A Question The Supreme Court Will Soon Decide:
By ERWIN CHEMERINSKY
|Thursday, Feb. 13, 2003|
On March 25 of this year, the Supreme Court will hear oral arguments in Medical Board of California v. Hason. The Hason case raises the question of whether disabled individuals can bring suit against state governments under Title II of the Americans with Disabilities Act (ADA).
Title II prohibits state and local governments from discriminating against individuals with disabilities in "services, programs, and activities." Congress enacted this provision after finding pervasive discrimination against the disabled in a wide range of government activities - including activities that affect individuals' exercise of fundamental rights such as the rights to vote, travel, marry, procreate, make custody decisions, and have access to the courts and the government.
In the last several years, the Supreme Court has dramatically expanded state sovereign immunity, and limited suits against state governments. Accordingly, the question whether Title II reaches the states is one the Supreme Court has chosen to resolve.
The Facts of the Hason Case
Dr. Michael J. Hason (whom I represent in the case) is the individual who filed suit. A graduate of Yale College and New York Medical College, Dr. Hason received a medical license in New York and worked successfully in several hospitals. In 1995, Dr. Hason applied for a medical license in California. But in 1998, the California Medical Board denied his application based on his history of depression. Dr. Hason sued under Title II of the ADA.
The federal district court dismissed Dr. Hason's claims, holding that California's sovereign immunity defeated them. Dr. Hason then appealed to the United States Court of Appeals for the Ninth Circuit.
The Ninth Circuit reversed the district court's ruling, and held that state governments such as California's may indeed be sued for violating Title II based on allegations they have discriminated against the disabled in their medical licensing. The Medical Licensing Board then sought Supreme Court review, and it was granted.
Supreme Court Precedent on When Congress Can Allow Suits Against State Governments
There is a complicated set of Supreme Court precedents that governs when Congress can, and cannot, authorize federal court suits against the states. (Title II suits would trigger federal jurisdiction because they would raise a "federal question"; suits raising a federal question - here, a question about the interpretation of a federal statute - can always be raised in federal court).
The current rule is that, pursuant to the Court's 1996 decision Seminole Tribe v. Florida, Congress only may authorize suits against states when it acts under Section Five of the Fourteenth Amendment. Section Five authorizes Congress to enact laws "to enforce" that Amendment's important provisions. And the Fourteen Amendment itself says, in relevant part, that no state shall "deny to any person within its jurisdiction the equal protection of the laws."
That leads to another question: When does Congress permissibly act under Section 5, according to the Court? In its 1997 decision in City of Boerne v. Flores, the Court gave a partial answer. It held that Congress, under Section Five, may not create new rights or expand the scope of existing rights. Instead, it can act only to prevent or remedy constitutional violations. In addition, any laws it passes to do so must be narrowly tailored, to be "proportionate" and "congruent" to the goal of addressing constitutional violations.
That led to two crucial decisions on whether federal discrimination statutes can be applied against state governments. First, in Kimel v. Florida Board of Regents, the Court ruled that state governments cannot be sued for violating the Age Discrimination in Employment Act (ADEA).
Second, and most recently, in Board of Trustees of the University of Alabama v. Garrett, the Court decided that state governments cannot be sued for violating Title I of the ADA. Title I prohibits both private and government employers from discriminating against the disabled when it comes to employment.
The Court reasoned in Garrett that the Voting Rights Act - which aims to prevent discrimination in voting - is a permissible exercise of Congress' powers under Section 5. Title II of the ADA, however, is not.
Based on This Precedent, Can the States Be Sued Under Title II of the ADA?
Under these precedents, did Congress act pursuant to its Section 5 power when it enacted Title II of the ADA - which, as noted above, allows suits against state governments that discriminate in their services, programs, and activities?
I believe the answer is yes. In part, hat is because Title II is actually more similar to the Voting Rights Act than it is to Title I of the ADA, or to the ADEA - for several reasons.
Moreover, like the Voting Rights Act, Title II of the ADA is aimed at actions that impinge on fundamental rights - such as the rights to vote, to gain access to the courts, to be free from unjustified confinement, and to travel. Under equal protection principles, such actions receive the searching review that the Court deems "strict scrutiny" - unlike the actions targeted by Title I of the ADA and by the ADEA, which receive only very relaxed "rational basis" review. (Almost nothing passes strict scrutiny; on the other hand, almost anything can be justified on some rational basis).
Finally, like the Voting Rights Act, Title II of the ADA was enacted to address an area in which Congress had previously made findings demonstrating pervasive discrimination by state governments against the disabled.
With respect to Title II in particular, Congress documented a long history of unconstitutional discrimination against individuals with disabilities by state governments in their "services, programs, or activities." That history suggests that with Title II, Congress was indeed acting to prevent or remedy constitutional violations, and did so in a way that is proportional and congruent to those violations. The evidence before Congress showed the violations were extensive; accordingly, authorizing suits against state government was an appropriate, and proportionate response.
What The Ruling In Dr. Hason's Case Will Mean
As the precedents I have described - and others, as well - have shown, in the last six years the Supreme Court has imposed unprecedented limits on Congress's power to authorize suits against state governments when they violate federal laws. Medical Board of California v. Hason is likely to be a significant decision in indicating how far the Court will go in limiting litigation against states.
Title II of the ADA exists to prevent and remedy pervasive discrimination against individuals with disabilities, including discrimination that impairs their ability to exercise fundamental rights. If this statute cannot be used to sue state governments, it is hard to see how virtually any federal laws could ever be enforced against the states.