Title II of the Americans with Disabilities Act — Prohibiting Discrimination in the Provision of Public Benefits and Services

(Updated 7/18/06)

Title II of the ADA, located in the United States Code at 42 U.S.C. §§ 12131-34, prohibits discrimination by state and local government agencies. Title II covers all public agencies, whether or not they receive federal financial assistance. It is also helpful to enforce the voting rights of people with disabilities.

Title II employs broad language in outlawing discrimination, stating 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." The Supreme Court has confirmed, in PA Dept. of Corrections v Teskey, 524 U.S. 206 (1998), that this language covers all public entities "without any exception."

A more detailed interpretation of this prohibition is included in Title II's implementing regulations, issued in 1991 by the United States Department of Justice in its capacity as the agency charged with interpreting Title II. These regulations appear in the United States Code of Federal Regulations at 28 C.F.R. Part 35. On its page of extensive resources on the ADA the Justice Department has published a Technical Assistance Manual on Title II with yearly updates, supplements, highlights and a complaint form in English and Spanish.

Noteworthy: In Goodman and the United States v. Georgia, the Supreme Court held that Title II applies to prisoners in state custody,

Using Title II to Challenge Unnecessary Institutionalization and Segregation

One of the most exciting uses of Title II is as a vehicle to end the unnecessary institutionalization and segregation of disabled individuals. ADA regulations specifically direct public entities to "administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." On June 22, 1999, the United States Supreme Court issued its first decision on this rule in a case from the state of Georgia.

In its analysis of this regulation, the Justice Department states: "[T]hese provisions are intended to prohibit exclusion and segregation of individuals with disabilities and the denial of equal opportunities enjoyed by others, based on, among other things, presumptions, patronizing attitudes, fears and stereotypes of individuals with disabilities .... Integration is fundamental to the purposes of the Americans with Disabilities Act. Provision of segregated accommodations and services relegates people with disabilities to second-class status." For more detail on the "integration mandate," see Ira Burnim's November 1998 testimony before a congressional committee.

In additional support of community integration, the ADA's requirement that public agencies make reasonable accommodations in their programs can be interpreted to require the transfer of funds or programming from institutional to community settings. Advocates interested in pursuing a "reasonable accommodation" argument should be aware, however, that a defendant is likely to counter this argument by asserting that such a transfer of resources would amount to a "fundamental alteration" of or "undue burden" on the defendants' program. The ADA states that if a requested accommodation is a "fundamental alteration" or "undue burden," it is not "reasonable," and is not required by the Act.

The "fundamental alteration" and "undue burden" arguments were being made by the state of Georgia in its appeal to the U.S. Supreme Court of L.C. v. Olmstead, 138 F.3d 1485 (11th Cir. 1998).

In a 6-3 opinion authored by Justice Ruth Bader Ginsburg, the Supreme Court affirmed the ruling by the United States Court of Appeals for the Eleventh Circuit that unjustified isolation of individuals with disabilities is properly regarded as discrimination based on disability. The court held that unjustified segregation in institutions is discrimination not only because it perpetuates unwarranted assumptions that people with disabilities are incapable or unworthy of participating in community life, but also because confinement in an institution severely curtails everyday life activities, such as family relations, social contacts, work, educational advancement and cultural enrichment.

See more information about Olmstead and an article about its implementation.

Olmstead is the most prominent in a number of cases in which individuals with disabilities have had increasing success in convincing courts to recognize the ADA's potential as a tool to combat unnecessary segregation. In Olmstead, the Supreme Court took an approach somewhat different from earlier cases, including:

Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995), cert. denied sub nom Pennsylvania Secretary of Public Welfare v. Idell S., 116 S. Ct. 64 (1995), holding that the State of Pennsylvania violated the ADA by confining in a nursing home a plaintiff who did not require nursing home care.

Charles Q. v. Houstoun, No. 1:CV-95-280 (M.D. Pa. April 22, 1996) (two separate decisions). In two decisions relying heavily on Helen L. v. DiDario, the court granted summary judgment for three plaintiffs with mental illness who alleged that the state defendants violated the ADA by treating plaintiffs in a state psychiatric hospital rather than in community settings.

K.L. v. Valdez, No. 93-1359 BB/LCS (D.N.M. Oct. 6, 1995), refusing to dismiss the ADA and Section 504 claims of children with mental, emotional and developmental disabilities who allege that several state agencies provide inadequate care to disabled children who are in or at risk of entering state custody.

Wyatt v. Hanan, No. 3195-N (M.D. Ala. March 6, 1995). In a pretrial ruling in this historic mental disability class action, the court denied plaintiffs' motion for summary judgment regarding their ADA claims, but also stated that the Act "requires that services or programs provided by a public entity 'integrate' qualified disabled individuals with non-disabled persons to the fullest extent appropriate for the disabled and reasonable for a public entity."

Collaboration with Public Agencies

Advocates can also advance the right of people with mental disabilities to non-discriminatory public services through collaboration and non-litigation advocacy with public agencies. Title II requires public agencies to identify their rules, policies and procedures that exclude people with disabilities from participation in public programs and develop plans to eliminate those barriers.

The Bazelon Center conducted a collaborative project with two public agencies and a consumer network in South Carolina, creating a model for agencies' self-evaluation of the barriers they unwittingly erect to access by people with mental illness. A book, Opening Public Agency Doors, documents the project and includes many ideas for increasing access to a wide range of services and benefits. Ordering information appears in our Bookstore.