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This week, the United States Supreme Court upheld the right for George Lane and Beverly Jones to sue Tennessee for money damages under Title II of the Americans with Disabilities Act. Tennessee v. Lane, __ U.S. __ (May 17, 2004).
George Lane uses a wheelchair and was unable to attend his traffic ticket hearing that is on the second floor of an inaccessible courthouse that did not have an elevator. Having once crawled up the stairs for a prior hearing and refusing to do it again, Mr. Lane was arrested and jailed for failure to appear for the hearing. Beverly Jones is a court reporter that was unable to work or participate in the judicial process because a number of courthouses were inaccessible. Both sued the state of Tennessee seeking money damages and injunctive relief. Their cases were consolidated for appellate review.
Recognizing that the ADA protected the right of access to the courts for people with disabilities to access the courts, the Supreme Court allowed the two cases to proceed. Tennessee had attempted to shield itself from the lawsuits by using the sovereign immunity defense established by the Eleventh Amendment1 to the Constitution. Normally, private citizens cannot sue a state without its consent in federal court. Congress can override a state’s immunity as long as it legislates to enforce the Fourteenth Amendment2 within a prescribed framework set out by a series of prior Supreme Court decisions. Tennessee had claimed that Congress overreached in fashioning the ADA to allow these lawsuits.
The Supreme Court had previously accepted this defense in the context of an employment discrimination case, Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001). As a result of this prior decision, state employees can no longer sue their employers for money damages under Title I of the ADA3.
Title II of the ADA prohibits disability discrimination by state and local governments in their programs and services.4 At issue before the Supreme Court then was the question, did Title II exceed Congress’s power to legislate under the Fourteenth Amendment?
In this instance… no.
In order to decide this question, the Supreme Court referred back to its framework established by the Court’s prior cases. In order to defeat a sovereign immunity defense, the following questions must be asked about Title II and its application to this current case:
1. What is the scope of the constitutional rights in question?
2. Is there a history and pattern of unconstitutional discrimination by the States against people with disabilities?
3. Is the remedy congruent and proportional to the harm it seeks to prevent?
Title II was designed to protect many constitutional rights.
The first step was to identify the scope of the constitutional right in question. In Garrett, the constitutional right at issue for Title I was equal protection. Under an equal protection analysis, states can discriminate on the basis of disability as long as it is rationally related to a legitimate government purpose.
The Supreme Court recognized that Congress did not try to enforce just equal protection with Title II but that other constitutional guarantees were being considered. In this instance, the right of access to the courts implicated the Due Process Clause of the Fourteenth Amendment and the Confrontation Clause of Sixth Amendment. Criminal defendants like Fred Lane have the constitutional right to be present at all stages of trial.5 The Due Process clause required the state to afford civil litigants a meaningful opportunity to be heard by removing obstacles to their full participation in a judicial proceeding.6 The Sixth Amendment guarantees trial by juries and that juries must be composed of a fair cross-section of the community.7 Members of the public have a right of access to criminal proceedings secured by the First Amendment.8
People with disabilities have a right of access to the courts whether they are criminal defendants, civil litigants, members of the jury, or just as members of the public. All are constitutional rights that Congress intended to enforce with Title II of the ADA with respect to the courts.
Congress enacted Title II to address a history and pattern of unconstitutional discrimination by the States against people with disabilities.
The second step was deciding whether there was a history and pattern of unconstitutional discrimination by the States against people with disabilities. Congress can enforce the Fourteenth Amendment only in response to State transgressions.
The Supreme Court acknowledged the historical “backdrop of pervasive unequal treatment in the administration of state services and programs” which led Congress to enact Title II of the ADA. The Supreme Court reinforced this history by recalling its prior court cases where it had found unconstitutional treatment of people with disabilities by state agencies. Then the Court pointed out that the decisions of lower courts had documented a “pattern of unconstitutional treatment in the administration of justice”.
With respect to the current issues before the Court, Congress had learned that many people were being excluded from the courthouses because of their disabilities. Among the examples identified was the “exclusion of persons with visual impairments and hearing impairments from jury service, failure of state and local governments to provide interpretive services for the hearing impaired, failure to permit the testimony of adults with developmental disabilities in abuse cases, and failure to make courtrooms accessible to witnesses with physical disabilities.”
The Supreme Court decided that the history of inadequate provision of public services and access to public facilities was an appropriate reason for Congress to address with the ADA.
The remedy that Congress chose is congruent and proportional to the harm it seeks to prevent.
The only question left for the Supreme Court to consider was whether Title II was an appropriate response to the history and pattern of discriminatory treatment. Congress may legislate beyond what the Fourteenth Amendment actually guarantees only if the legislation exhibits congruence and proportionality to the injury it seeks to prevent or remedy.
The Supreme Court decided that Title II’s requirement of program accessibility was congruent and proportional to its goal of enforcing the right of access to the court. “The remedy Congress chose is… a limited one.” The court pointed out that Title II allows a state to take reasonable measures to remove barriers to accessibility but does not mandate the state to absolutely employ all possible means to make their services accessible to people with disabilities. It does not force a state to compromise its eligibility criteria for its programs and services9 . Title II requires a “reasonable modification” only when it would not fundamentally alter the nature of the services provided10 , and the individual seeking the modification must still otherwise be eligible for the service.
The Court identified the duty to accommodate in a court setting as being consistent with the due process principle that the state should afford all individuals a meaningful opportunity to be heard in court. Prior cases recognized that this principle required a state to waive filing fees in certain family law and criminal cases, to provide transcripts to criminal defendants seeking review of their convictions, and to provide counsel to certain criminal defendants. “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.” With this in mind, the Supreme Court reasoned that “Title II’s affirmative obligation to accommodate people with disabilities in the administration of justice” was not so out of proportion to the constitutional harm it seek to prevent.
The Supreme Court concluded that Title II, as it applies to cases that implicate the right of access to the courts, was a valid exercise of Congressional authority to enfoce the Fourteenth Amendment. Therefore, Mr. Lane and Mrs. Jones will be able to be to proceed with their lawsuits without Tennessee being able to assert its sovereign immunity.
However, the Court’s decision in limiting its holding to Title II’s role in enforcing the right of access to the courts has other implications. Title II’s prohibition on disability discrimination in governmental programs and services extends beyond access to the courts. Every time that a different constitutional right is raised, lower courts will still have to analyze on a case by case basis whether Congress had validly exercised its constitutional powers in enacting the ADA. This situation may result in the dissection of Title II’s effectiveness where courts decide that some Title II guarantees warrants a money damage suit while others are thrown out. The ability to sue for money acts as a serious deterrent for a state to violate federal law. Even though George Lane and Beverly Jones have earned a victory today, this case does not prevent a state from attempting to assert a sovereign immunity defense at every opportunity.
1. The Eleventh Amendment provides:
"The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."
2. Section 1 of the Fourteenth Amendment provides:
"...No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Section 5 provides:
"...Congress shall have power to enforce, by appropriate legislation, the provisions of this article"
3. “No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. 12112(a).
4. “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.” 42 U.S.C. § 12132.
5. Faretta v. California, 422 U.S. 806, 819 n. 15 (1975).
6. Boddie v. Connecticut, 401 U.S. 371, 379 (1971).
7. Taylor v. Louisiana, 419 U.S. 522, 530 (1975).
8. Press-Enterprise Co. v. Superior Court of Cal., County of Riverside, 478 U. S. 1, 8–15 (1986).
9. “A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.” 28 C.F.R. § 35.130(b)(8).
10. “A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7).
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This material is provided by the DBTAC National Network of ADA Centers. The DBTAC’s are funded by the National Institute on Disability Rehabilitation and Research (NIDRR), the US Department of Education (Grant # H133A060085), to provide technical assistance, training, and materials on the Americans with Disabilities Act (ADA). The information, materials, and technical assistance provided are intended solely as information guidance and are neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA.
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