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Title II v. the Eleventh Amendment - Post-Garrett

In Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001), state employees sued the state of Alabama for failing to comply with Title I of the Americans with Disabilities Act (ADA). Alabama asserted immunity under the Eleventh Amendment1. The Eleventh Amendment protects non-consenting States from being sued by private individuals in federal court. However, Congress may subject non-consenting States to these lawsuits if Congress had acted within its authority to enforce the Fourteenth Amendment2. The federal courts though, not Congress, decides the boundaries of Congress's constitutional authority under the Fourteenth Amendment. Since Congress had not acted within its constitutional authority in applying Title I to the States, the Supreme Court held that an individual could not sue a state for money damages under Title I.

Even though Garrett decided whether monetary remedies against the states were constitutional under Title I, it refused to decide this issue under Title II. However in analyzing the constitutionality of Title I, the Supreme Court provided a framework that the lower courts are now applying to Title II.

  1. The first step is to identify the scope of the constitutional right in question. In Garrett, the constitutional right at issue was equal protection. The Supreme Court had previously held in Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) that people with disabilities were not a quasi-suspect class for an equal protection analysis. A minimum rational-basis analysis3 is used instead: any action by the state is constitutional as long as there is a rational relationship between the disparate treatment and some legitimate purpose. Courts will usually defer to the States' stated purpose unless it is clear that their actions were motivated solely by animus or ill will toward people with disabilities.
  2. The second step is deciding whether Congress had identified a history and pattern of unconstitutional discrimination by the States against people with disabilities. Congress can enforce the Fourteenth Amendment only in response to State transgressions. Congress had documented several incidents by State employers discriminating against people with disabilities. However, no context was provided on whether there had been an irrational basis for the discrimination to make it unconstitutional. The Supreme Court felt that Congress failed to identify enough of a pattern of unconstitutional discrimination to overcome Eleventh Amendment immunity.
  3. Even if Congress does identify a history or pattern of unconstitutional violations, the remedy must be congruent and proportional to the violation. Congress may legislate beyond what the Fourteenth Amendment actually guarantees only if the legislation exhibits congruence and proportionality to the injury it seeks to prevent or remedy. Title I prescribed standards that far exceeded what the Constitution required. For example, Title I mandated state employers to accommodate their employees' disabilities unless the employers could show that it created an undue burden. However, the Constitution allows a state employer to treat people with disabilities differently as long as there is some rational purpose behind the treatment. Therefore a state employer could refuse accommodation as long as he had some rational purpose for doing so. In prescribing such heightened requirements to the States, Congress was effectively trying to redefine the guarantees of the Fourteenth Amendment.

So in order to determine whether a state can assert an Eleventh Amendment defense against a Title II lawsuit, a court must determine what kind of constitutional right is being protected by Title II. Then it must determine whether Title II was passed in response to a history of state violations of these rights. Last, it must determine whether Title II's remedies are congruent and proportional in addressing these constitutional violations. The following Federal Courts of Appeal have reviewed various challenges to Title II by the states:

Thompson v. Colorado, 258 F.3d 1241 (10th Cir 2001).

    The plaintiffs had brought a class action suit claiming that the fee Colorado charged for disabled parking placards violated Title II of the ADA. The Tenth Circuit found that Title II was not a valid abrogation of Colorado's Eleventh Amendment immunity because Congress had failed to identify a history and pattern of unconstitutional discrimination by the states against people with disabilities. The majority of the legislative findings involved refusals by public entities to make accommodations for people with disabilities. The Fourteenth Amendment merely requires that similarly situated citizens should be treated alike. The Tenth Circuit viewed Title II's accommodation mandate as an attempt to prescribe a new federal standard rather than an attempt to combat unconstitutional discrimination. Such expansion of rights cannot be enforced against the states.

Garcia v. State Univ. of N.Y. Health Scis. Ctr., 280 F.3d 98 (2nd Cir. 2001).

    The plaintiff was dismissed from medical school following his repeated failure to complete his first year curriculum. He was then diagnosed with ADD and another learning disability. Relying on this diagnosis, Garcia applied for reinstatement. When he and the school could not agree on how much of his first year he had to retake, he filed suit claiming that their refusal to let him make up certain classes constituted a Title II violation. Since his medical school is a state school, it asserted Eleventh Amendment immunity.

    Following Thompson, the 2nd Circuit stated that Title II applied higher standards than required by the Fourteenth Amendment so Congress did not validly abrogate state sovereign immunity when it came to monetary remedies. However, the courts may fashion an appropriate remedy that does not exceed Congressional authority under the Constitution. Since motivation by "animus or ill will" would never be a rational basis for discrimination by the States, such discrimination would be unconstitutional. The Second Circuit held that plaintiffs must establish that the Title II violation was motivated by such animus or ill will to prevail on a private suit for monetary damages. Since the plaintiff did not allege animus or ill will in his pleadings, the case was dismissed.

Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001).

Prisoners with mental illnesses sued the Louisiana prison system under Title II seeking injunctive relief for allegedly deficient mental health services. The 5th Circuit ruled the state immune because a closer look at the legislative history identified mostly discrimination perpetuated by local government, not state. Also, many of the findings describe facially neutral state policies. To prove an Equal Protection violation, a plaintiff must show that the facially neutral state law that has a disparate impact on people with disabilities is intentionally discriminatory. All Congress has shown is that the policies have a discriminatory impact on people with disabilities.

A disturbing development in the case was that the 5th Circuit also denied Ex Parte Young injunctive relief (see epilogue for an explanation of the doctrine) because of a procedural error. The plaintiffs had originally named state officials as defendants as required by the Ex Parte Young doctrine. However, they amended their complaint to remove the state officials in the face of a dubious statutory argument that the ADA did not permit suit against individuals. Ex Parte Young does not provide an exception to sovereign immunity when only the State is named as the defendant.

Popovich v Cuyahoga County Court of Common Pleas, 276 F.3d 808 (6th Cir. 2002) (en banc).

    A person with a hearing impairment sued a state court under Title II of the ADA for refusing to provide him with adequate hearing assistance in his child custody case. He sued under an equal-protection type claim of discrimination and a due-process type claim of unreasonable exclusion from meaningful participation in the custody case. The state asserted its Eleventh Amendment immunity. The question before the Sixth Circuit then was whether Congress abrogated the state court's immunity with respect to Title II. The Sixth Circuit ruled that the plaintiff's case was barred under his equal protection claim but was not barred as to his due process claim. Title II's "excluded from participation" requirement4 protected the plaintiff's constitutional right to a meaningful hearing and that Congress had not overstepped its constitutional boundaries by requiring states to accommodate his disability. Since Garrett only requires the congruence and proportionality test on legislation that goes beyond what the Fourteenth Amendment requires, the Sixth Circuit did not have to analyze whether Congress had properly identified a history of unconstitutional discrimination in legislating Title II much less finding whether the legislation was congruent and proportional to the violations it was seeking to address.

    Popovich makes the interesting distinction between equal-protection type and due process type claims under the ADA. The Sixth Circuit remanded the case because the jury charge had allowed the jury to find for the plaintiff on equal protection principles when a finding should be based on due process principles. The Sixth Circuit views Garrett as suggesting that any congressional attempts to enforce the Equal Protection Clause through the ADA would never abrogate a state's Eleventh Amendment immunity. This distinction, whether correct or not, unnecessarily forecloses any equal protection type claims for money damages under Title II in the Sixth Circuit5. Claimants must rely on a due process type violation to entertain the hope of receiving money damages.

Hason v. Medical Bd. Of Cal., 279 F.3d 1167 (9th Cir. 2002).

    A physician with a mental disability filed a Title II discrimination suit against California's medical board for denying him a license. The Ninth Circuit had previously held in Dare v. California, 191 F.3d 1167 (9th Cir. 1999) and Clark v. California, 123 F.3d 1267 (9th Cir. 1999) that Congress had validly abrogated state sovereign immunity with respect to Title II. Noting that the Supreme Court's ruling in Garrett was limited to Title I, the Ninth Circuit held that the Eleventh Amendment did not bar Dr. Hason's Title II claims.


These cases (with the exception of Hason) suggest that Title II might not hold up to an Eleventh Amendment attack especially if it's enforcing equal protection principles. Since equal protection only requires that States have a rational basis for discriminating against people with disabilities, Title II prescribes equal protection standards that probably exceed what the Constitution requires (as determined by the courts). However, when a plaintiff relies on Title II to enforce his due process rights or his privileges and immunities under the Fourteenth Amendment; a state might not be able to defeat the suit by asserting sovereign immunity.6

Even if a state were to successfully assert its Eleventh Amendment immunity7 , a potential claimant would still have other remedies available besides monetary damages.

As the Supreme Court suggested in footnote 9 of Garrett, injunctive relief would be still available under Title I due to the Ex Parte Young doctrine8. Under the Ex Parte Young doctrine, a state official stops being a state official when he does something contrary to federal law. Therefore the state official is not entitled to assert eleventh amendment immunity. Examples of injunctive relief might be a court order requiring the state modify its programs and services to make it accessible, mandating the state to remove architectural barriers in its buildings, etc. This powerful type of remedy would still be available even if personal monetary damages against the States under Title II should be ruled unconstitutional. Furthermore, the plaintiff might also be able to recover the attorney fees and court costs of forcing a public entity to comply with Title II9. However, as Reickenbacker v. Foster has shown, the plaintiff must name a state official as the defendant for injunctive relief. If only the State is named, then sovereign immunity bars the injunctive relief.

Garrett also noted that the ADA could be enforced by the United States against the states. Therefore the Department of Justice may still be able to recover monetary damages for the victim that the victim himself cannot recover for a Title II violation. See E.E.O.C. v. Wafffle House, Inc., 534 U.S. 279 (2002) (holding that the EEOC may be seeking to vindicate a public interest even when it pursues entirely victim-specific relief).

Even when states assert their Eleventh Amendment immunity to avoid being sued under federal law, individuals can still sue them in state court to try to enforce state law. State protections will be the topic of a future article.

1. The Eleventh Amendment provides:
"The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."

2. Section 1 of the Fourteenth Amendment provides (bold to emphasize):
"...No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Section 5 provides:
"...Congress shall have power to enforce, by appropriate legislation, the provisions of this article"

3. Law that purports to treat people differently based on race, ethnic origin, or alienage (the type of law that invites equal protection arguments based on that discrimination against a suspect class), and in certain cases where the government is discriminating based upon the exercise of a fundamental right, invokes a level of judicial scrutiny called Strict Scrutiny. Under Strict Scrutiny the government must have a compelling reason to pursue the ends at issue, the means to that end must be precisely tailored so that there is no less restrictive way to meet those ends (or the government must use those less restrictive means), and since there is no presumption of Constitutionality the burden of proof is on the government.

Laws that purport to discriminate based on Gender (a Quasi-suspect class) usually will invoke an Equal Protection claim, and judicial scrutiny as in matters of race, but a lesser scrutiny, one called Intermediate Scrutiny by most legal scholars. In this level of scrutiny, the governmental ends have to be important, and the means must be substantially related to the ends the government seeks. The burden of proof may be placed on the government.

Laws that may invoke other types of discrimination (against people who are not members of a suspect class), and laws that limit Due Process rights, or State laws that regulate interstate commerce, will invite other types of judicial scrutiny; namely the less strict, Rational-Basis Scrutiny. Here, there is typically a presumption of Constitutionality, and the burden to proof is switched to the challenger of the law. The government's goal in enacting the law must merely be legitimate, that is it must relate to a regular interest of the government such as health safety or welfare. This is an easy. The means to that governmental end must here merely be rationally related to the goals of the law. Clearly, the government wins most claims reviewed under this level of scrutiny.

4. "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." 42 U.S.C. § 12132

5. See Carten v. Kent State University, 282 F.3d 391 (6th Cir. 2002) (holding that the Eleventh Amendment bars equal protection ADA Title II claims against state entities).

6. See Popovich v. Cuyahoga County Court of Common Pleas, Domestic Relations Div., 276 F.3d 808 (6th Cir. 2002) (en banc); Roberts v. Pennsylvania Dept. of Public Welfare, --- F.Supp.2d ----, 2002 WL 253945, 22 NDLR P 201 (E.D.Pa. Feb. 21, 2002) (Holding that a state cannot assert its sovereign immunity in response to a Title V retaliation claim. The constitutional right that is being enforced by the ADA is the First Amendment right to petition the courts as established in McDonald v. Smith, 472 U.S. 479 (1985). Since this right has been established by the Supreme Court, Congress is merely enforcing this right rather than expanding it so a "congruence and proportionality" test is not needed).

7. Eleventh amendment immunity is not available to local and municipal gov'ts. See Chisolm v McManimon, 275 F.3d 315 (3rd Cir. 2001). (holding that a New Jersey county court was not an "arm of the state" at the time of the ADA violation and therefore was denied immunity).

8. See Gibson v Ark. Dep't of Corr., 265 F.3d 718 (8th Cir. 2001) (allowing injunctive relief against a state employer); Klinger v. Director, Dept. of Revenue, 281 F.3d 776 (8th Cir. 2002) (Trial court improperly dismissed claims against named state official for prospective injunctive relief).

9. See 28 C.F.R. § 35.175.

*By Vinh Nguyen JD, MBA, Legal Director
Southwest ADA Center at ILRU
(a program of TIRR) and one of ten
Disablity and Business Technical
Assistance Centers funded by NIDRR
(National Institute on Disability and Rehabilitation Research)

The Legal E-bulletin is a product of Southwest ADA Center at ILRU (a program of TIRR). Subscribers receive the latest news and analysis of litigation that is occurring on a national and regional level regarding the Americans with Disabilities Act and other disability related laws. In-depth reviews of specific portions of disability-related laws and regulations are also provided. Contributing authors are attorneys and experts in the field of disability law.

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