Fourth Circuit Debates Congressional Power Under the 14th Amendment
Keywords
Wessel v. Glendening, 2002 WL 31121398 (4th Cir. Sept. 26, 2002). Because the 14th Amendment is one of the few bases for Congressional authority to abrogate state sovereign immunity, the differing approaches also affect 11th Amendment litigation. The case presents fundamental differences on the role of the courts and the deference due Congress.
The issue before the Fourth Circuit was a claim under Title II of the Americans with Disabilities Act (ADA) that state prison officials discriminated against plaintiff prisoner by denying him participation in a boot camp program that led to early release. Because the plaintiff had been released by the time the suit reached the Fourth Circuit, the claim was solely for damages.
The majority opinion found that Congressional abrogation of state immunity exceeded its authority under the 14th Amendment. Judge King dissented.
The Majority
The majority first turned to the question of the scope of the inquiry. The federal government, as intervenor supporting plaintiff, appeared to contend that the scope should be narrow, namely whether the criteria for 14th Amendment authority are met in respect to the particular program in question, here prisons and perhaps the boot camp program. The court rejects this approach and holds that the inquiry relates to all of Part A of Title II, the Part prohibiting discrimination by public entities. Since Title II addresses discrimination by any public entity, there cannot be a narrower framework for the constitutional test under Section 5 than the activities of the state itself.1 (Note: From the standpoint of plaintiffs, whether the narrow or broader approach is preferred will depend on the legislative record under the particular statute. For example, if in the Wessel case, there was a record of a pattern of discrimination by states in prison programs but not in other programs, the plaintiff might prevail if the focus is on prisons but lose if it is on the broader area of state programs generally. On the other hand, if there is a pattern of state discrimination in a variety of programs but not in prisons, the plaintiff might lose under the narrow approach).
The majority then summarized the constitutional inquiry: first determine the constitutional right at issue, second, consider whether Congress identified a history and pattern of unconstitutional discrimination by the State and third, whether the legislation is congruent and proportional to the identified wrong.
Since disability discrimination is judged by the rational basis test, the court defined the constitutional right as follows: disabled people have a constitutional right not to be subject to arbitrary or irrational exclusion from the services, programs, or benefits provided by the state. (At *4).
Turning to the legislative record, the majority appears to believe that a pattern of discrimination must be shown to meet the constitutional test under Section 5. Congress must have legislated based on a pattern of unconstitutional discrimination. It noted that the Supreme Court has provided little guidance regarding what materials are relevant in the inquiry, noting apparent inconsistencies between Garrett and Boerne as to whether anecdotal testimony is considered. The Fourth Circuit did not resolve the question because it found the record lacking in any case.
As to Congressional findings, the court found the mere existence of findings insufficient to support abrogation. The ADA contains specific findings of discrimination in public programs. 42 U.S.C. §§ 12010(a)(3 and 5). In addition, the findings do not specifically refer to discrimination by the state. Contra: Dare v. California, 191 F. #d 1167,(9th Cir. 1999), cert. den. sub nom California v. Dare, 531 U.S. 1190 (2001) (relying on the Congressional findings). The majority then reviewed the legislative record and found little which had both elements: sate action which was unconstitutional.
Turning to congruence and proportionality, the majority finds this test also lacking, even assuming a satisfactory legislative record was present. It finds that Title II prohibits a wide swath of discrimination, much of which is not unconstitutional.
Dissent
Judge King dissented as to the record and the weight to be given legislative findings. Given the strength of the record, a modicum of respect for the workings of the legislative branch should lead to a determination of valid abrogation.
Judge King noted that Garrett expressly found the record deficient only as to evidence of employment discrimination by states. The Appendix to Justice Breyer s dissent listed over 300 examples of discrimination by states, which the majority in Garrett referred to as violations of Titles II (public entities) and Title III, (private public accommodations).
Judge King also found that Title II addresses a series of activities that affect fundamental rights, which are subject to higher scrutiny, such as voting rights, parental rights and Eighth Amendment rights. Thus the examples of discrimination in the record, held to higher scrutiny, are of unconstitutional conduct.
The dissent also stated that Congressional findings of discrimination should be treated as compelling evidence of a judgment that a pattern of unconstitutional conduct was documented for Title II. It also notes the extensive reports of discrimination by a special task force appointed by Congress.
The dissent also finds that Title II meets the congruence and proportionality test. The reasonable accommodation provision charges the states with an affirmative duty to address the sources of discrimination against the disabled in the operation of their public programs. Title II requires more limited accommodations than does Title I and targets public entities acting as sovereigns. When a state acts as sovereign, its interest in conserving resources and efficiency is narrower. Title II intrudes less on states rational interests than does Title I.