Narrow but Decisive Victory for People with Disabilities
On May 17, 2004 the Supreme Court held that individuals could sue state governments for money damages when the states violated certain provisions of Title II of the Americans with Disabilities Act. Tennessee v. Lane, No. 124 S.Ct. 1978 (2004).
Title II of the ADA prohibits discrimination against people with disabilities in public programs or services and provides that states are not immune from claims under Title II. Lane involved six individuals who had been unable to access state court facilities and services because of their disabilities. The lead plaintiff, who has paraplegia, had been forced to crawl up two flights of stairs to reach the courtroom because the building had no elevator. When he refused to do the same for a second hearing, he was arrested. Lane, 124 S.Ct. at 1982. Plaintiffs filed an action for damages and equitable relief, alleging that Tennessee denied them physical access to the State?s courts in violation of Title II. Id. The state moved to dismiss the case on the grounds that Title II exceeds Congress? legislative powers. The district court denied the motion and the state appealed. Id., at 1983. Previously, the Sixth Circuit en banc, in Popovich v. Cuyahoga County Court, 276 F.3d 808 (6th Cir. 2002), had held that ADA suits based upon equal protection principles were barred by the Eleventh Amendment, but cases based upon due process principles were not. Citing Popovich, the Sixth Circuit affirmed the denial of the state?s motion in Lane, holding that the ADA claims were not barred because they were based upon due process principles. The state petitioned for certiorari. Id. In a 5-4 decision written by Justice Stevens, the court held that, for the class of cases implicating the fundamental right of access to the courts, Title II constitutes a valid exercise of Congress' authority under § 5 of the Fourteenth Amendment.
Applying the now-familiar test, the court determined, first, whether Congress unequivocally expressed its intent to abrogate and, second, whether it acted pursuant to a grant of constitutional authority. Congress may abrogate sovereign immunity when it validly exercises power conferred by § 5 of the Fourteenth Amendment. Id. at 1985. Congress has power to prohibit a broader swath of conduct than that which would violate the Amendment?s text. Its power is limited, however, to legislation that exhibits a ?congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.? Id. In making this second determination, a court must identify the constitutional rights sought to be protected. Id.
The majority easily concluded that Congress clearly expressed its intent to abrogate sovereign immunity. Id. at 1985. Moving on to the second part of the test, the court determined that Congress had sought to enforce a prohibition on disability discrimination. Such legislation passes muster only if the disability discrimination has no rational basis. Id.. at 1988. Application of this ?congruence and proportionality? test had previously eliminated damages suits against states under Title I of the ADA, which prohibits discrimination in employment. Board of Trustees v. Garrett, 531 U.S. 356, 148 L.Ed. 2d 866, 121 S. Ct. 955 (2001). After Garrett, it appeared very unlikely that other titles of the ADA could meet the standards set by ?congruence and proportionality test.? Mindful of the fate of Title I, the majority noted that Title II ?seeks to enforce a variety of other basic constitutional guarantees, infringements of which ae subject to more searching review. Id. at 1988.
The majority then turned to an analysis of the right of access to the court. The majority reasoned that specific right of access to the court was based upon both the due process clause of the fourteenth amendment and the due process clause and confrontation clause of the sixth amendment which guarantee various rights, including the right to be present at crucial stages of a trial and the meaningful opportunity to be heard. Id., at 1988. Moreover, defendants are guaranteed the right to trial by a jury composed of a reasonable cross-section of the community – which is thwarted by the exclusion of ?identifiable segments? such as people with disabilities. Id. The court then turned to the question of the appropriateness of Title II?s remedy.
Evaluating the appropriateness of Title II as a remedy, the majority cited the large amount of evidence Congress considered when enacting it. The majority concluded that Congress enacted Title II against ?a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights.? Id. at 1989. The majority found the evidence in the record, based upon judicial findings of unconstitutional state action as well as statistical, legislative and anecdotal evidence of the widespread exclusion of persons with disabilities from the enjoyment of public services made it ?clear beyond peradventure? that lack of access to public services, programs and facilities was an appropriate subject for legislation. Id. at 1992.
Finally, the majority turned to the question of whether Title II was an appropriate response to the pattern of discrimination. The remedy prescribed is limited; states are only required to make reasonable accommodations and to make reasonable efforts to remove barriers. Thus, the majority held that it is reasonable. Id. at 1993-1994 Because Title II reaches such a wide array of conduct, the majority concluded that it would not consider it ?as an undifferentiated whole.? Id. Declining to consider whether the many applications of Title II were appropriate, the majority chose to answer only the narrow question presented. Id. At 1993. .
Justice Rehnquist, joined by Justices Kennedy and Thomas, dissented. Justice Rhenquist authored the narrow Garrett majority, thus, his dissent highlights the tension between these two ADA opinions. First, the dissent argues that Congress failed to identify a pattern of actual, relevant constitutional violations, taking issue with the majority?s consideration of what the dissent saw as random collection of evidence of discrimination against the disabled. Id. at 1999. Rejecting this evidence as ?outdated? and generalized, the dissent argued that because the evidence related to discrimination other than violation of due process rights and to discrimination by non-state actors, it is irrelevant. Id. Overall, according to the dissent:
[T]here is nothing in the legislative record or statutory findings to indicate that disabled persons were systematically denied the right to be present at criminal trials, denied the meaningful opportunity to be heard in civil cases, unconstitutionally excluded from jury services or denied the right to attend criminal trials.
Id. at 2000 (emphasis original). The dissent also disagrees with the majority?s conclusion that Title II is appropriate legislation, arguing that law subjects states to expansive liability. Id. at 2000. Citing the law?s ?massive overbreadth,? the dissent also takes issue with the decision to consider only the statute?s application to cases implicating rights to the courts. Id. at 2005. ?
In a separate concurrence, Justices Souter and Ginsberg reiterated their continuing disapproval of the ?congruence and proportionality test.? Id. at 1995. Justice Scalia in a dissent, repudiated his former support for the test, arguing that courts should apply simply apply the language of the Fourteenth Amendment, which does not authorize legislation as broad as Title II. Id. at 2007. He noted that he had originally endorsed the congruence and proportionality test ?with some misgiving,? noting that such tests ?have a way of turning into vehicles for the implementation of individual judge?s policy preferences.? Id. at 2008. Reviewing applications of the test – including cases which resulted in upholding legislation – he ruefully
. . . yields to the lessons of experience. The congruence and proportionality standard, like all such flabby tests, is a standing invitation to judicial arbitrariness and policy-driven decisionmaking. Worse still, it casts this Court in the role of Congress? taskmaster. Under it, the courts (and ultimately this Court) must regularly check Congress? homework to make sure that it has identified sufficient constitutional violations to make its remedy congruent and proportional.?