11th Circuit: ADA Unconstitutional As Applied to State Prisons

In a decision having implications for 14th Amendment doctrine generally, the Eleventh Circuit has held that Title II of the Americans with Disabilities Act, as applied to state prisons, is not a valid abrogation of state sovereign immunity.

Miller v. King, 2004 ---F.3d.---, 2004 WL 2035197 (11th Cir. Sept. 14, 2004).

The court reached that decision despite the fact that the plaintiff presented triable evidence of cruel and unusual punishment.This is the first decision post-Tennessee v. Lane, 124 S.Ct. 1978 (2004), to find that a statute was outside of Congress’ Fourteenth Amendment powers in a context involving fundamental constitutional rights.

Plaintiff Miller is a paraplegic, wheelchair-bound inmate with multiple health problems.  Due to disciplinary problems, he is held in a high security isolation cell so small that he cannot move his wheelchair. Able-bodied inmates with disciplinary problems are held in less stringent units.

The court found that Miller had sufficient evidence of violations of the Eighth Amendment to survive summary judgment on his 42 U.S.C. § 1983 claim against the state warden in his individual capacity. Although the court noted that the Eighth Amendment only prohibits conditions that involve “wanton and unnecessary infliction of pain,” Miller had evidence that “serious medical needs” were denied, “effectively rendering Miller immobile and causing his muscles to atrophy,” and causing his spinal condition to deteriorate. There was also evidence that he was denied “the basic levels of humane care and hygiene,” forcing him to urinate and defecate on himself, due to deliberate indifference by the warden.  The court thus remanded the § 1983 claims as well as the claims for injunctive relief under the ADA, which fell within the Ex Parte Young,209 U.S. 123 (1908), exception to the doctrine of sovereign immunity.

Three-Part Test from City of Boerne

Addressing whether Congress had acted within the scope of its Fourteenth Amendment power to abrogate state sovereign immunity under the ADA, the court applied the three-part “congruence and proportionality” test of City of Boerne v. Flores, 521 U.S. 507, 520 (1997): the court must (1) identify the precise constitutional right at issue, (2) determine whether Congress identified a history and pattern of unconstitutional conduct by the States, and if so, (3) analyze whether the legislation is a congruent and proportional response to that history and pattern.

On the first issue, the constitutional right at issue here is the Eighth Amendment’s ban on cruel and unusual punishment. Although this is a fundamental right, like the fundamental right of access to the courts upheld under the ADA in Tennessee v. Lane, but unlike the ADA Title I claim struck down in Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001), the court did not mention this fact or discuss its significance.

Second – in the one piece of good news for ADA proponents – the court found that the Supreme Court in Lane “concluded that Title II in its entirety satisfies Boerne’s step-two requirement that it be enacted in response to a history and pattern of States’ constitutional violations” (emphasis added).  Thus, the Eleventh Circuit did not need to consider whether Congress’ evidence of unconstitutional discrimination against the disabled in the specific prison context (of which there was some but not a lot) met this standard.

In step three, however, the court found that applying the ADA to state prisons would not be congruent and proportional to the “the limited nature” of Eighth Amendment rights.  The “robust, positive due-process obligation of the States to provide meaningful and expansive court access [in Lane] is in stark contrast with the States’ Eighth-Amendment, negative obligation to abstain from cruel and unusual punishment.” Applying the ADA to state prisons would affect a broad swath of prison services and activities, including education, recreational, and job-training programs, which have nothing to do with the ban on cruel and unusual punishment.

In finding that the ADA’s mandates were disproportional to the requirements of the Eighth Amendment, the court seemed to forget its earlier observation that the ADA right to “reasonable” accommodations is “relative to circumstances, and the circumstances of a prison are different from those of a school, an office, or a factory.”  Thus, the court failed to consider whether application of the ADA to state prisons would be constitutional if the statute were construed to limit reasonable accommodations to those required by the Eighth Amendment.  Of course, reading the statute that narrowly would also narrow the right to injunctive relief, as well as rights against non-state prisons, both of which are unaffected by the sovereign immunity ruling.

Trouble in a Footnote?

In an extended footnote that may prove especially troubling to advocates, the court also rejected the plaintiff’s argument that the ADA could be “narrowly enforced against States only where the alleged ADA violations also actually violate the constitutional right at issue – in this case, the Eighth-Amendment right to be free from cruel and unusual punishment.”  Although noting that the First and Second Circuits have taken this approach, the Eleventh Circuit found that it was inconsistent with Lane, which allows “as applied” analyses, but only on a “context by context” basis (i.e., whether the ADA applies to state prisons as a whole).  Given the broad requirements of the ADA and the little protection the disabled receive under the Constitution, it will be difficult for advocates to justify the statute’s congruence and proportionality if the contexts cannot be narrowed to those implicating constitutional rights.

The court’s approach has thus set up a Catch-22 for advocates.  If plaintiffs attempt to justify application of a statute to a broad category of cases, courts will find either that Congress has not amassed a sufficient record of constitutional violations by states in the broad category, or that the legislation reaches too much state conduct that is not unconstitutional.  But if plaintiffs try to apply a statute in a more specific context, courts will find either that there is insufficient legislative history on those specific facts, or that it is an improperly narrow “as applied” application.

It is a particular paradox to see a court find that the Fourteenth Amendment prohibits application of a statute to violations of the Fourteenth Amendment itself (through its incorporation of the Eighth Amendment).  The serious nature of Miller’s claims is reflected in the fact that the United States Department of Justice--hardly an aggressive proponent in the current Administration of civil rights lawsuits against states--intervened in support of the plaintiff.  What seems to be getting lost in the Fourteenth Amendment caselaw is the obligation of courts to respect Congress as a co-equal branch and to construe legislation to be constitutional if at all possible.