Supreme Court Upholds ADA Title II Protection Of Access To Court Facilities
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The decision, Tennessee v. Lane, 2004 WL 1085482 (May 17, 2004), redraws the boundaries between state sovereign immunity from private lawsuits under the eleventh amendment and Congressional authority to enforce the fourteenth amendment. In effect, the Tennessee majority tempers the expansion of state sovereignty originated in Seminole Tribe v. Florida, 517 U.S. 44 (1996) and the contraction of Congress’ fourteenth amendment enforcement authority in Boerne v. Flores, 521 U.S. 507 (1997). In SeminoleTribe, the Court held that only the fourteenth amendment, not the commerce clause or other Article I provisions, gives Congress the power to abrogate state sovereign immunity from private damage suits. In Boerne the Court introduced a doctrinal formula purporting to narrow Congress’ authority to disturb state prerogatives, by requiring that fourteenth amendment enforcement legislation under section five of the amendment constitute a “congruent and proportional” response to demonstrated state violations of the substantive provisions of section one.
One year ago, in Nevada Dept. of Human Resources v. Hibbs, 583 U.S. 721 (2003), the Court signaled that, given its current membership, a majority cannot be assembled to carry the strict logic of the Boerne standards to extreme logical endpoints in all cases. The new decision strengthens and clarifies that signal.
In Hibbs, the Court, in a 6-3 opinion by Chief Justice Rehnquist, surprised observers by validating private damage suits against states under the federal Family and Medical Leave Act. Prior to Hibbs, a bare majority sometimes labeled the “Federalism Five” – Chief Justice Rehnquist and Justices Scalia, Thomas, Rehnquist, and O’Connor – had upheld immunity and struck down federal laws authorizing private damage actions in every case applying the Boerne fourteenth amendment jurisprudence. In these cases, the four dissenters – Justices Stevens, Souter, Ginsburg, and Breyer – remained equally firm in their disapproval of the new doctrine. They insisted that the majority’s solicitude for state governments in Boerne and related cases was not only incorrect but invalid as precedent: “judicial activism [that] represents such a radical departure from the proper role of this Court that it should be opposed whenever the opportunity arises.” Kimel v. Florida Board of Regents, 528 U.S. 62, 99 (2000) (Stevens, J., dissenting) (Kimel held that the Age Discrimination in Employment Act of 1967 is unenforceable by private damage actions.)
However, Tennessee v. Lane may reflect, not simply a fracturing of the Federalism Five in this case and in Hibbs, but a new strategic realignment. If this alignment holds, Justice O’Connor has joined the erstwhile dissenters in a sort of grand compromise. The new majority embraces the Boerne “congruent and proportional” doctrinal framework, while giving its terms a comparatively flexible interpretation that accommodates Title II of the ADA, the FMLA, and, presumably, similar statutes purporting to “enforce” the fourteenth amendment. In Hibbs, the former dissenters – Breyer, Ginsburg, Souter, and Stevens – issued concurring opinions specifically reaffirming their dissent from Kimel, Garrett, Boerne, Seminole Tribe, and related cases; in Tennessee, Stevens actually wrote the majority opinion, in which Breyer joined without comment; Souter and Ginsburg wrote subdued concurring opinions that reiterated their objections to the earlier cases but accepted the Boerne standards as applied by Stevens. Moreover, in Tennessee, the Federalism Five majority has splintered on the right as well as the left; Justice Scalia’s lengthy dissent disowns the Boerne approach to construing section five enforcement authority as too “flabby.” Justice Scalia seems to say that, if the “congruent and proportional” test can be applied to uphold “prophylactic” federal enforcement laws as well as to invalidate them, then he will no longer have any part of that approach.
Going forward, the broad question, of course, is what are the contours of the freshly redrawn lines?
Obviously, the place to begin looking for answers is in the case itself. At issue in Tennessee was Congress’ authority to authorize private damage actions to enforce Title II of the ADA, which provides (in 42 U.S.C. §12132) 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.” Three years ago in Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001), the Federalism Five majority barred private suits against state governments to enforce Title I of the ADA, which bans employment discrimination on grounds of disability. In Tennessee, the plaintiffs, both paraplegics, sued the state under ADA Title II for failing to equip courthouses with elevators or other apparatus necessary to enable them to access court proceedings in their wheelchairs. Affirming a Sixth Circuit decision for the plaintiffs, the Supreme Court applied the Boerne regime for interpreting the enforcement provisions of section five of the fourteenth amendment. Under the Boerne approach, section five authorizes enforcement legislation (i) only in response to specific, identifiable, substantial state governmental violations of the substantive provisions in section one of the fourteenth amendment, and (ii) only if the legislation is a “congruent and proportional” response to these particular violations.
The Court gave several reasons why private damage actions could be “congruent and proportional” under Title II but not Title I. At some length, Justice Stephens’ opinion for the Court contended that evidence from Congressional and other official hearings, and in court decisions, of state discrimination against the disabled in providing access to public facilities, was stronger than evidence reviewed in Garrett of discrimination against disabled state employees. In addition, following the Sixth Circuit, the Court stressed that denial of access to public facilities, specifically to court proceedings, violated the plaintiffs’ rights to due process of law under the due process clause of the fourteenth amendment, not merely their nondiscrimination rights (such as they might be) protected by the equal protection clause. This distinction was critical, the Court argued, because these due process rights are more fundamental, and hence give Congress more leeway to safeguard than the employment nondiscrimination rights addressed by Title I. Because Congress found, with substantial evidentiary support, “extensive . . . disability discrimination” in “access to public services,” the Court held, Congress was entitled, under the “congruent and proportional” Boerne standard, to enforce nondiscriminatory access on a “prophylactic” basis –i.e., to permit damage recovery for denials of such access, even when a particular denial might in and of itself not constitute a constitutional violation. Despite the potentially broad implications of his allusions to the scope, quantity, and quality of evidence of disability discrimination, Justice Stevens made crystal-clear that the specific holding in Tennessee v. Lane covers little more than the facts of that case:
“. . . .[T]he question presented in this case is not whether Congress can validly subject the States to private suits for failing to provide reasonable access to hockey rinks, or even to voting booths, but whether Congress had the power under §5 to enforce the constitutional right of access to the courts. Because we find that Title II unquestionably is valid §5 legislation as it applies to the class of cases implicating the accessibility of judicial services, we need go no further.”
No doubt, this tight limitation was a key factor in Justice O’Connor’s decision to join the majority.
Nevertheless, Tennessee v. Lane is surely a momentous ruling – if only because of what the alternative would have meant: that in the 21 st century, American state governments have no obligation to ensure nondiscriminatory access by a disabled citizen to his or her own trial, or at the very least, that Congress is substantially powerless to enforce any such right even if it exists in an abstract or theoretical sense.
How much more than its holding does Tennessee v. Lane portend? To begin with the obvious, litigants would be well advised not to rush to court challenging denials of access to state controlled recreational facilities, e.g., the “hockey rink” hypothetical in Justice Stephens’ argument above. At the other extreme, Title II guarantees of access to state electoral procedures (voting booths) would seem comparatively easy to analogize to court procedures. The difficult, and potentially painful cases will be in between, involving state facilities and services essential to participation in society but not necessarily to participation in processes of government itself, such as transportation or even education. In such areas, it is not inconceivable that a majority of the current Court could hold that Congress’ only option for ensuring equal access is spending clause-based legislation. In this regard, the decision reinforces the magnitude of the threat posed by efforts to narrow or choke off altogether private rights of action to enforce conditions in federal spending clause legislation (such as the Rehabilitation Act, which finances state enhancements to benefit disabled citizens, subject to conditions similar to those in the ADA).
Also noteworthy for the future is that the Tennessee v. Lane majority gave Congress credit for the fact that “The ADA was passed by large majorities . . . after decades of deliberation and investigation into the need for comprehensive legislation [including] 13 hearings and . . . a special task force that gathered evidence from every State in the Union.” In previous section five cases, particularly Garrett, Kimel, and United States v. Morrison, 529 U.S. 598 (2000) (invalidating the Violence Against Women Act), the Court had contemptuously dismissed large volumes of evidence supporting congressional judgments as, among other things, “anecdotal,” “unsystematic,” “outdated,” inapposite for hyper-technical reasons, or conceptually inappropriate. Now that the Court has taken Congress’ fact-gathering efforts seriously and evaluated them sympathetically, the implication may be that, after all, supporters of future civil rights legislation will find it worthwhile to help ensure that Congress does its investigational and drafting homework.
In the long run, the most significant question left open by this decision may be the scope of state substantive obligations (or citizens’ correlative rights) prescribed by section one of the fourteenth amendment, as distinguished from the scope of congress’ remedial authority under section five to proscribe conduct that, taken alone, would be constitutional. Under the approach advocated by Chief Justice Rehnquist for the minority in Tennessee, in order to qualify as unconstitutional, state discriminatory conduct must be direct, purposeful, and systematic. According to Justice Scalia’s 12 page dissent, except for the historically unique case of massive racial discrimination in the South, the fourteenth amendment imposes on states no affirmative obligation whatsoever to ensure equal access to services or facilities for the elderly, women, disabled, or any other class of citizens, and Congress has no authority to require them to do so. To fend off criticism of their Seminole Tribe-Boerne-Kimel-Garrett jurisprudence, conservative members of the Court have often insisted that barring damage actions to remedy federal rights violations still leaves private citizens with the right to enjoin future state misconduct under the Ex Parte Young doctrine. But as Justice Ginsburg responded to such a disclaimer during the oral argument last January, the minority’s narrow approach to defining fourteenth amendment substantive liability could leave plaintiffs with no illegal conduct to enjoin, even on the comparatively compelling facts of Tennesee v. Lane.