Fifth Circuit Allows ADA Title II Suit Against State Officials

The Fifth Circuit, over a chilling dissent by a potential Supreme Court nominee, has rejected Texas’ claim that state officials cannot be sued under Title II of the Americans with Disabilities Act, which prohibits discrimination in public services and accommodations.

McCarthy v. Hawkins, ___F.3d.___, 2004 WL 1789945 (5th Cir. 2004).

The plaintiffs, individuals with mental disabilities seeking more community-based living options under Medicaid, sued several Texas state officials, claiming that they had violated the Medicaid statute, the ADA and section 504 of the Rehabilitation Act. The majority followed five other circuit courts in ruling that state officials are proper parties to suits under the ADA, despite the fact that the wording of the statute referred to “public entities.” Because the interlocutory appeal was limited to the issue of sovereign immunity, the majority refused to consider whether plaintiffs’ claims were otherwise valid. The court found that, for the purposes of Ex Parte Young, it need only determine whether plaintiffs alleged a violation of federal law and sought prospective injunctive relief.

However, Judge Emilio Garza, who is reputed to be on President Bush’s short list of Supreme Court nominees, believed that to fit within the Ex Parte Young exception, the plaintiffs must allege violation of a valid federal law. He first examined whether ADA Title II, as applied to state decisions concerning entitlement programs, was a congruent and proportional response to a history of state violations of the 14th Amendment. Garza acknowledged that “Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state services and programs.” Tennessee v. Lane, 124 S.Ct. 1978, 1989 (2004). However, he noted that the Supreme Court identified examples of irrational discrimination against the disabled only in the following categories: voting, marriage, jury eligibility, state mental institutions, zoning decisions, public education, the penal system, and access to the judicial system. Assuming that Congress only had the power under the 14th Amendment to protect the disabled in these categories, Garza found that plaintiffs’ claims did not fit any of them.

Garza also found that Title II of the ADA, as applied to a state’s decisions concerning entitlement programs, does not regulate activity that is either interstate or commercial, and is thus outside of the Commerce Clause power. When states provide public services, they are not competing with the private market, and thus are not engaging in commercial activity. The federal government, which filed an amicus brief on behalf of the plaintiffs, had argued that the ADA is a comprehensive economic regulation of the activities of the disabled in the national economy, and can survive a Commerce Clause challenge without showing that every single facet of the program is independently and directly related to interstate commercial. Yet Judge Garza found that Title II was not an integral or necessary part of the otherwise valid ADA economic regulatory scheme.

Somewhat surprisingly, after finding that the ADA claims should be dismissed, Judge Garza indicated that he would uphold the plaintiffs’ section 504 claims. Although in substance the section 504 claims are the same as those under the ADA, section 504 rests on Congress’ power under the Spending Clause to put conditions on acceptance of federal funds. Judge Garza rejected Texas’ claim that, because Texas receives no section 504 funds, Congress could not condition acceptance of Medicaid funds on compliance with section 504. Rather, he found that Congress can make conditions generally applicable to all federal monies, which states are free to accept or reject.

There are a couple of noteworthy points about Judge Garza’s dissent. First, he reached out to decide the constitutionality of the statute, a question that would not normally be decided when addressing a sovereign immunity issue. Second, whereas his 14th Amendment analysis is not surprising–given the scant protection that the Supreme Court has given the disabled under that Amendment–his Commerce Clause analysis breaks new ground. Since the Supreme Court reinvigorated Commerce Clause scrutiny in 1995, it has only twice invalidated statutes, and the two statutes struck down–the Gun-Free School Zone Act and a section of the Violence Against Women Act–were minor statutes focused on criminal activity traditionally within the purview of state governments. The ADA, by contrast, is a major statute meant to integrate the disabled into the larger life and economy of the nation, which Judge Garza conceded is a valid goal under the Commerce Clause.

Commerce Clause restrictions are also much more dangerous than those under the 14th Amendment. Restrictions on Congress’ 14th Amendment powers generally only prevent it from imposing damage remedies on states while still allowing Congress to regulate state conduct. Limitations on the commerce power, however, go to the heart of Congress’ ability to legislate, not only with respect to states, but also with respect to local governments and private parties.