Legal Theories Behind State Challenges to the Constitutionality of Title II of the ADA (and Section 504)

Memorandum

To:         Disability Rights Advocates
From:  Ira Burnim, Jennifer Mathis & Mary Giliberti

Posted 6/5/00

Introduction

The legal theories behind state challenges to Title II of the ADA are, unfortunately, complex. At their core, they all challenge Congress' power under the Constitution to impose on states broad bans on disability discrimination, including the requirement that states reasonably accommodate people with disabilities.

As you know from high school civics, Congress may legislate only when the Constitution provides a specific grant of power to do so. (In other words, the federal government is a government of "limited powers" granted by the Constitution.) In enacting the ADA, Congress invoked two of its powers: (1) the power to enforce the Equal Protection Clause of the Fourteenth Amendment "through appropriate legislation" — a power specifically granted in Section 5 of the Fourteenth Amendment, and (2) the power to regulate interstate commerce — known as the "commerce power" and granted by the "Commerce Clause." Congress used its "spending power" to enact Section 504 of the Rehabilitation Act, which bans disability discrimination by public entities receiving federal funds. Under the spending power, Congress can attach "strings" to grants of federal money, such as: "if you take this money, you may not discriminate on the basis of disability."

The question is: did Congress exceed the limits of its powers when it passed Title II of the ADA and when it passed Section 504?

Below is a short guide to the legal arguments of the "states' rights" opponents of Title II and Section 504. We discuss the arguments being made with respect to (a) Congress' power to enforce the Fourteenth Amendment "through appropriate legislation," granted in Section 5 of the Amendment, (b) its power to regulate interstate commerce, and (c) its spending power. Note: while we disagree with these arguments, we think you should be aware that they are gaining ground in the federal courts.

Before we begin our guide, however, you need to be aware of a complication — the Eleventh Amendment to the Constitution. The law regarding the Eleventh Amendment is convoluted. Fortunately, you don't need to know much about it to understand the arguments outlined here. It is useful to keep two features of this law in mind: (1) generally, you can't sue a state for money damages, unless you are suing under a civil rights statute that Congress enacted under Section 5 of the Fourteenth Amendment, but (2) generally, you can sue for an injunction against a state official to stop the official's violation of a civil rights statute, if the statute under which you are suing is within Congress' power to enact.⁽¹⁾

The Fourteenth Amendment

The argument that Congress exceeded its power under the Fourteenth Amendment⁽²⁾ when it enacted Title II of the ADA is based on the case of City of Boerne v. Flores, 521 U.S. 507 (1997).⁽³⁾ In that case, the Supreme Court held that the Fourteenth Amendment gives Congress the power to enact civil rights statues only if (a) the statute is designed to remedy a history of unconstitutional conduct and (2) the remedy contained in the statute — for example, requiring states to make reasonable accommodations — is "proportionate" to the history of constitutional violations.⁽⁴⁾

Relying on City of Boerne, states have argued that Title II is not designed to remedy a record of unconstitutional discrimination by states against people with disabilities. The opponents argue that there is no such history, despite Congressional findings to the contrary. According to the opponents, there may have been discrimination, but the discrimination did not violate the constitution or was not widespread. Moreover, the opponents say, even if there was a record of unconstitutional discrimination, the ADA is not a "proportionate" response. Congress "went overboard" and imposed obligations on states that are "excessive."

Opponents acknowledge that, when Congress legislates to enforce the Fourteenth Amendment, it can outlaw conduct that is not itself unconstitutional and impose requirements not contained in the constitution itself. However, they note, Congress can do so only in limited circumstances. Congress can "prohibit a somewhat broader swath of conduct" than that prohibited by the constitution, but only for the purpose of remedying or deterring unconstitutional conduct.⁽⁵⁾ According to opponents, however, the broad proscriptions against discrimination in Title II of the ADA, including the requirement to make reasonable accommodations, neither remedies nor deters constitutional violations. Instead, under the guise of enforcing the Fourteenth Amendment, Title II seeks to rewrite the substance of the Amendment itself — something that is beyond Congress's authority.

Although the opponents' argument has failed in most federal appeals courts,⁽⁶⁾ it has succeeded in the U.S. Court of Appeals for the Eighth Circuit, which includes the states of Minnesota, North and South Dakota, Iowa, Nebraska, Missouri, and Arkansas. In a recent case, that court declared Title II unconstitutional on the ground that Congress lacked authority under the Fourteenth Amendment to impose on the states a broad ban on disability discrimination.⁽⁷⁾ In addition, the U.S. Court of Appeals for the Fourth Circuit, which includes the states of Maryland, Virginia, West Virginia, and North and South Carolina, recently held part of Title II unconstitutional. The court ruled that the Title II regulation prohibiting states from imposing surcharges to recoup the cost for reasonable accommodations is unconstitutional to the extent it requires states to provide free handicapped parking placards.⁽⁸⁾

In light of the conflict among the federal circuit courts, and the Supreme Court's recent decision in Kimel v. Florida Bd. of Regents, No. 98-791 (Jan. 11, 2000) (declaring that Congress lacks authority under the Fourteenth Amendment to impose the Age Discrimination in Employment Act on states),⁽⁹⁾ we believe the Court is likely to take a case, within the next 12 months, raising the issue of whether Congress exceeded its power under the Fourteenth Amendment when it enacted Title II.

The Commerce Power

If the Supreme Court decides that Congress lacked the power to enact Title II under the Fourteenth Amendment, the Court could still find that Congress had the power under the Commerce Clause to enact Title II. However, if we must look to the commerce power as the source of Congress' authority, one significant battle will have already been lost: plaintiffs' right to sue for money damages for Title II violations would be seriously curtailed. The reason is the Eleventh Amendment, which protects states from suits for money damages. When Congress is legislating under the Commerce Clause, it cannot strip states of their "sovereign immunity" from suits for money damages. Congress can only do so when legislating under the Fourteenth Amendment.⁽¹⁰⁾

Therefore, if we lose the Fourteenth Amendment argument, people injured as a result of a Title II violation could not sue states for money damages, even if they could prove a violation of Title II. Nonetheless, because of the convolutions in Eleventh Amendment law, it may be possible for injured plaintiffs to get money damages by suing state officials in their "individual capacity." They would have to show that these officials were personally responsible for their injuries and that the officials knew or should have known that their conduct violated Title II. This path, however, is uncertain.

The question of whether Congress has the power under the Commerce Clause to enact Title II has not been much litigated, and there is no federal appeals court decision addressing the matter. For now, states are focusing on the Fourteenth Amendment issue. They will move on to the Commerce Clause issue if they succeed with their Fourteenth Amendment argument.

Opponents' argument that Congress is not empowered by the Commerce Clause to enact Title II has two branches. First, opponents argue that principles of federalism bar Congress, when legislating under the Commerce Clause, from imposing on states expansive requirements about how they conduct their governmental operations.⁽¹¹⁾ Second, opponents argue that, even if Congress has such power, Title II does not involve the kind of activity that Congress has the power to regulate under the Commerce Clause. In other words, the government activities that are regulated by Title II do not "affect" interstate commerce.⁽¹²⁾

The opponents' argument, we believe, clearly fails under current Supreme Court law.⁽¹³⁾ However, the Court has shown an inclination to change the law in this area to enhance states' rights.⁽¹⁴⁾ Accordingly, there could be danger ahead.⁽¹⁵⁾

The Spending Power

If Title II is declared unconstitutional because it is beyond Congress' power under the Fourteenth Amendment and the Commerce Clause, then we will have to fall back once again on Section 504 of the Rehabilitation Act, which prohibits disability discrimination in programs that receive federal money, including programs operated by state and local governments.

Section 504 was enacted under Congress' spending power. It has long been thought that Congress has expansive powers to "attach strings" to grants of federal money, including grants to states. While the Supreme Court has indicated that there are limits to this power,⁽¹⁶⁾ these limits never seemed an obstacle to conditioning grants of federal money on states' compliance with specific civil rights obligations, such as those contained in Section 504 of the Rehabilitation Act.

However, it appears that, with the federal judiciary becoming increasingly responsive to states' rights arguments, some courts are prepared to rethink the limits of the spending power. Recently, the U.S. Court of Appeals for the Eighth Circuit declared Section 504 unconstitutional as applied to the states because it exceeded Congress' spending power.⁽¹⁷⁾ Essentially, the court imported into this area of law a kind of "proportionality" test of the type now being used to examine whether Congress has exceeded its power under the Fourteenth Amendment.

It is hard to predict the future course of the law here. Under existing Supreme Court interpretations, we believe, Section 504 is constitutional. However, here as in other areas the Supreme Court may decide to change its interpretation of Congress' power in an effort to enhance states' rights.⁽¹⁸⁾ If it does, the result could be dire for Section 504.

Questions and Comments

If you have questions, or ideas that you wish to share, please contact us by e-mail or telephone (202-467-5730).

Developments

The Bazelon Center will keep advocates informed of significant developments in the law relating to Title II's constitutionality.

Notes

1. See Alden v. Maine, 119 S. Ct. 2240 (1999); Ex Parte Young, 209 U.S. 123 (1908).

2. Section 5 of the Fourteenth Amendment gives Congress the authority to enact "appropriate" legislation to enforce the Amendment's guarantees, including the right to equal protection of the laws.

3. Also, Court recently spoke to this issue — albeit in dicta — in Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119 S. Ct. 2199 (1999).

4. The Court recently called this test the "congruence and proportionality" test. Kimel v. Florida Bd. of Regents, No. 98-791 (Jan. 11, 2000)

5. Kimel v. Florida Bd. of Regents, No. 98-791 (Jan. 11, 2000). Civil rights legislation intended to deter unconstitutional conduct is sometimes called "prophylactic" legislation.

6. See, e.g., Dare v. California, No. 97-56065, 1999 WL 717724 (9^th Cir. Sept. 16, 1999); Martin v. Kansas, No. 98-3102, 1999 WL 635916 (10^th Cir. Aug. 19, 1999); Muller v. Costello, No. 98-7491, 1999 WL 599285 (2d Cir. Aug. 11, 1999); Coolbaugh v. Louisiana, 136 F.3d 430 (5^th Cir.), cert. denied, 119 S. Ct. 58 (1998); Kimel v. Florida Bd. of Regents, 139 F.3d 1426 (11^th Cir. 1998), petition for cert. pending sub nom. Florida Dep't of Corrections v. Dickson, No. 98-829; Amos v. Maryland Dep't of Pub. Safety & Correctional Servs., 178 F.3d 212 (4^th Cir. 1999).

7. Alsbrook v. City of Maumelle, 184 F.3d 999 (8^th Cir. 1999) (en banc).

8. Brown v. North Carolina Div. of Motor Vehicles, 166 F.3d 698 (4^th Cir. 1999), petition for cert. pending, No. 99-424. In a subsequent decision, the Fourth Circuit limited Brown to its facts and upheld the constitutionality of Title II in another context. Amos v. Maryland Dep't of Pub. Safety & Correctional Servs., 178 F.3d 212 (4^th Cir. 1999). That limiting decision, however, is about to be reconsidered — and hence may be reversed — by the Fourth Circuit sitting en banc (all the judges of the court, not the usual three judge panel).

9. Central to the outcome in Kimel was the Court's view that older persons, "unlike those who suffer discrimination on the basis of race or gender, have not been subjected to a history of 'purposeful unequal treatment.'" Kimel v. Florida Bd. of Regents, No. 98-791 (Jan. 11, 2000). People with disabilities have plainly experienced a "a history of purposeful unequal treatment"and this circumstance both clearly distinguishes the ADA from the ADEA and argues strongly in favor of the constitutionality of Title II.

10. Seminole Tribe v. Florida, 517 U.S. 44 (1996).

11. See Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992). The Court's recent cases limiting Congress' power to regulate state activity using the Commerce Clause have relied on the Tenth Amendment. Earlier cases did not specifically invoke the Amendment. Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985).

12. See United States v. Lopez, 514 U.S. 549 (1995).

13. See Katzenbach v. McClung, 379 U.S. 294 (1964).

14. Seminole Tribe v. Florida, 517 U.S. 44 (1996), overruling Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989).

15. Cf. Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, (1997) (injunctive relief unavailable under Ex Parte Young doctrine when it "implicates special sovereignty interests" of state). But see Reno v. Condon, No. 98-1464 (Jan. 12, 2000) (upholding constitutionality of the Driver's Privacy Protection Act).

16. See South Dakota v. Dole, 483 U.S. 203 (1987); Pennhurst State. Sch. & Hosp. v. Halderman, 465 U.S. 123 (1984).

17. Bradley v. Arkansas Dept. of Education, 189 F.3d 746 (8^th Cir. 1999).

18. See Florida Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank,119 S. Ct. 2199, 2231 (1999).

This memo was prepared with support from the Advocacy Training/Technical Assistance Center (ATTAC) of NAPAS, a federal interagency project of the Administration on Developmental Disabilities, the Center for Mental Health Services, and the Rehabilitation Services Administration. The Bazelon Center provides legal back-up and technical assistance to P&As under a contract with NAPAS.