2005) (en banc)
i. Majority opinion
(1) The majority found that it did not need to decide if Lane's abrogation extends to public education because the § 504 rights at issue are the same, but it did note that education is not a fundamental right
(2) Finds that the continuing validity of the court's prior Title II abrogation decision, in Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001), is uncertain, observing that is overruled at least with respect to access to courts
(3) Notes that in the congruence and proportionality analysis, courts may look at local government discrimination and not just state discrimination.
ii. Dissent: would hold that Reickenbacker is valid except in the "Lane scenario." 2005 WL 546507, at *23.
h. Cochran v. Pinchak, ___ F.3d ___, 2005 WL 589434 (3rd Cir. March 15, 2005)
i. Facts: a blind prison inmate sued because he was temporarily denied access to talking books, talking watch, usable lock, and his cane.
ii. Analysis:
(1) Step 1 - the only right identified here was irrational unconstitutional discrimination protected by the Equal Protection clause (distinguishing Miller, which analyzed the congruence and proportionality of 8th Amendment rights)
(2) Step 2 - Lane found a significant pattern of unequal treatment in public services in general and access to public facilities, and the 3rd Circuit held that it was bound by Lane's conclusion that this history was a sufficient pattern of state unconstitutional actions
(3) Step 3 -
(a) For equal protection claims involving disability-based distinctions, the state need only show a "rational relationship"
(b) Title II's right to inclusion conflicts with the state's right to make rational classification, and also conflicts with the constitutional policy of deference to states in prison matters, described in Turner v. Safley, 482 U.S. 78 (1987).
(c) The Due Process right to court access is much more robust than equal protection rights that to do not involve a suspect class or a fundamental right. The court noted that the outcome might have been different if prisoners were being denied fundamental rights
iii. Scirica dissent:
(1) Notes that Lane cites the history of discrimination in the penal system.
(2) Would find Title II a reasonable response to this history because it only requires policy modifications: (a) that are reasonable; (b) that do not require fundamental alteration or undue financial or administrative burden; and (c) for persons with disabilities who are otherwise qualified.
(3) Finds that Title II allows a balancing of interests that is consistent with City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432 (1985), and Turner v. Safley, supra.
iv. The DOJ's (unsuccessful) brief in intervention, filed 7/8/04, is online at http://www.usdoj.gov/crt/briefs/cochran.pdf.
i. Association for Disabled Americans, Inc. v. Florida Int'l Univ., No. 02-10360, ___ F.3d ___, 2005 WL 768129 (Apr. 6, 2005).
i. Facts: State university failed to provide qualified sign language interpreters, effective note takers, and other aids such as physical access to facilities. Plaintiffs sought injunctive relief only, but named the university as defendant (as opposed to naming university officials and proceeding under Ex parte Young).
ii. Holding: As applied to public education, Title II is valid 14th Amendment legislation and properly abrogates states' sovereign immunity.
iii. Analysis:
(1) Step 1 - The relevant constitutional right is the right to be free from irrational disability discrimination in education.
(a) "Here, although classifications relating to education only involve rational basis review under the Equal Protection Clause, ‘[b]oth the importance of education in maintaining our basic institutions, and the lasting impact of its deprivation on the life of the child,' distinguishes public education from other rights subject to rational basis review. The Supreme Court long has recognized that even when discrimination in education does not abridge a fundamental right, the gravity of the harm is vast and far reaching. Thus, the constitutional right to equality in education, though not fundamental, is vital to the future success of our society." (citations omitted).
(b) The "gravity of the harm [from discrimination in education] is vast and far reaching …. Thus, the constitutional right to equality in education, though not fundamental, is vital to the future success of our society."
(c) The Court noted that "[a]lthough the rights at stake in Lane were fundamental, we note that the Court did not specify the need for a fundamental right to be at stake in order to satisfy this prong of the inquiry." 2005 WL 768129 at *2, n.2.
(2) Step 2 - Lane found a significant pattern of unequal treatment in public services in general and access to public facilities, and the 11th Circuit held that it was bound by Lane's conclusion that this history was a sufficient pattern of state unconstitutional actions. The court also noted that Lane cited several cases involving state discrimination in education.
(3) Step 3 - Title II was a congruent and proportional response to the long history of unequal treatment of individuals with disabilities in education, which has persisted despite several legislative efforts to remedy it. Title II only prohibits discrimination based on disability (not on other grounds), and requires only reasonable modifications. It is thus an appropriate response because "[d]iscrimination against disabled students in education affects disabled persons' future ability to exercise and participate in the most basic rights and responsibilities of citizenship, such as voting and participation in public programs and services."
iv. The post-Lane brief by the Intervenor United States, filed 7/21/04, is online at http://www.usdoj.gov/crt/briefs/assocdisabled_supp.pdf.
j. McNulty v. Board of Educ. of Calvert County, 2004 WL 1554401 (D.Md. July 8, 2004)
i. Facts: a high school student with attention deficit disorder challenged various actions of the school system, including placing him inappropriately in a non-mainstreamed program and taking disciplinary actions against him as retaliation for his advocacy.
ii. Analysis:
(1) Lane only decided a limited question.
(2) Prior circuit precedent in Wessel v. Glendening, 306 F.3d 203 (4th Cir. 2002), held that Title II did not validly abrogate states' immunities.
(3) Education is not a fundamental right, and disability is not a suspect class, so under the constitution, disability distinctions in a case like this are subject only to "rational basis" review.
(4) Therefore, the state's immunity is "intact" for education claims.
(5) Note that the various county boards of education in Maryland have been held to be an "arm of the state" entitled to 11th Amendment immunity, in contrast to the law covering many other states. For more on this issue, see: http://www.nls.org/conf2002/suing_the_state.htm
(6) The court also held that there is no individual liability under the ADA, not even for retaliation claims (rejecting the contrary view in Shotz v. City of Plantation, Fla., 344 F.3d 1161 (11th Cir.2003))
k. Roe v. Johnson, 334 F. Supp. 2d 415 (S.D. N.Y. Sep. 1, 2004), appeal pending [see ¶ 5.c below]
i. Facts: plaintiff challenged the overbreadth of a bar admission question concerning mental health treatment.
ii. Analysis
(1) The court suggested that the Second Circuit's "scienter" requirement in its pre-Lane decision in Garcia (that the state's Title II liability is limited to claims in which the state was motivated by discriminatory animus or ill will based on the plaintiff's disability) may no longer be enough to prove abrogation after Lane, in the absence of a fundamental right. Roe, 334 F. Supp. 2d at 421, n.9. (Note that this appears to contrast with the court's analysis in Degrafinreid, discussed at ¶ 4.p above.)
(2) The court found no history of discrimination by the state bar, distinguishing Lane, noting that the type of conduct alleged in this case "is far removed from the type of discrimination in the administration of public programs and services that Lane found to be supported by the congressional record.". (Note that this contrasts with the holding in Miller and Cochran that Lane established that the history was sufficient. See ¶ 4.d.ii(2) and ¶ 4.h.ii(2) above.)
l. Simmang v. Texas Bd. of Law Examiners, 346 F. Supp. 2d 874 (W.D. Tex. Sep. 15, 2004)
i. Facts: Applicant was denied accommodations on the Texas Bar Exam
ii. Analysis:
(1) The court found no occasion for deciding if Lane overrules Reickenbacker because the plaintiff in this case did not allege any fundamental right. The court noted that many cases have held that the right to practice law is not a fundamental right.
(2) Instead, the plaintiff alleged only irrational "unconstitutional" discrimination under the Equal Protection clause, and as to that, the court was bound by Riekenbacker's holding that it is not congruent and proportional.
iii. The court also held that Congress did not validly abrogate the state's immunity from Title III claims. (The court observed that contrary to other parts of Title III, the part of the title covering "examinations" by its language appears to include public entities in its coverage.)
iv. The court also rejected the state's claim that Ex parte Young did not apply. For NSCLC's case summary, see http://www.nsclc.org/news/05/01/FR_adarelief.htm.
m. Haas v. Quest Recovery Services, Inc., 338 F. Supp.2d 797 (N.D. Ohio Sep. 20, 2004)
i. Facts: a criminal defendant with physical disabilities was sentenced to an inaccessible drug and alcohol treatment facility, and sought accommodations such as accessible toilets and showers.
ii. Analysis:
(1) The court found no abrogation in this context. Previous Sixth Circuit precedent, Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808 (6th Cir. 2002), limited abrogation to Title II claims implicating due process rights. Plaintiff's claims sounded in equal protection rather than due process.
(2) Nor did plaintiff's claims fit within any of the other fundamental rights violations identified by Lane (the right to be present at trial, the right to a meaningful opportunity to be heard, the right to a trial by jury or the public's right of access to criminal proceedings).
n. Johnson v. Southern Connecticut State University, 2004 WL 2377225 (D. Conn. Sep. 30, 2004)
i. Facts: student at postgraduate program in nurse anesthesiology alleged that the program failed to accommodate his anxiety in the clinical part of the curriculum by, for example, providing evaluation or counseling.
ii. Analysis: "[I]n the wake of Lane, it appears that a private suit for money damages under Title II of the ADA may be maintained against a state only if the plaintiff can establish that the Title II violation involved a fundamental right. The Supreme Court has repeatedly held that the right to an education is neither explicitly nor implicitly guaranteed in the Constitution, and as such, cannot be considered ‘fundamental.' Moreover, while those cases all involved primary school education, Johnson's action arises in the higher education setting. Courts have concluded that there is no fundamental right to a higher education." (citations omitted)
o. Buchanan v. Maine, 2004 WL 2457796, at *2 (D. Me. Nov. 2, 2004)
i. Facts: the police shot and killed a person with a history of mental illness after one of the officers responding to a "crisis" call was stabbed by the person.
ii. Analysis:
(1) Noted that the First Circuit's pre-Lane precedent in Kiman v. Department of Corrections is murky, but finding no need to decide Lane's affect on that analysis because the plaintiff did not state a valid Title II claim in this case.
(2) The plaintiff alleged no discriminatory conduct, but only claimed inadequate services by an agency that only served persons with disabilities. "[T]he State cannot be deemed to be discriminating against mental health patients in the provision of mental health services that they provide only to mental health patients."
p. Degrafinreid v. Ricks, 2004 WL 2793168, at *6 (S.D. N.Y. Dec. 6, 2004)
i. Facts: deaf inmate alleged that guards destroyed his hearing aids after he filed a complaint, and they were never replaced.
ii. Analysis: "As the United States Supreme Court's limited holding in [Lane] does not appear to have impacted the standard set forth in Garcia, and Degrafinreid has failed to specifically allege that Defendants' conduct was driven by ‘discriminatory animus or ill will,' his ADA claim, to the extent brought against Defendants in their official capacity and seeking monetary damages, is dismissed." (footnote omitted)
q. Shedlock v. Department of Correction, 818 N.E.2d 1022 (Mass. Dec. 8, 2004)
i. Facts: prisoner who was limited in walking claimed that the state prison failed to accommodate him, and retaliated against him
ii. Analysis:
(1) The plaintiff claimed that the ADA's antiretaliation provisions protected his First Amendment rights.
(2) But he failed to brief the other parts of the Boerne test. He pointed to "nothing in the legislative history of the ADA to suggest that Congress considered and documented violations of First Amendment rights by States, or considered and documented a problem of retaliation by States against persons asserting constitutional rights that would potentially be further protected by the ADA, or that concern about First Amendment violations is what underlies Title V of the ADA."
(3) Nor did he address the third step, apparently arguing "that framing the issue in First Amendment terms exempts him from having to satisfy the remainder of the test." The court found "no support for such an approach," and deemed the abrogation argument waived. (Note that the DOJ made this same argument in Constantine. See ¶ 5.d.ii(4)(b) below.)
5. Post-Lane Cases Pending
a. Phiffer v. Columbia River Correctional Institute, 384 F.3d 791 (9th Cir. 2004), petition for cert. pending, No. 04-947. See description at ¶ 4.f above. The Solicitor General's petition for writ of certiorari is online at http://www.usdoj.gov/osg/briefs/2004/2pet/7pet/2004-1203.pet.aa.html
b. Goodman v. Ray, 120 Fed.Appx. 785, 2004 WL 2157192 (11th Cir. Sep. 16, 2004) (unreported), petition for cert. pending, No. 04-1203. See description at ¶ 4.e above.
c. Roe v. Johnson, appeal pending, No. 04-5360 (2nd Cir.)
i. Facts: See ¶ 4.d above. The opinion below at 334 F. Supp. 2d 415 (S.D. N.Y. 2004).
ii. Analysis of the U.S., as intervenor, in its brief filed on 3/14/05, online at http://www.usdoj.gov/crt/briefs/roe.pdf:
(1) "Although the United States takes no position on whether any of the plaintiff's claims are barred because of lack of standing, Rooker-Feldman, or Younger, we urge this Court to address those issues before reaching, if necessary, the validity of Title II of the ADA and its abrogation provision, as applied in the context of public licensing."
(2) In Lane, the Court considered Title II's application to access to judicial services, an area of government services that sometimes implicates fundamental rights (such as George Lane's rights in his criminal proceedings) and sometimes implicates rights subject only to rational basis scrutiny (as was true in the case of Lane's co-plaintiff, Beverly Jones, who was prevented from acting as a court reporter because of physical barriers to courtroom access).
(3) Public licensing programs similarly implicate a range of constitutional rights, some of which are subject to heightened, and others rational basis, scrutiny. "The liberty guaranteed by the Fourteenth Amendment ‘denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.' Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Licensing programs that regulate these and other constitutionally-protected activities are often subject to heightened constitutional scrutiny."
(4) The appropriate range of Title II applications is the class of cases implicating public licensing, not the overly narrow range adopted by the district court (of discrimination against persons with disabilities seeking admission to a state bar). "The categorical approach taken by the Supreme Court in Lane is a much more appropriate mode of analysis than the district court's litigant-specific approach of considering only the specific factual claim of the plaintiff before it."
(5) In Lane, the Court held that Congress acted appropriately in prohibiting disability discrimination impairing access to judicial services generally. The same is true of public licensing.
(6) Lane's conclusion that the historical record of discrimination in public services was sufficient necessarily applies to public licensing programs, but in any case, there is ample support for Congress's decision to extend Title II to the licensing context.
(7) Title II, as it applies to licensing, is a congruent and proportionate response to that record of discrimination against people with disabilities both in the licensing context and in the provision of public services generally.
(8) N.B. - For another brief regarding public licensing, see the U.S.'s brief in intervention filed in Guttman v. Khalsa on 9/10/04, online at http://www.usdoj.gov/crt/briefs/guttman.pdf. The case was ultimately decided on other (Rooker-Feldman) grounds. See ___ F.3d ___, 2005 WL 615868 (10th Cir. Mar. 17, 2005).
d. Constantine v. The Rectors and Visitors of George Mason University, No. 04-1410 (4th Cir.)
i. Facts: plaintiff alleged that during her third year of law school, she was denied a testing accommodation and retaliated against when she complained to school officials and in a student newspaper of the failure to accommodate.
ii. Analysis of the U.S., as intervenor, in its brief filed on 12/08/04, online at http://www.usdoj.gov/crt/briefs/constantine.pdf:
(1) Although the University raises numerous constitutional challenges in this appeal, this Court need not resolve them all. This Court should first determine if the district court's dismissal of plaintiffs' claims can be affirmed on the merits, thereby avoiding the constitutional issues entirely.
(2) If necessary, this Court should next consider whether the University waived its immunity to § 504 claims by accepting federal funds, since plaintiff can obtain all the relief she seeks under § 504 regardless of whether the University is immune to claims under Title II. (The brief cites precedent in the 4th and other circuits in support of waiver.)
(3) In light of Lane, Title II is valid legislation to enforce the Fourteenth Amendment as applied to discrimination in public education.
(a) The 4th Circuit should not follow its precedent in Wessel, because the Supreme Court's analysis in Lane departed substantially from that in Wessel
(b) Although education is not a fundamental right, the Supreme Court has repeatedly recognized that it is an important one, and irrational discrimination is unconstitutional.
(c) Contrary to Wessel, Lane conclusively established that there was a sufficient historical record of unconstitutional discrimination, but in any case, there is ample record of past discrimination in public education generally (as detailed in the brief).
(4) The retaliation provision of Title V of the ADA is also valid Fourteenth Amendment legislation.
(a) It is a valid means of effectuating the primary substantive requirements of Title II as applied in the context of public education, which as discussed above, is itself valid § 5 legislation. Prohibitions against retaliation for the exercise of rights are a traditional and essential means of ensuring that the rights promised by legislation are, in fact, realized in practice.
(b) It is also valid because it prohibits conduct that independently violates the First Amendment. When Congress enacts a provision that simply provides a remedy for a court-defined constitutional right, there is no risk that Congress is attempting to rewrite the Constitution and, therefore, no need to examine whether there has been a history of unconstitutional state action that might authorize prophylactic relief going beyond the requirements of the Constitution itself.
e. Bill M. v. Nebraska Department of Health and Human Services Finance and Support, No. 04-3263 (8th Cir.)
i. Facts: Plaintiffs are a group of individuals with developmental disabilities who seek medical services in an integrated setting in the community rather than in an institutional setting. Plaintiffs sued the state Medicaid agencies as well as various state officials in their official capacities, seeking declaratory and prospective injunctive relief.
ii. Analysis of the U.S., as intervenor, in its brief filed on 11/26/04, online at http://www.usdoj.gov/crt/briefs/billm.pdf:
(1) The court should first consider whether the University waived its immunity to § 504 claims by accepting federal funds, since plaintiff can obtain all the relief she seeks under § 504 regardless of whether the University is immune to claims under Title II. (The brief cites precedent in the 8th circuit in support of waiver.)
(2) In light of Lane, Title II is valid legislation to enforce the Fourteenth Amendment as applied to the institutionalization context.
(a) The 8th Circuit should not follow its precedent in Alsbrook v. City of Maumelle, because the Supreme Court's analysis in Lane departed substantially from that in Wessel.
(b) Although Lane did not examine the congruence and proportionality of Title II as a whole, nor need this court, the U.S. continues to maintain that Title II as a whole is valid § 5 legislation because it is congruent and proportional to Congress's goal of eliminating disability discrimination in public services – an area that the Supreme Court in Lane determined is an "appropriate subject for prophylactic legislation" under § 5.
(c) In this case, Title II acts to enforce the Equal Protection Clause's prohibition against arbitrary treatment based on irrational stereotypes or hostility, as well as the heightened constitutional protection applied to the treatment of persons with disabilities by state agencies in a variety of settings, including unjustified commitment, and the abuse and neglect of persons committed to state mental health hospitals.
(d) As was true of the right to access to courts at issue in Lane, "ordinary considerations of cost and convenience alone cannot justify" institutionalization decisions or the denial of institutionalized persons accommodations necessary to ensure their basic rights. Lane, 124 S. Ct. at 1994.
(e) The Title II integration mandate helps prevent constitutional violations throughout the range of government services, many of which implicate fundamental constitutional rights.
(f) Lane conclusively established that there was a sufficient historical record of unconstitutional discrimination, but in any case, there is ample record of past discrimination against people with disabilities subject to institutionalization (detailed in the brief).
(g) Title II's carefully circumscribed integration mandate is consistent with the commands of the Constitution in this area. Congress was well aware of the long history of state institutionalization decisions being driven by insufficient or illegitimate state purposes, irrational stereotypes, and even outright hostility toward people with disabilities. Title II provides a proportionate response to that history, congruent with the requirements of the Due Process and Equal Protection Clauses, by requiring the State to treat people with disabilities in accordance with their individual needs and capabilities. Compare Olmstead, 527 U.S. at 602.
(h) Given the history of unconstitutional compulsory institutionalization, Congress could conclude that there is a real risk that some state officials may continue to make placement decisions based on hidden invidious class-based stereotypes or animus that would be hard to detect or prove.
(i) In light of the interpretation in Olmstead, Title II appropriately balances the need to protect against that risk and the State's legitimate interests. The state may generally limit services to an institutional setting if the State's treating professionals determine that it is necessary, or if a community placement would impose unwarranted burdens on the State's ability to "maintain a range of facilities and to administer services with an even hand." But when a State persistently refuses to follow the advice of its own professionals and is unable to demonstrate that its decision is justified by sufficient administrative or financial considerations, the risk of unconstitutional treatment is sufficient to warrant Title II's prophylactic response.
(j) Title II also serves broader remedial and prophylactic purposes, because integration is a proper remedy for the continuing effects of the historical exclusion and segregation of people with disabilities from their communities, schools, and other government services. It is also a reasonable way to prevent the risk of future unconstitutional discrimination in government services, through "increasing social contact and interaction of nonhandicapped and handicapped people."
(k) Thus, in the context presented by this case, Title II "cannot be said to be ‘so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior, " citing Lane, 124 S. Ct. at 1994. Congress validly abrogated the state's Eleventh amendment immunity to claims under Title II of the ADA in the institutionalization context.
(3) For another DOJ brief in the institutionalization context, see the supplemental brief by the intervenor filed on 6/15/04 in McCarthy v. Hawkins, http://www.usdoj.gov/crt/briefs/mccarthy_supp.pdf. (Note that the court decided the cases on other [appealability] grounds. See ¶ 4.c above.)
f. Miller v. King, petition for rehearing en banc pending
i. For a discussion of the panel opinion, see ¶ 4.d above.
ii. For the petition for rehearing filed on 10/28/04 by the intervenor U.S., see http://www.usdoj.gov/crt/briefs/miller_rehrg.pdf
g. Everybody Counts, Inc. v. Northwestern Indiana Regional Planning Commission, et al., No. 2:98 CV 97 PPS-APR (N.D. Ind.) (pending)
i. Facts: Independent Living center and individuals sued various defendants alleging that they failed to make Indiana's public transit system accessible. They also sued the Indiana Department of Transportation (INDOT) for contracting with and funding entities that violate Title II and § 504.
ii. Procedural posture: INDOT filed a motion for summary judgment on immunity grounds, and arguments were scheduled for March 24, 2005 in Hammond.
iii. DOJ position: The U.S. intervened, and its brief opposing summary judgment, online at http://home.comcast.net/∼markandtoni/DOJBrief.pdf, argues that:
(1) Lane supersedes prior circuit precedent
(2) Step 1 of Boerne - this case implicates equal protection rights (against irrational conduct), but also the fundamental right to travel. The brief recognizes that only interstate travel has been explicitly recognized, but argues that intrastate travel is also a fundamental right
(3) Step 2 - After Lane, the adequacy of the historical record is not longer open to dispute, but even if it were, there is ample evidence to support Title II.
(4) Step 3 - Title II is congruent and proportional as applied to discrimination in public transit, citing Lane's analysis of the limits of the law, and observing that prohibiting such discrimination is "an appropriate means of preventing and remedying discrimination in public services generally," and "decades of officially compelled isolation, segregation, and discrimination render[ing] persons with disabilities invisible."
(5) The state waived its immunity from § 504 claims by accepting federal funding.
6. Predictions?
a. Everyone is avoiding prediction, and many expect continuing litigation over the question of the contexts in which Title II's attempted abrogation will be upheld. See, e.g., Marcia Coyle, More Litigation Seen Over Court Access: Scope of Title II Still Unclear after ‘Lane,' Nat'l L.J. 1, May 24, 2004, at Col. 1 (ruling in Lane "will trigger piecemeal litigation involving the disabled and higher education, social services and other public activities"); David R. Fine, Tennessee v. Lane: Court Left Issues Open, Nat'l L.J. 23 (June 7, 2004) (narrow holding of Lane offers "little guidance with regard to the thousands of other problems persons with disabilities might confront in their encounters with the government").
b. It is also worth noting Prof. Waterstone's observation: "Lane's facts were a plaintiff's lawyer's dream." See his article cited above at ¶ 3.a.
c. Prof. Waterstone predicts that after Lane, a strong case can be made that Title II claims implicating voting rights will be upheld. Id.
d. Lazarus "begin[s] with the obvious" — "litigants would be well advised not to rush to court challenging denials of access to state controlled recreational facilities, e.g., the ‘hockey rink' hypothetical in Justice Stephens' argument." Like Waterstone, Lazarus predicts that a strong case can be made for voting claims, and says that "[t]he difficult, and potentially painful cases will be in between, involving state facilities and services essential to participation in society but not necessarily to participation in processes of government itself, such as transportation or even education."
e. Lazarus also notes that a more vigorous Commerce Clause challenge may be coming. He observes that "[t]o fend off criticism of their Seminole Tribe-Boerne-Kimel-Garrett jurisprudence, conservative members of the Court have often insisted that barring damage actions to remedy federal rights violations still leaves private citizens with the right to enjoin future state misconduct under the Ex Parte Young doctrine. But as Justice Ginsburg responded to such a disclaimer during the oral argument last January, the minority's narrow approach to defining fourteenth amendment substantive liability could leave plaintiffs with no illegal conduct to enjoin, even on the comparatively compelling facts of Tennessee v. Lane." See also Eyer, K., Rehabilitation Act Redux, 23 Yale L. & Pol. Rev. 271 (Winter 2005) (predicting that claims that do not survive after Lane likely are not supported by the Commerce Clause).
f. Eyer also predicts that future cases will be more likely to succeed if (a) the application implicates fundamental constitutional rights; or (b) they implicate Constitutional rights that may require reasonable accommodations (including, for example, 8th Amendment rights). Id. (But cf. Miller, discussed above at ¶ 4.d.)
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