(Vlog to come!)
Hello everyone! It’s been a while since this topic has been on the table. But. The fun continues!
Just to let you know I was going to do all of this in one post… but, I want to keep the vlogs to around ten minutes of less and WOW there is a lot to discuss here!
If you remember the vlog on Title I, you know we start Title II with a confusing question (if you don’t know what I mean go back and watch it! Seriously).
Title I of the ADA was passed by Congress using the authority of the 14th amendment and the Commerce Clause (we will discuss the Commerce Clause when we talk about Title III).
Alabama challenged Congress’ authority to obligate the States under Title I, because Alabama said there was no Proportionality and Congruence (oy! I get to spell that again!) in other words Congress failed to show that there was a history of discrimination by States that was pervasive enough to overcome the 11th Amendment (Sovereign Immunity).
Remember that the Congressional history cites like 50 or so pages of individual discriminatory acts, in alphabetical order, State by State.
Despite page after page in the congressional history documenting discrimination (if you don’t know what I’m talking about go back and watch Title I) the Supreme Court agreed with Alabama and gutted the application of Title I in regards to State employers (but not counties, cities or towns… it’s a federalist States rights thing… and not as Title I applies to private businesses, because Congress’ authority for private business came from a different place in the Constitution, the Commerce Clause-we will get there!)
What about Title II? Title II also burdens the States and also uses the authority of the 14th Amendment. ONLY the authority of the 14th Amendment! So if the Supreme Court decided that Title I was a no go… what about Title II?
Therein lies a story.
After Title I went south those attorneys who, like me, fight for the civil rights of people with disabilities were, how to put this… losing their cool. If the 11th Amendment is king (ha! pun!) then Title II could go away forever! All of it. So the search was on for the perfect Plaintiff. Someone who the Supreme Court could not refuse (or the public would identify with).
Maybe a camera ready, noble single mother between 23 and 33 with two adorable waifish children who was refused a vital government benefit or service by an evil government functionary because of her disability…
What we got was George Lane.
Lane used a wheelchair for mobility after a 1997 car accident in which he was accused of driving on the wrong side of the road. A person was killed in the crash, and Lane faced misdemeanor charges of reckless driving. Needless to say, he was not the Plaintiff they were looking for.
His Title II case arose because when he showed up for court at a venerable old Tennessee Court House. Since the place had no wheelchair accessibility (no elevator), he would have had to resort to crawling up several flights of stairs arm over arm dragging his wheelchair to access the courtroom in which he was required to appear. When he refused to do so he was charged with failure to appear and jailed.
As I said, not exactly a “made to order” Plaintiff in the uncertain “post-Garrett” world and absolutely NOT what we were looking for-but his case is what was granted certiorari so that is what showed up in front of the Supreme Court.*
Tennessee made the same argument as Alabama; Congress had no authority to obligate States under the 14th Amendment because it failed to prove a history of discrimination by States toward people with disabilities; no Proportionality and Congruence. Once again the Solicitor General of the United States pulled out the many many pages documenting discrimination, State by State, in alphabetical order. This is the same list that the Supreme Court said was not sufficient to overcome the 11th Amendment for Title I. The United States made roughly (Read as exactly) the same argument and the Supreme Court said… yes there is a sufficient history of discrimination to abrogate the 11th Amendment under Title II.
What? ok. What? (take a deep breath…) think it through. What is the difference between the two cases?
The reason the Supreme Court found the list of historical discrimination insufficient for Title I but sufficient for Title II is simple- you have no Constitutional Right to a job
But you do have a Constitutional Right to access the Courts. In the Sixth Amendment, its written right there.
What does that mean for State entities that are not Courts? What if it’s a State university that has discriminated? Or a State Hospital like the University of Alabama, only you didn’t want to work for them-so it’s not Title I-you wanted to access a benefit, program or service they offered? Does Title II apply then? Remember the Supreme Court said it found in Lane’s favor because of the Constitutional promises of the 6th Amendment… so does that mean you have to have a Constitutional violation to make Title II work? The Supreme Court hinted that no, you did not, but then decided the next case involving Title II (US v Georgia, a prisoners with disabilities facing discrimination) in part because it involved 8th Amendment violations (cruel and unusual punishment). As much as they hint that Constitutional violations are not required, this only Title II cases they have decided they attached to Constitutional violations.
Here is the real problem. If I was a State agency (but not a state court) and was reading the Lane decision I would think that it would in the best interests of my agency, from a strictly cost benefit standpoint, to deny any and all requests made for accommodations under Title II if there is no obvious Consitutional violation attached.
Think about it.
Look at the costs to my agency of providing interpreters to persons who are Deaf. I can save that money in my budget by not providing interpreters.
Here is the analysis.
If I deny every request for and interpreter, not every person who is Deaf will have the will to file a Title II lawsuit to enforce their Rights; If they do, not every person who is Deaf will have access to the resouces to bring a Title II lawsuit to enforce their Rights; and if they have both the fire inside and the resources to bring a Title II lawsuit against my agency (can’t sue me personally under Title II), if there is not an obvious Consitutional violation (you have no Consitutional Right to most State programs or benefits) Title II may not even survive a challenge using the 11th Amendment defense.
Feeling like the law that you thought promised equity to persons who are Deaf is just mostly… worthless? I cannot fault you for that, because the effectiveness of Title II is highly suspect outside of a Constitutional violation (please remember this is only an issue when it comes to States with a capital S, not cities or counties or towns…).
Remember that Section 504 cannot be interpreted to provide less protection than Title II of the ADA if 504 covers the same subject matter as Title II.
Remember also that 504 applies any time a State agency accepts federal money.
Finally remember that following 9/11 the Department of Homeland security Made IT RAIN BABY! It would be a rare thing indeed to find a State agency that had not accepted federal funds.
Finally, remember that the courts have determined that by accepting federal money States have agreed to permit themselves to be sued under Section 504 and give up 11th amendment protections.
We still need to talk about the Authority Congress used to pass Title II because despite all the problems I just showed you IT’S STILL GOOD LAW in every city, county, town, township, school district, water allotment board, zoning board, county animal control, county health department, library…
It’s worth knowing!
So. Title II and its Authority is next.
*there was in fact a second Plaintiff. A woman named Beverly Jones who is a court reporter who used a wheelchair and could not work in the second floor courtrooms for the same reason George Lane could not access them. I know what you are thinking, employment is a Title I issue and that is already not available to —- Ah. But —- is not an employee. She is an independent contractor. That is a different story and one that has a huge impact on interpreting.
We will discuss the issue of how independent contractors get protected under Title III in the very near future.