Endnotes

Endnotes: 1-10

Endnotes: 11-20

Endnotes: 21-30

Endnotes: 31-40

Endnotes: 41-50

Endnotes: 51-60

Endnotes: 61-70

Endnotes: 71-80

Endnotes: 81-90

Endnotes: 91-100

Endnotes: 101-110

Endnotes: 111-126

1 Lane v. Tennessee, 315 F.3d 680 (6th Cir. 2003), cert. granted, 156 L. Ed. 2d 626 (2003).

2 Board of Trustees of the University of Alabama v. Garrett , 531 U.S. 356 (2001).

3 Medical Board of California v. Hason, 279 F.3d 1167 (9th Cir. 2002), cert. granted, 123 S. Ct. 561 (2002), cert. dismissed, 123 S. Ct. 1779 (2003).

4 42 U.S.C. § 12132 (2003). Title II also includes a number of provisions specifically focused on defining and eliminating discrimination against disabled individuals in the public transportation context. 42 U.S.C. §§ 12141-65 (2003).

5 See, e.g., Rust v. Western State Hospital (D. Wash. 2000) (ending unnecessary institutionalization); Lovedy v. Tennessee Dept. of Environment and Conservation, (eliminating barriers to access to state parkland); Doe v. Alabama Department of Public Safety, (M.D. Ala) (requiring state department of motor vehicles to establish new standard guaranteeing disabled individuals a fair opportunity to obtain driver’s licenses); William Reid v. Cook County Circuit Court, Cook County Sheriffs Department and Michael F. Sheahan, Cook County Sheriff, Individually and in his Official Capacity, No. 99 C 1953 (N.D. Ill.) (ensuring that state police and state prisons can communicate with disabled individuals); Jane Roe v. Nevada State Board of Nursing, et al., U.S. Dist. Ct. # CV-S-98-1152 (ensuring that disabled individuals have a fair opportunity to obtain licenses to practice their professions); Beyer v. State of Hawaii, et al., No. 99-00043 SOM (D. Hawaii) (preventing application of state law that would unnecessarily prevent disabled individuals from possessing service animals); (McKay et al. v. Pulaski County Commission et al. DC Ark., No. LR-C-93-558. (protecting disabled individuals’ fundamental right to secret ballot); Mental Health Association of Southeastern Pennsylvania v. Borough of Darby, Civil Action No. 00-CV-253 (E.D. Pa.) (preventing application of zoning laws that discriminate against the disabled).

6 Congress may require the states to provide attorneys’ fees without abrogating sovereign immunity. Hutto v. Finney, 437 U.S. 678, 695 n.24 (1978). Thus, the attorneys’ fees provisions are not subject to being overturned in Lane.

7 See, e.g., Julie Davies, Federal Civil Rights Practice in the 1990’s: the Dichotomy Between Reality and Theory, 48 Hast. L. J. 197, 265-66 (Jan. 1997) (recognizing that civil rights cases do not attract representation when the applicable damages remedy is inadequate and citing attorney study concluding that “plaintiffs with low damages are not as likely to get representation, even for meritorious claims, as plaintiffs with high damages”).

8 Rehabilitation Act of 1973, Pub. L. No. 93-112, §504, 87 Stat. 355, 394 (1973).

9 See 42 U.S.C. 2000d-7 (2003) (regarding waiver of immunity where a state accepted funds under the Rehabilitation Act)

10 See Garrett, 531 U.S. at 374 n.9 (asserting that “state laws protecting the rights of persons with disabilities in employment and other aspects of life provide independent avenues of redress”).

11 Ruth Colker and Adam Milani, The Post-Garrett World: Insufficient State Protection, 53 Ala. L. Rev. 1075, 1083 (2002).

12 Ex Parte Young, 209 U.S. 123 (1908).

13 See Part IV.

14 For example, in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), the Court said Congress can regulate the states as long as the activities regulated substantially affect interstate commerce. 

15 See United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598 (2000).

16 134 U.S. 1 (1890).

17 Pennsylvania v. Union Gas, 491 U.S. 1 (1989).

18 Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).

19 527 U.S. 706 (1999).

20 Ex Parte Young, 209 U.S. 123 (1908).

21 Pennhurst State School v. Halderman, 451 U.S. 1 (1981).

22 Steward Machine Co. v. Davis, 301 U.S. 548 (1937).

23 South Dakota v. Dole, 483 U.S. 203 (1987).

24 See, e.g., Garcia v. S.U.N.Y. Health Science Center of Brooklyn, 280 F.3d 98 (2d Cir. 2001); Pace v. Bogalusa City Sch. Bd., 325 F.3d 609 (5th Cir. 2003), reh’g en banc granted, 2003 U.S. App. LEXIS 14621 (2003); Johnson v. La. Dep’t of Educ., 330 F.3d 362 (5th Cir. 2003).

25 See Garrett, 531 U.S. at 364; Kimel v. Florida Bd. of Regents, 528 U.S. 62, 80 (2000).

26 42 U.S.C. § 12202 (2003) (“A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter”).

27 Section 5 of the Fourteenth Amendment gives Congress power to enact prophylactic and remedial legislation to enforce Section 1. Kimel, 528 U.S. at 88.

28 Kimel, 528 U.S. at 81.

29 Id. at 88.

30 384 U.S. 641 (1966).

31 400 U.S. 112 (1970) (striking down a congressional statute lowering the voting age in state elections).

32 521 U.S. 507 (1997).

33 City of Boerne, 521 U.S. at 532.

34 “[T]he line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies.” City of Boerne, 521 U.S. at 508.

35 Id. at 520.

36 Id. at 532.

37 527 U.S. 627 (1999).

38 528 U.S. 62 (2000).

39 The Court had earlier held that the Act was a constitutional exercise of Congress’ power under the Commerce Clause in EEOC v. Wyoming, 460 U.S. 226 (1983). However, Seminole Tribe limited that holding, finding that Congress lacked the power under the Commerce Clause to authorize damage remedies in private employment actions against the states.

40 Id. at 91.

41 Garrett, 531 U.S. at 365-72.

42 See United States v. Virginia, 518 U.S. 515, 532-33 (1996) (states must provide an “exceedingly persuasive” justification for gender-based classifications); City of Richmond v. J.A. Croson, 488 U.S. 469, 493 (1989) (any racial classification is subject to strict scrutiny.) City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985) (disability classifications are subject to rational basis review).

43 See Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (upholding abrogation under Title VII); Nev. Dep’t of Human Resources v. Hibbs, 123 S. Ct. 1972 (2003) (upholding abrogation under the Family and Medical Leave Act).

44 Justice Breyer included with his dissent a lengthly appendix listing examples of discriminatory laws and actions by the states. However, the Court found that Justice Breyer’s Appendix did not indicate a pattern of unconstitutional state discrimination in employment against persons with disabilities. The Court rejected the Appendix as evidence of a pattern of state discrimination in employment because the Appendix “consists not of legislative findings, but of unexamined, anecdotal accounts of adverse, disparate treatment by state officials... [and] adverse, disparate treatment often does not amount to a constitutional violation where rational-basis scrutiny applies.” Garrett, 531 U.S. at 370. The Court also rejected the Appendix because “had Congress truly understood this information [in the Appendix] as reflecting a pattern of unconstitutional behavior by the States, one would expect some mention of that conclusion in the Act’s legislative findings.” Id. at 371.

45 Id. at 372.

46 123 S. Ct. 1972 (2003).

47 See supra note 42.

48 Id. at 1983.

49 See Kimel, 528 U.S. at 88.

50 For example, the Sixth Circuit in Popovich v. Cuyahoga County, 276 F.3d 808, 815 (6th Cir. 2002) concluded that Congress could create a damages remedy under Title II for claims based on the Due Process Clause. We discuss the approach of the courts of appeals below in Part VI.

51 This prohibition is implicit in Title II’s basic prohibition of discrimination. See 42 U.S.C. § 12132 (“… no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity”).

52 See, e.g., Wessel v. Glendening, 306 F.3d 203, 210 (4th Cir. 2002) (concluding that Title II protects disabled individuals’ “constitutional right not to be subject to arbitrary or irrational exclusion from the services, programs, or benefits provided by the states”); Hason v. Medical Board of California, 279 F.3d 1167, 1172-73 (9th Cir. 2002).

53 See, e.g., Thomas ex rel. Thomas v. Davidson Academy, 846 F. Supp. 611, 620 (M.D. Tenn. 1994) (granting preliminary injunction preventing school from expelling student because she exercised her rights under the ADA).

54 See, e.g., Doe v. Rowe, 156 F. Supp. 2d 35, 51-59 (D. Me. 2001) (constitutional bar preventing voting by mentally ill persons violates Title II, procedural due process and the Equal Protection Clause)

55 See, e.g., O’Connor v. Donaldson, 422 U.S. 563, 575-76 (1975) (involuntary and unnecessary commitment to a mental hospital of a non-dangerous, mental patient is a denial of due process).

56 See Olmstead v. Zimring, 527 U.S. 581, 600, 607 (1999) (holding that Title II prohibits unjustified institutional isolation of disabled individuals).

57 See, e.g., Estelle v. Gamble, 429 U.S. 97, 103-05 (1976) (recognizing inmate’s constitutional right to medical care under the Eighth Amendment).

58 See Kiman, 301 F.3d at 24-25 (holding allegations that prison officials were deliberately indifferent to unique health and safety concerns arising from plaintiff’s disability sufficient to state a constitutional violation such that Kiman could proceed with his Title II claim for a remedy). Title II could have been used to protect disabled individuals’ Eighth Amendment rights in numerous other cases. See, e.g., Weeks v. Chaboudy, 984 F.2d 185, 187, 190 (6th Cir. 1993) (holding that prison medical director violated Eighth Amendment proscription against cruel and unusual punishment when he failed to provide paraplegic inmate with wheelchair); LaFaut v. Smith, 834 F.2d 389, 392-94 (4th Cir. 1987) (concluding that prison officials violated Eighth Amendment when they denied paraplegic inmate adequate toilet facilities for three months and necessary physical therapy).

59 See, e.g., Popovich, 276 F.3d at 815 (finding for a hearing impaired man in a Title II action against a state court that failed to provide adequate hearing assistance).

60 Disability-related discrimination passes constitutional muster even if it is “probably not true” that Congress’ reasons for passing the legislation are “valid in the majority of cases.” Kimel, 528 U.S. at 86. 

61 See supra note 42.

62 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985). In this case, the city of Cleburne, Texas, denied a special use permit to a group home for people with intellectual disabilities. The Court found that people with intellectual disabilities did not hold a quasi-suspect status entitled to heightened scrutiny, but nonetheless invalidated the city’s action under a rationality review standard. Many observers have concluded that the Court was not actually applying conventional rationality basis review.

63 Id. at 448.

64 See Garrett, at 367, stating “the result of Cleburne is that States are not required by the Fourteenth Amendment to make special accommodations for the disabled, so long as their actions toward such individuals are rational.” 

65 Id. at 464 (Marshall, J., dissenting.)

66 Nev. Dep’t of Human Resources v. Hibbs, 123 S. Ct. 1972 (2003).

67 Id.

68 See Popovich, 276 F.3d at 811-13; see also Faretta v. California, 422 U.S. 806 (1975) (right of a criminal defendant to be present at trial); Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (right of the public to attend trials); Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966) (right to vote); BE&K Constr. Co. v. NLRB, 536 U.S. 516 (2002) (right of citizens to petition government through “access to the courts.”)

69 Garrett, 531 U.S. at 372.

70 Kiman v. N.H. Dep’t of Corrections, 301 F.3d 13 (1st Cir. 2002), vacated, 310 F.3d 785 (2002).

71 Kimel, 528 U.S. at 88.

72 See, e.g., New York v. County of Delaware, 2000 WL 1264302, at 1 (N.D.N.Y.) (ordering improved access for disabled individuals under the ADA when evidence showed that in two New York counties all polling places but one were inaccessible to persons with disabilities).

73 South Carolina v. Katzenbach, 383 U.S. 301 (1966); Rome v. United States, 446 U.S. 156 (1980).

74 263 F.3d at 815.

75 Faretta, 422 U.S. at 819 n.15.

76 Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 12 (1986).

77 531 U.S. at 369.

78 Id. at 379.

79 Id. at 369.

80 The legislative history contained numerous examples of individuals unable to attend court hearings or denied access to other government facilities. See, e.g., Americans with Disabilities Act, Joint Hearing on H.R. 4498 and S. 2345 Before the Subcommittee on Select Education and the Subcommittee on the Handicapped, 101st Cong., 2d Sess. (1988) (testimony of Sandra Parrino) (refusal of states to build accessible public facilities, including town halls); Americans with Disabilities Act, Joint Hearing on H.R. 4498 Before the Subcommittee on Select Education, 101st Cong., 2d Sess. (1989) (statement of Emeka Nwojke) (concerning inaccessibility of court houses and court rooms); S. Rep. No. 116, at 7 (1989) (“When I was 5 my mother proudly pushed my wheelchair to our local public school, where I was promptly refused admission because the principal ruled that I was a fire hazard”); S. Rep. No. 116, at 12 (1989) (many persons with disabilities “cannot exercise one of your most basic rights as an American” because polling places are frequently inaccessible); H.R. Rep. No. 485, Pt. 2, at 40 (1990) (town hall and public schools inaccessible); H.R. Rep. No. 485, Pt. 3, at 50 (1990) (persons with disabilities, such as epilepsy, are “frequently inappropriately arrested and jailed” and “deprived of medications while in jail”); see also Education for All Handicapped Children, 1973-1974: Hearings Before the Subcomm. on the Handicapped of the Senate Comm. On Labor & Pub. Welfare, 93d Cong., 1st Sess. 384 (1973) (Peter Hickey) (student in Vermont was forced to attend classes with students two years behind him because he could not climb staircase to attend classes with his peers); Equal Access to Voting for the Elderly and Disabled Persons: Hearings Before the Task Force on Elections of the House Comm. on House Admin., 98th Cong., 1st Sess. 94 (1984) (Equal Access to Voting Hearings); Civil Rights of Institutionalized Persons: Hearings on S. 1393 Before the Subcomm. on the Const. of the Sen. Comm. on the Judiciary, 95th Cong., 1st Sess. 127 (1977).

81 See Wessel v. Glendening, 306 F.3d 203 (4th Cir. 2002); Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001); Walker v. Snyder, 213 F.3d 344 (7th Cir. 2002), cert. denied, 531 U.S. 1190 (2001); Randolph v. Rogers, 253 F.3d 342, 345 n.4 (8th Cir. 2001); Thompson v. Colorado, 278 F.3d 1020 (10th Cir. 2001), cert. denied, 535 U.S. 1077 (2002).

82 Hason v. Medical Bd., 279 F.3d 1167 (9th Cir. 2002), cert. granted, 123 S. Ct. 561 (2002), cert. dismissed, 123 S. Ct. 1779 (2003).

83 Garcia v. S.U.N.Y Health Services Ctr., 280 F.3d 98, 111 (2nd Cir. 2001);

84 Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808 (6th Cir. 2002), cert. denied, 123 S. Ct. 72 (2002)

85 Kiman v. N.H. Dep’t of Corrections, 301 F.3d 13 (1st Cir. 2002), vacated, 310 F.3d 785 (2002). The full court was equally divided and reinstated the district court opinion, dismissing the complaint. 332 F.3d 29 (1st Cir. 2003). The panel found that a claimant need not first prove the alleged constitutional violation in order to proceed with the suit. Id. at 34.

86 306 F.3d at 26.

87 274 F.3d at 982.

88 See, e.g., Thompson v. Colorado, 278 F.3d at 1028 n.4 (holding that it is appropriate to “conduct the abrogation analysis by considering Title II in its entirety”).

89 Kiman, 301 F.3d at 28.

90 280 F.3d at 112.

91 See, e.g., United States v. Raines, 363 U.S. 17 (1960) ("One to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional."); see also Griffin v. Breckenridge, 403 U.S. 88, 102-07 (1971).

In some areas of the law, a party may argue for a statue's unconstitutionality even though the statute is not unconstitutional as applied to the specific facts of the case. The most well-known example is the First Amendment doctrines of overbreadth and vagueness. In First Amendment challenges, a speaker whose own speech is unprotected may escape prosecution by arguing that the statute would also apply to protected speech. See Broadrick v. Oklahoma, 413 U.S. 601 (1973) (but noting that because a claim of facial overbreadth, if successful, is such "strong medicine," the doctrine "has been employed by the Court sparingly and only as a last resort").

92 See, e.g., Boddie v. Connecticut, 401 U.S. 371 (1971).

93 See Kimel, 528 U.S. at 82-91; Kiman, 301 F.3d at 18.

94 As the panel of the First Circuit in Kiman suggested, there should be no need for an extensive review of the legislative history when Title II is used to enforce a recognized constitutional violation.

95 Faretta v. California, 422 U.S. 806 (1975). Faretta reaffirmed the defendant’s right to be present at trial first articulated in Snyder v. Massachusetts, 291 U.S. 97 (1934).

96 Id. at 819 n.15.

97 Griffin v. Illinois, 351 U.S. 12 (1956) (ruling that Equal Protection required that a free transcript be provided to indigent defendants if necessary for appeal); Gideon v. Wainright, 372 U.S. 335 (1963) (holding that the Fourteenth Amendment required states to provide trial counsel to indigent criminal defendants); Douglas v. California, 372 U.S. 353 (1963) (holding that the Fourteenth Amendment required states to provide counsel to indigent criminal defendants on their first appeal as a matter of right.)

98 Evitts v. Lucey, 469 U.S. 387 (1985).

99 315 F.3d at 682.

100 Lassiter v. Dept. of Social Servs., 452 U.S. 18, 30 (1981).

101 M.L.B. v. S.L.J., 519 U.S. 102, 128 (1996).

102 See Boddie v. Connecticut, 401 U.S. 371, 380-81 (1971).

103 See Popovich, 276 F.3d at 815 (“Failure to accommodate [the plaintiff’s] hearing disability may render him unable to participate meaningfully in that determination. If he cannot understand what is happening during the custody hearing, it will be impossible for him to refute claims made against him, or to offer evidence on his own behalf.”) 

104 See Mathews v. Eldrige, 424 U.S. 319, 334 (1976).

105 See Lassiter, 452 U.S. at 27; Popovich, 276 F.3d at 814.

106 See, e.g., Popovich, 276 F.3d 808, 815 (6th Cir. 2002) (holding that the “participation” requirement of Title II protected disabled individuals’ due process right to a meaningful paternity hearing). The Court of Appeals stated that: “Based on the Supreme Court cases concerning the process required in child custody suits, it is clear that Ohio is required to provide Popovich with some level of hearing assistance, depending on the degree of his disability….As applied to the case before us, the “participation” requirement of Title II serves to protect Popovich’s due process right to a meaningful hearing.” Id.

107 315 F.3d at 682.

108 Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).

109 Waller v. Georgia, 467 U.S. 39 (1984)

110 Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984) (“Press-Enterprise I”) (noting that “the presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”).

111 Id. at 46. ("The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions. . . .").

112 Richmond Newspapers v. Virginia, 448 U.S. 555 (1980).

113 Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) (“Press-Enterprise I”); Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (“Press Enterprise II”).

114 464 U.S. at 501.

115 Press-Enterprise I, 464 U.S. at 510.

116 See Kimel, 528 U.S. at 81 (2000) (finding that “Congress’ § 5 power is not confined to the enactment of legislation that merely parrots the precise working of the Fourteenth Amendment. Rather, Congress’ power ‘to enforce’ the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not forbidden by the Amendment’s text”).

117 See Kiman, 301 F.3d at 19-20 (citing City of Boerne, 521 U.S. at 519-20) (“While the line between measures that remedy or prevent unconstitutional actions and measures that make a substantive change in the governing law is not easy to discern, and Congress must have wide latitude in determining where it lies, the distinction exists and must be observed”).

118 See Katzenbach v. Morgan, 384 U.S. 641 (1966) (“When recognized state violations of federal constitutional standards have occurred, Congress is of course empowered by § 5 to take appropriate remedial measures to redress and prevent the wrongs.”) In Katzenbach, the Court upheld a ban on literacy tests in part on the theory that, even though literacy tests might not themselves be unconstitutional, barring them helped prevent discriminatory treatment by the government in providing public services.

119 276 F.3d at 815.

120 See, e.g. Galloway v. Superior Court, 816 F. Supp. 12, 19 (D.D.C. 1993) (concluding that the District of Columbia Superior Court’s categorical exclusion of blind individuals from jury service violated the ADA.)

121 Congress’ judgment that there is a pattern of state discrimination in the provision of public services, and that such discrimination requires a federal remedy, is entitled to “a great deal of deference, in as much as Congress is an institution better equipped to amass and evaluate the vast amounts of data bearing on such an issue.” Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305, 331 (1985).

122 City of Boerne, 521 U.S. at 519-20

123 383 U.S. 301, 331-32 (1996).

124 Id. at 330.

125 Id. at 331 (“Legislation need not deal with all phases of a problem in the same way, so long as the distinctions drawn have some basis in practical experience.”)

126 531 U.S. at 373-374.