The Supreme Court Hands Down a Key Federalism/Disability Law Decision,
And Surprises Some Observers with Its Result

By VIKRAM DAVID AMAR

Thursday, May. 27, 2004

Years from now, when people look back on the legacy of the Rehnquist Court, federalism - the relationship between the national and state governments - will surely be one of the most talked-about areas of law. Over the last decade and a half, in a number of important lines of cases, the Court has reined in federal power -- ostensibly to protect the autonomy and vitality of state and local entities.

The "new federalism" of the past 15 years is turning out to be quite complicated, however. Just last week, the Court handed down one of the 10 most important decisions of this Term, Tennessee v. Lane. There, the Justices - in a move that surprised many observers - upheld Congress's power to subject states to monetary liability under certain provisions of the Americans With Disabilities Act (ADA).

The case and its result illustrate how delicate the balance on the Court is with regard to important constitutional questions of states' rights and individual rights.

Factual Background of the Case

The alleged facts of the case are rather compelling: George Lane, a paraplegic, was charged in Tennessee with a crime. As a result, he was required to appear in a courtroom on the second floor of a county courthouse that had no elevator.

The first time he appeared, Lane had to literally crawl up two flights of stairs to reach the courtroom. At a later hearing, he refused to crawl again, and refused also to permit court officers to carry him up the stairs - expressing concern for his physical well-being should he be dropped or mishandled. As a result, he missed this second hearing, and was arrested for failure to appear.

Lane - and other paraplegics who had been unable to gain access to the courtroom for various purposes - sued the State of Tennessee for money damages and injunctive relief. Their claim was brought under Title II of the ADA, which requires states to provide reasonable accommodations - or "modifications" - to allow otherwise eligible persons to participate fully in public services, programs or activities.

Lane and the other plaintiffs contended that an elevator was a reasonable modification the State had a duty to provide, in order that disabled persons may gain access to the courtroom facilities.

The State's Response: A Motion to Dismiss Citing the Eleventh Amendment

Tennessee moved to dismiss the action under the Eleventh Amendment to the United States Constitution. The State argued that, according to Eleventh Amendment doctrine, a suit seeking money damages against a state entity is barred unless the state has consented to the suit, or Congress has validly abrogated - or overridden -- the state's sovereign immunity from such a suit.

Here, there was no contention that Tennessee had waived its immunity. Thus, the only issue was whether, by passing Title II of the ADA, Congress had validly stripped states of their immunity.

The Test For Congress's Ability to Abrogate States' Eleventh Amendment Immunity

As FindLaw guest columnist (and one of my University of California law students) Will Trachman explained in an earlier column for this site, the Court has in recent years allowed Congress to abrogate the Eleventh Amendment shield for states only under very limited circumstances.

First, Congress must be acting pursuant to its powers under Section 5 of the Fourteenth Amendment, which gives Congress "the power to enforce, by appropriate legislation, the provisions of" of the rest of the Fourteenth Amendment. (Congressional laws enacted under federal powers other than those provided for in Section 5 cannot strip states of their immunity.)

Second, in order to be a valid Section 5 enactment, the congressional statute must remedy constitutional violations that states have committed, or are likely to commit. A congressional law that requires states to do things that the Constitution itself does not come close to requiring cannot be said to "remedy" violations of the Constitution itself. Such congressional statutes, the Court has said, are not "congruent and proportional" to the constitutional rights the statutes are supposed to be safeguarding.

This is not to say that a congressional statute may not go any farther than the Constitution itself in the limitations it places on states. Rather, it is to say that any congressional prophylactic must be carefully tailored, so that the congressional "remedy" remains closely tied to the substantive constitutional guarantee itself.

A Recent Application of the Test: The Garrett Case

Using this "congruence and proportionality" test, the Court has rejected a number of congressional statutes in the past 7 years. Indeed, another portion of the ADA -- that part of Title I that requires all employers (including state employers) to provide reasonable accommodations to the disabled in the workplace -- was held not to be a valid enactment under Section Five, in the Board of Trustees of the Univ. of Alabama v. Garrett case.

In Garrett, the Court reasoned that because states were not violating the Constitution when they failed to provide reasonable accommodations in the workplace, Congress could not invoke Section 5 as a basis for requiring them to do make such accommodations. As a result of this ruling, employees cannot sue state employers for damages under the ADA.

However, in Garrett, the Court left open the question it has now resolved in its recent decision in Lane - whether Title II of the ADA (which deals with public services, not public employment) could be justified under Section 5.

What the Lane Decision Tells Us

In ruling last week in favor of Lane, the Court reminded us of a number of things.

Let us start with the fact that Justice O'Connor here, as in so many other areas of constitutional law, provides the key swing vote. Garrett (and virtually all of the other Court rulings striking down congressional laws because they lacked "congruence and proportionality") was a 5-4 decision. So was Lane. The only difference was the side of the fence upon which Justice O'Connor landed.

In addition, Lane also reminds us of how nuanced - or downright volatile - constitutional doctrine can be. Why was the disabled plaintiff's case better in Lane than in Garrett? Was the congressional record of constitutional violations by states stronger? Perhaps.. But the reason it looked stronger in Lane was that the Court was willing to take into account far more evidence than it did in Garrett.

Two examples demonstrate this. First, in Garrett the Court considered only state employers who might have mistreated disabled employees; the Court refused to look at county and city employers who might have been guilty of constitutional violations.

By contrast, in Lane, the Court openly considered the treatment of disabled persons in courtrooms run by municipal and county officials, rather than just state-level entities. (As I have written elsewhere, I thought Garrett was simply wrong in this regard, and I am thus happy that Lane to some extent repudiates Garrett on this score.)

Second, in Garrett, the Court focused tightly on the employment setting. It refused to take into account state-level actions that unconstitutionally discriminated against the disabled in areas that might be analogous to employment but that did not, strictly speaking, involve the workplace.

In Lane, by comparison, the Court looked at the way states treat disabled persons not simply with respect to access to courthouses - the specific context in which this challenge arose - but rather across the board of state-provided services and programs.

By expanding the evidentiary scope -- to include different levels of government and different factual settings -- the Court was in Lane was able to characterize the congressional demonstration of state constitutional violations as more egregious. But if it had used as broad a lens in Garrett, it might have ended up reaching the same result.

The Key Distinction Between Garrett and Lane: While Both Involved the Rights of the Disabled, Only Lane Involved Political Rights

Perhaps most important in explaining or trying to reconcile the outcomes in Garrett and Lane is the fact that Lane involved an especially important setting - access to political institutions, and in particular, the courts.

Of course, it is important for historically-excluded groups like the disabled to have access to employment (the setting in Garrett). Nevertheless, the Court has repeatedly shown a greater concern in response to lack of access by out-groups to political institutions like legislatures, juries and courts.

Consider the Court's decision last year in the Grutter case. There, it decided (again with Justice O'Connor providing the key vote) that the University of Michigan Law School could - even under the judicial test of "strict scrutiny" -- take race into account to increase the representation of blacks, latinos and native Americans in the entering class. But when it did so, the Court went out of its way to characterize law school not just as a bridge to a promising financial career, but more importantly as a stepping stone to political institutions.

Writing for the Court last year in Grutter, Justice O'Connor emphasized that competitive law schools produce legislators and judges, and that facilitiating access to these institutions for minorities is a particularly laudable goal.

So, too, in Lane, the Court stressed how disabled persons had been shut out of political participation - denied the right to vote, and the right to serve on juries. It was this backdrop of political rights participation, and the role that access to the courtroom plays in the distribution of benefits and burdens in our society, that led the Court to be kinder and gentler in assessing these congressional statutory provisions than those at issue in Garrett.

If one looks at Garrett, Grutter and Lane all together, an enduring lesson emerges: The government has more leeway - and ideas like "strict scrutiny" and "congruence and proportionality" take on different glosses - when it is trying to promote access to legislatures and courtrooms.

That is as it should be. After all, it is the presumed real-world access to the democratic institutions of government that justifies the deference we generally pay to all of the other controversial decisions government makes that harm some people and help others.

Interested readers may want to click here for more from the docket of Tennessee v. Lane. - Ed.


Vikram David Amar is a professor of law at the University of California, Hastings College of the Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. Before teaching, Professor Amar practiced at the firm of Gibson, Dunn & Crutcher.

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