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Recent Petition from the SG

On March 9, the Solicitor General filed a petition for certiorari in United States v. Georgia, No. 04-1203, a potential follow up case to Last Term’s Tennessee v. Lane. The petition seeks review of the Eleventh Circuit’s determination that Congress lacked the constitutional authority to abrogate States’ sovereign immunity to prisoner lawsuits claiming violations of Title II of the Americans with Disabilities Act (ADA). Given that there is now a 2-1 split on that question, and the fact that the United States is seeking review, it seems likely that the Court will grant the petition for next Term.

Title II of the ADA prohibits disability discrimination in the “services, programs or activities of a public entity,” which the Court held in Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206 (1998), encompasses disability discrimination in prisons. However, the Court held open whether, so construed, Title II was a constitutional exercise of Congress’ authority to enforce the Fourteenth Amendment.

That question arose in this case when Georgia moved to dismiss Title II claims brought by Tony Goodman, a Georgia inmate confined to a wheelchair due to spinal injuries. Goodman alleges that because of his disability, he is kept in the maximum security wing of the prison and left in his 12-by-3-foot cell for 23-24 hours a day. And because the cell is not wheelchair accessible, he cannot turn his chair around in his cell and cannot access the toilet without assistance, which is frequently denied. Goodman also alleges that because of accessibility problems, he has been denied access to religious services and the prison law library, as well as other prison programs.

The State asserted that regardless of whether or not the prison was in compliance with the ADA, Goodman could not sue the State because Congress lacked the constitutional authority to abrogate the State’s sovereign immunity to private suits under Title II. Because the Supreme Court has held that Congress may only abrogate a State’s sovereign immunity pursuant to a valid exercise of its authority to enforce the Fourteenth Amendment, the question became whether Title II is valid Fourteenth Amendment legislation – one of the questions left open in Yeskey.

In answering that question, the Eleventh Circuit and other courts have looked to two prior Supreme Court cases that considered whether Congress constitutionally abrogated sovereign immunity under the ADA. In University of Alabama v. Garrett, a five-member majority of the Court held that Title I of the ADA – which applies to employment – was not valid Fourteenth Amendment legislation. The Court noted that Title I prohibits far more conduct than would be held unconstitutional under the rational basis test applied to disability discrimination under the Equal Protection Clause. And the Court found that there was no history of pervasive State violations of the constitutional rights of disabled employees that would justify broad prophylactic legislation.

On the other hand, when faced with an actual challenge to Title II itself, the Court held in Tennessee v. Lane that Title II is valid Fourteenth Amendment legislation, at least as applied to require accessibility in judicial services. Plaintiffs in Lane sued the state over the inaccessibility of county courthouses to people in wheelchairs. The State argued that the reasoning of Garrett applied equally to Title II, but a majority of the Court (the dissenters from Garrett plus Justice O’Connor), held otherwise. The Court held that there was ample evidence that people with disabilities were frequently subject to unconstitutional and otherwise unequal treatment in the administration of public services, justifying prophylactic legislation addressing government programs (even if there was no such history supporting prophylactic legislation relating to government employment).

Although the Court’s history discussion in Lane surveyed Title II in all its applications, the Court ultimately pulled back and decided the case on narrower grounds, holding that Title II was valid prophylactic legislation as applied to access to judicial services. Among other things, the Court noted that in this context, Title II often enforces constitutional rights that are subject to heightened scrutiny, such as the rights of criminal defendants to attend their own trials.

Many have criticized Lane and Garrett as inconsistent with one another. The fact that only Justice O’Connor was in the majority of both Garrett and Lane has created substantial uncertainty whether Lane’s emphasis on the pervasive history of disability discrimination in public service will be sufficient to sustain Title II even in contexts where “fundamental rights” are not implicated.

That question is presently being hashed out in the lower courts as they attempt to apply Lane’s “as applied” analysis to other contexts. Perhaps not surprisingly (given the number of prisoner lawsuits generally), the first post-Lane cases to percolate to the courts of appeals have been prison cases. (Other cases working their way through the courts concern Title II’s application to education, institutionalization and licensing).

Three Circuits have now addressed the question in the prison context, two holding the ADA abrogation unconstitutional and one holding it valid. The Eleventh Circuit’s decision in Georgia was joined yesterday by the Third Circuit’s decision in Cochran v. Pinchak. On the other side of the split, the Ninth Circuit in Phiffer v. Columbia River Corr. Inst., confronted the issue on a remand from the Supreme Court for reconsideration after Lane. The Ninth Circuit declined, however, to revisit prior circuit precedent that had held that Title II is valid Fourteenth Amendment legislation in all its applications.

The opinions in these three cases have made clear that there is some substantial disagreement and confusion about how to employ Lane’s “as applied” analysis in other areas. In the prison context, Title II implicates a number of constitutional rights, including the Equal Protection Clause, Eighth Amendment, Due Process Clause, First Amendment right to Free Exercise of Religion, etc. In its briefs, the United States has been arguing that courts of appeals must determine the validity of Title II as applied to prisons generally, taking into account all of the constitutional rights involved. However, in both Goodman and Cochran, the courts refused to consider whether Title II validly enforced rights not directly at issue in the case before it. Thus, the Eleventh Circuit only considered Title II’s relationship to the Eighth Amendment, while the Third Circuit only considered Title II’s enforcement of the Equal Protection Clause. The Ninth Circuit, on the other hand, inexplicably refused to engage in any “as-applied” analysis at all.

In his Georgia petition, the SG points to this confusion over the “as applied” analysis as a reason for the Court to grant certiorari sooner rather than later, since the methods employed in these early prison cases will inevitably be applied in subsequent cases in other contexts as well.

If the Court agrees, it will have three petitions to choose from. In addition to the Government’s petition in Georgia, Goodman himself is seeking cert., No. 04-1236, represented by former Solicitor General Drew Days and Prof. Sam Bagenstos, one of the attorneys from Lane. The State of Oregon also filed a petition in Phiffer, No. 04-947. The Court is likely to consider all three petitions simultaneously, after the responses are filed in each case in late March and early April.