Q & A on Abrogation of 11th Amendment Immunity under Title II of the ADA

TA QUESTION OF THE MONTH
Prepared by the Disabilities Law Project and the Bazelon Center for Mental Health Law
 
Q. In its February 2001 Garrett decision, the Supreme Court chose not to decide whether Congress had the authority to abrogate states? Eleventh Amendment immunity to suits brought under Title II of the ADA. How have the circuit courts dealt with the Title II abrogation issue post-Garrett?
 
A. In Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), the Supreme Court held that Congress lacked authority under Section 5 of the Fourteenth Amendment to abrogate states? Eleventh Amendment immunity to suits brought under Title I of the ADA. In order to enact valid Section 5 legislation that goes beyond the guarantees of the Fourteenth Amendment itself, the Court ruled, Congress must act pursuant to a record of unconstitutional conduct, and the legislation must exhibit ?congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.? See also Kimel v. Florida Bd. of Regents, 528 U.S. 62, 80-81 (2000); City of Boerne v. Flores, 521 U.S. 507, 520 (1997).
In Garrett, the Court opted not to decide whether Congress validly abrogated states? Eleventh Amendment immunity to suits brought under Title II of the ADA. See Garrett, 531 U.S. at 360 n.1. Thus, at least for now, it has been left to the circuit courts to determine this important question. Since Garrett, six of the 12 appellate courts have issued decisions squarely deciding the Title II abrogation question, but no consensus has emerged from these courts on the issue. Instead, as discussed in more detail below, to date the appellate courts have provided three different answers to the question of whether Title II validly abrogates a state?s immunity: Yes, No, and Sometimes.
A. YES ? Congress validly abrogated states? EleventhAmendment immunity to suits brought under Title II.
1. Hason v. Medical Board of California,
279 F.3d 1167 (9th Cir. 2002)
The only post-Garrett appellate court case holding unequivocally that Congress validly abrogated states? immunity when it enacted Title II is the Ninth Circuit?s decision in Hason v. Medical Board of California. In reaching this conclusion, however, the Ninth Circuit did not engage in any analysis of the abrogation issue in light of the Supreme Court?s discussion in Garrett. Instead, the court said only that 1) the Ninth Circuit had twice decided pre-Garrett that states? immunity had been abrogated by the enactment of Title II; see Dare v. California, 191 F.3d 1167 (9th Cir. 1999), and Clark v. California, 123 F.3d 1267 (9th Cir. 1997); 2) the Supreme Court made clear in Garrett that it was not deciding the Title II abrogation question; and 3) ?[w]e therefore conclude that Garrett does not overrule either Clark or Dare and that the Eleventh Amendment does not bar Dr. Hason?s Title II claims.? Hason, 279 F.3d at 1170-71. Given this cursory handling of the abrogation question, the persuasive value of Hason outside of the Ninth Circuit is questionable. 
B. NO ? Congress did not validly abrogate states? Eleventh
Amendment immunity to suits brought under Title II.
Both the Fifth Circuit and the Tenth Circuit have held that Congress did not validly abrogate states? immunity when it enacted Title II of the ADA. 
1. Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001)
In Reickenbacker, the Fifth Circuit ? in contrast to the Ninth Circuit ? re-analyzed the abrogation issue despite a prior decision holding that Title II did validly abrogate Eleventh Amendment immunity (Coolbaugh v. Louisiana, 136 F.3d 430 (5th Cir. 1998)).  The court noted that Garrett and Kimel represented a tightening of the law related to abrogation and held that, in light of those more recent decisions Coolbaugh was no longer good law.
According to the Fifth Circuit, Title II fails both parts of the Boerne/Kimel/Garrett abrogation test. First, the court held that Congress failed to make ?the requisite findings of state discrimination? against persons with disabilities. Reickenbacker, 274 F.3d at 982. The court stated that most of the Title II legislative history referred to discrimination by local entities rather than state government and that, in any event, ?many of the findings to which we are referred by the plaintiffs describe facially neutral state policies that are unlikely to represent unconstitutional discrimination.? Id. Interestingly, the court argued that the appendix to Justice Breyer?s dissent in Garrett, which was offered to show an extensive record of discrimination by the states, is more helpful to states that to plaintiffs with disabilities.
The word ?inaccessible,? without more, in this context, is synonymous with ?constitutional? as it implies a facially neutral state policy without evidence of discriminatory intent. ?Inaccessible? appears over 250 times in Justice Breyer?s list of ?roughly 300 examples of discrimination by state governments.? The plaintiffs cite to this list as providing life to their claim that there are sufficient Congressional findings of discrimination in public accommodation. In fact, this list is fatal to the plaintiffs? case, because it catalogs presumptively constitutional state action.
Id. at 982 n.62 (citation omitted).

Second, the Fifth Circuit held that Title II fails the ?proportional and congruent? test imposed by the Supreme Court. ?Title II indisputably embodies more than merely a prohibition on unconstitutional conduct against the disabled? and instead ?create[s] an affirmative accommodation obligation on the part of public entities that far exceeds the constitutional boundaries.? Id. at 983.
 
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