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Tennessee v. Lane: The Legal Issues and the Implications for People with Disabilities

Thursday, September 4, 2003

Policy Briefing Paper 
National Council on Disability
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 2001.2Garrett 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 byAlden 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,37which 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.125Notably, 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.


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.



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.

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