The Lane Decision, Sovereign Immunity and Title II of the ADA

On May 17, 2004, the Supreme Court ruled in Tennessee v. Lane, No. 02-1667, 124 S. Ct. 1978, 2004 WL 1085482, that Congress validly exercised its power under the Fourteenth Amendment to abrogate states’ sovereign immunity in suits brought under Title II of the Americans with Disabilities Act involving access to courts. While the Court limited its holding to cases involving access to courts, its expansive analysis documents the history of state-sponsored discrimination against people with disabilities in many different areas and contains broad statements about the careful tailoring of Title II’s requirements generally. These aspects of the decision should prove extremely helpful in defending the constitutionality of other applications of Title II.

• The Facts of Lane
• The Supreme Court's Opinion
• Implications of the Lane Opinion
• Tennessee v. Lane Online Briefing Center

The Facts of Lane

Lane was originally filed by two plaintiffs, George Lane and Beverly Jones. Both use wheelchairs, and they brought suit under Title II of the ADA alleging that, due to their disability, they were denied access to the state court system. Lane was compelled to appear at a second-floor courtroom on a criminal charge of driving while intoxicated. Since the courthouse did not have an elevator, Lane crawled up two flights of stairs to reach the courtroom for his first court appearance. When he returned for a second hearing, however, he refused to crawl or be carried by court personnel. Consequently, he was arrested and jailed for failure to appear. Id. at * 4. Jones, a court reporter, alleged that she was denied opportunities to work and access to the judicial process. Id. Both plaintiffs sought damages.

The State of Tennessee asserted sovereign immunity. The district court denied the state’s motion to dismiss, however, and the state then appealed to the Sixth Circuit. The appellate court affirmed the denial of the motion to dismiss, ruling that Congress in enacting Title II validly abrogated states’ sovereign immunity because 1) the Due Process Clause protects the right of access to the courts; 2) when Congress passed Title II it had collected evidence of physical barriers to government buildings, including courthouses; and 3) such barriers have had the effect of denying people with disabilities due process rights to access services and exercise fundamental rights. 315 F.3d 680 (6th Cir. 2003). The Supreme Court then granted certiorari to decide whether and under what circumstances Title II validly abrogates states’ sovereign immunity.

The Supreme Court’s Opinion

The Supreme Court began its analysis by discussing the large body of evidence that Congress amassed, through legislative hearings and the creation of a special task force gathering evidence from each state, before enacting the ADA. Id. at * 6. The Court noted that Congress’s conclusions based on that record are set forth in hearing transcripts, committee reports, the task force report, and the preamble to the ADA – including the finding that individuals with disabilities have been subjected to a history of purposeful unequal treatment and relegated to a position of political powerlessness in our society, 42 U.S.C. § 12101(a)(7). 2004 WL 1085482, at * 6.

The Court held that Congress unequivocally expressed its intent to abrogate sovereign immunity in the ADA, 42 U.S.C. §12202, and thus the only question was whether it had the authority to do so. Id. The Court reaffirmed its prior rulings that Congress can abrogate states’ sovereign immunity using its power under Section 5 of the Fourteenth Amendment to enforce the substantive guarantees of that Amendment, and that Congress’s Section 5 power includes “the authority both to remedy and deter violation of [Fourteenth Amendment rights] . . . by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text.” Id. at * 7 (citations omitted). The Court added that Section 5 authorizes Congress “to enact prophylactic legislation proscribing practices that are discriminatory in effect, if not in intent, to carry out the basic objectives of the Equal Protection Clause.” Id.

Applying the “congruence and proportionality” test that it had set forth in City of Boerne v. Flores, 521 U.S. 507 (1997), and subsequent cases, the Court first identified the constitutional rights that Congress sought to enforce in enacting Title II. Id. at * 9. The Court observed that Title II, like Title I, seeks to enforce the prohibition on irrational disability discrimination embodied in the Equal Protection Clause. Id. Title II, however, also seeks to enforce “a variety of other basic constitutional guarantees, infringements of which are subject to more searching judicial review.” Id. (citing cases concerning the fundamental rights to vote, to travel, and to have children). These include the right of access to the courts protected by the Due Process Clause and the Sixth Amendment’s Confrontation Clause. Both guarantee a criminal defendant the right to be present at all stages of a trial where his absence might frustrate the fairness of the proceedings, and the Due Process Clause also guarantees certain civil litigants a “meaningful opportunity to be heard” by requiring removal of obstacles to their full participation in judicial proceedings. The Sixth Amendment also guarantees criminal defendants the right to a trial by jury composed of a fair cross section of the community, and the First Amendment gives members of the public a right of access to criminal proceedings. Id.

The Court then moved to the second prong of the Boerne test, looking at the history of constitutional violations that Congress sought to address. The Court recognized that “Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systemic deprivations of fundamental rights.” Id. at * 10. Significantly, the Court did not focus just on the history of deprivation of access to courts, but rather identified a broad range of deprivations in different areas. The Court cited state statutes that categorically disqualify “idiots” from voting without regard to individual capacity, state prohibitions on marriage by individuals with mental disabilities, and prohibitions on individuals with various disabilities serving as jurors. Id.

In addition, the Court cited a series of its own cases reflecting unconstitutional treatment of people with disabilities by state agencies, including Jackson v. Indiana, 406 U.S. 715 (1972) (unjustified commitment); Youngberg v. Romeo, 457 U.S. 307 (1982) (abuse and neglect of individuals in state hospitals); Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985) (irrational discrimination in zoning restrictions). Finally, the Court noted that the decisions of other courts also “document a pattern of unequal treatment in the administration of a wide range of public services, programs, and activities, including the penal system, public education, and voting” as well as in court access. Id. (citations omitted). Significantly, not all of the lower court decisions concluded that the conduct involved was unconstitutional. See, e.g., New York ex rel. Spitzer v. County of Delaware, 82 F. Supp.2d 12 (N.D.N.Y. 2000) (lack of access to county polling places for individuals with mobility impairments violated ADA); Galloway v. Superior Court of District of Columbia, 816 F. Supp.12 (D.D.C. 1993) (categorical exclusion of individuals with blindness from jury service violated ADA).

The Court added that the pattern of disability discrimination identified by Congress had persisted despite federal and state legislative efforts to address it, and that Congress had identified important shortcomings in existing laws that made it necessary to pass the ADA. Id. at * 11 (citing statements in ADA committee reports). Further evidence of the shortcomings of these laws was uncovered in the hundreds of examples of unequal treatment of people with disabilities by states and their political subdivisions. Id. (citing the examples in the appendix to Justice Breyer’s dissent in Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 379 (2001), and in the United States’ Lodging in Garrett). The Court also discussed the evidence Congress heard concerning the exclusion of people with disabilities from courthouses and court proceedings detailed in the report of the United States Civil Rights Commission, Accommodating the Spectrum of Individual Abilities 39 (1983), in Congressional hearing testimony, and in the evidence collected by the Task Force on the Rights and Empowerment of People with Disabilities. 2004 WL 1085482, at * 11.

In considering the evidence of unconstitutional treatment of people with disabilities, the Court looked at local government conduct as well as state conduct. In response to the criticism in Chief Justice Rehnquist’s dissent that such evidence was not relevant to the inquiry into whether legislation is valid under Section 5 of the Fourteenth Amendment, the majority said that: (1) local government conduct is particularly relevant in the context of courthouse access because, in that area, local governments are typically treated as an arm of the state for Eleventh Amendment purposes and enjoy the same immunity as states; and (2) even outside of that context, the Court’s prior cases have recognized that local government conduct is relevant to the Section 5 inquiry. Id. * 11 n. 16.

Finally, the Court compared the record supporting Title II to the record of sex discrimination it had found sufficient to uphold the Section 5 basis of the family leave provision of the Family and Medical Leave Act in Nevada Dep’t of Human Resources v. Hibbs, 538 U.S. 721 (2003). The Court observed that Title II is “aimed at the enforcement of a variety of basic rights . . . that call for a standard of judicial review at least as searching, and in some cases more searching, than the standard that applies to sex-based classifications.” In any event, the Court said, “the record of constitutional violations in this case . . . far exceeds the record in Hibbs.” Id. at * 12.

The Court concluded the second step of its analysis by noting that Congress had included a finding in the text of the ADA, based on the evidence of unconstitutional conduct it had gathered, that “[D]iscrimination against individuals with disabilities persists in such critical areas as . . . education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.” 42 U.S.C. § 12101(a)(3). This finding, together with the extensive underlying record of discrimination, “makes clear beyond peradventure that inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation.” 2004 WL 1085482, at * 12.

In the third step of the Boerne inquiry, the Court concluded that Title II is a congruent and proportional response to the history of unconstitutional conduct identified by Congress. At the outset, the Court considered the scope of the congruence and proportionality determination, holding that it must be made with respect to the particular application of the ADA at issue. It rejected Tennessee’s argument that the whole of Title II must be considered and that Title II’s breadth (applying not only to public services, such as education and voting, but also to state-owned facilities, such as hockey rinks, for example) demonstrates that it is not appropriately tailored to serve its objectives. The Court stated that “nothing in our case law requires us to consider Title II, with its wide variety of applications, as an undifferentiated whole.” Id. at * 13. Because it found that Title II is valid Section 5 legislation “as it applies to the class of cases implicating the accessibility of judicial services,” the Court held that it did not need to go any further. Id.

The Court then analyzed Title II’s requirements and concluded that they were congruent and proportional to its goal of enforcing the right of access to the courts. Considering the long history of unequal treatment of people with disabilities in judicial services and the persistence of this problem despite other legislative efforts, Congress was justified in concluding that prophylactic measures were necessary. The Title II remedy of “program access” was an appropriate response. Id.

This remedy is a limited one, said the Court, requiring states to take reasonable measures to remove barriers to accessibility but not compromising states’ eligibility criteria for public programs. Title II requires only “reasonable modifications” that would not result in an undue burden or fundamental alteration, and the modification requirement can be met in a variety of different ways, including non-structural changes where inaccessible facilities were constructed before 1992. The Court found the duty to accommodate “perfectly consistent” with the due process principle that “within the limits of practicability, a State must afford to all individuals a meaningful opportunity to be heard” in its courts.” Id. at * 14. (citations omitted). The Court had recognized a number of affirmative obligations that flow from that principle, such as the duty to waive filing fees for indigent individuals in certain cases. Thus, Title II’s affirmative obligation to accommodate people with disabilities in the administration of justice was not “so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” Id. (quoting Boerne, at 532).

Justices Souter and Ginsburg joined the majority opinion, but both also wrote separate concurrences to emphasize particular points. Justice Souter, in a concurrence joined by Justice Ginsburg, stressed the role of the judiciary itself in endorsing the basis for some of the discrimination that Congress was attempting to remedy. 2004 WL 1085482, at * 15. Justice Ginsburg, in a concurrence joined by Justices Souter and Breyer, stressed the need for an accommodation requirement as a prophylactic measure. She described Congress’s understanding that making people with disabilities equal citizens “would sometimes require not blindfolded equality, but responsiveness to difference; not indifference, but accommodation.” Id. at * 16. She noted that, in Olmstead v. L.C., 527 U.S. 581 (1999), the Court had embraced a “more comprehensive view of the concept of discrimination” including failure to accommodate.

Justice Rehnquist, joined by Justices Kennedy and Thomas, filed a dissenting opinion arguing that the majority had failed to identify anything in the legislative record that demonstrates that Congress was responding to widespread violations of the Due Process Clause, that the majority relied on wide-ranging evidence of discrimination against people with disabilities in many contexts that would only be relevant if the Court were considering the statute as a whole rather than the limited application of access to courts, and that the majority’s evidence consisted of “the same type of outdated, generalized evidence” that the Court had rejected in Garrett. Id. at * 19. Moreover, Justice Rehnquist wrote, much of the discrimination did not involve unconstitutional conduct by states, according to the Chief Justice. The bulk of the evidence involved local government conduct, which the Court had previously held to be irrelevant in Eleventh Amendment immunity cases. Id

Justice Scalia filed a dissenting opinion noting that he would no longer follow the “congruence and proportionality” test because it had proved to be a “flabby” test that “is a standing invitation to judicial arbitrariness and policy-driven decisionmaking.” Id. at * 28. In addition, he said, the test casts the Court as Congress’s taskmaster, regularly checking “Congress’s homework.” Id. Justice Scalia further disagreed with the Court’s prior precedents interpreting Congress’s Section 5 power to “enforce” the guarantees of the Fourteenth Amendment to permit Congress to prohibit a broader range of conduct than the Constitution does.

Implications of the Lane Opinion

While the Court limited its ruling to issues involving access to courts, much of the opinion discusses Title II in a broader way. In fact, most of the opinion reads as if the Court were considering the Section 5 validity of all of Title II.

For example, the analysis focuses very broadly on the history of unconstitutional discrimination against people with disabilities in a wide variety of areas, including voting, education, institutionalization, marriage and family rights, prisoners’ rights, access to courts, zoning restrictions, and other areas. The Court’s review of unconstitutional conduct in all of these areas should prove helpful in defending the constitutionality of other applications of Title II for at least two reasons. First, the opinion supports the argument that there is a strong record of unconstitutional conduct in each of these areas. Second, the Court’s refusal to confine its analysis of the history of discrimination to access to courts issues makes clear that the proper analysis is to look at the history of all unconstitutional conduct supporting the statute and not merely the history of the type of conduct at issue.

The Court’s analysis of the congruence and proportionality of Title II also dealt very broadly with Title II’s requirements. Rather than discuss particular applications of Title II in the context of courthouse access, the Court discussed the requirements of “program access” and reasonable modification generally and observed that Title II’s requirements are limited, carefully tailored, and reasonable in numerous ways.

Further, while the Court did set forth the standards for constitutional violations in the context of issues involving access to courts, it did not appear to require a detailed analysis of whether each instance of discrimination identified in other areas must amount to a constitutional violation. Some of the case law cited by the Court does not contain specific conclusions that constitutional violations occurred – and many of the cases merely involve statutory claims. Indeed, some of the cases cited hold that no constitutional violation occurred. Thus, the Court’s analysis suggests that Congress has some latitude to consider discriminatory conduct, at least in areas involving fundamental rights, without a detailed analysis of whether that conduct would actually violate the Constitution in each case.

Finally, the Court’s departure from its rule in Garrett excluding consideration of local government conduct when determining whether abrogation is warranted is extremely important. In certain areas, such as voting and education, local government entities bear the lion’s share of responsibility. The Court’s decision in Lane makes clear that local conduct may be considered in evaluating other applications of Title II, since Title II was specifically directed at the activities of government entities rather than merely at placing states on the same footing as private entities. Additionally, the Court disposed of the argument, consistently raised by states in abrogation cases, that state laws are sufficient to remedy any constitutional problems.

Because of the broad language in the Court’s opinion, advocates should be able to use Lane to argue that other applications of Title II are valid Fourteenth Amendment legislation. To be sure, many issues remain to be decided in the wake of Lane. Yet it is encouraging that the Supreme Court appears to be headed in a new direction in considering Congress’ powers to legislate under the Fourteenth Amendment.

© Bazelon Center for Mental Health Law, 2004. You may reprint and distribute this document only with appropriate attribution and a link to our website.