Analysis of Tennessee v. Lane

by

Joshua L. Friedman

In Tennessee v. Lane , the Supreme Court attempted to determine whether Title II of the Americans with Disabilities Act was a valid exercise of Congress to abrogate the sovereign immunity of the states. The Court addressed two questions. In creating Title II, did Congress specifically intend to abridge the rights of the states? And if so, does Congress even have this right? With the Court's decision in Alabama v. Garrett , private lawsuits under Title I of the ADA against the states are prohibited. However, what is the differentiation between Title I and Title II of the ADA? The Court distinguishes between the two and has handed down rulings in Tennessee v. Lane and in Garrett which almost seem to contradict one another. Subsequently, in Lane , the dissent of Justice's Rehnquist who focuses on the right to access in due process rights, and Justice Scalia, who argues against using the congruence test from Boerne v. Flores , add scrutiny to the Court's decision. Finally, Justice O'Connor's decision to uphold the right of individuals to file suit under Title II of the ADA is especially relevant.

Congress is compelled to ensure that rights enumerated within the 14 th Amendment are safeguarded and therefore by abridging state immunity, it can protect the rights of the individual. Taking this a step further, if Congress abrogates sovereign immunity, it has the power to do so only as long as the intent is to prevent or correct unconstitutional violations. The 14 th Amendment grants Congress broad rights in protecting the constitutional rights of the individual, but is not violated if discrimination does not occur. However, the question is where that power ends. What are the limits on this ability to intrude onto state immunity? The 11 th Amendment states that “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.” Therefore, a state cannot be sued in federal court by citizens of another state, and the Court has determined that immunity extends to citizens of its own state as well. However, Congress may abridge the immunity of the states in passing certain legislation. In Seminole Tribe of Florida v. Florida, the Court established two requirements that must be satisfied in order for Congress to abrogate sovereign immunity. The first requires that Congress makes “ ‘a clear legislative statement' of its intent ‘making its intention unmistakably clear in the language of the statute.'" The second requirement is that Congress must have attempted to abrogate this sovereign immunity granted to the states, “under proper constitutional authority” by exercising Section 5 of the 14 th Amendment. Furthermore, Boerne v. Flores provides a test for which the legislation that Congress passes must have “a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” Therefore, any legislation which is passed by Congress intending to uphold the rights of the individuals is permitted so long as that legislation is directly proportional to the actual discrimination and the means which is intended to achieve the end result of correcting or preventing such action. In order to pass such legislation, there must be a historical account of discrimination.

According to the Court, Title II of the ADA prohibits “irrational discrimination.” It was enacted because “inadequate provision of public services and access to public facilities was an appropriate subject for prophylactic legislation.” In order to remedy exclusion and discrimination, legislation passed must be prophylactic and therefore proportional to the intended end that it serves. The Court has the right to abridge state immunity if this conflicts with the 14 th Amendment. This is intended to apply the requirements of the Equal Protection Clause of the 14 th Amendment, which states that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The ability to uphold this is granted by Section 5 of the 14 th Amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” In order to uphold the 14 th Amendment, Congress must enact “prophylactic legislation that proscribes facially constitutional conduct, in order to prevent and deter unconstitutional conduct.” According to Ex Parte Virginia , if the Court's intent to enact such legislation is to “ secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited,” then it is “brought within the domain of congressional power.”

In reviewing Garrett, the Court found that this history did not specifically apply to Title I of the ADA, which prohibited discrimination in employment, as the historical discrimination was mainly found to be in public accommodation, not in employment. Most of the discrimination that occurred in employment, however, existed in the private sector, and was not propagated by the states. The main purpose of Section 5 of the 14 th Amendment deals with Congress' ability to abridge state immunity if the states have committed a constitutional violation. As historical evidence shows otherwise, Title I could not specifically be used to enforce the 14 th Amendment. The majority opinion refers to Nevada Department of Human Resources v. Hibbs , specifically the Family and Medical Leave Act of 1993 (FMLA) in which the Court upheld the FMLA because there has been a systemic gender discrimination and therefore Congress was entitled under section 5 of the 14 th Amendment to reverse this discrimination. The Court also referred to its prior decision in South Carolina v. Katzenbach to show that there has been a historic account of racial discrimination, and also a denial of voting rights through such discrimination. Therefore, the Court upheld the suspension of literacy tests and voting requirements, even though these were constitutional, in order to reverse or even correct such discrimination. Furthermore, the Court has upheld racial classification which may otherwise have violated the 5 th and 14 th Amendments, so long as it passes strict scrutiny. According to the Court in Adarand Constructors v. Pena , such classification "must serve a compelling government interest, and must be narrowly tailored to further that interest." Here, the intent of Congress was to remedy the effect of past discrimination. This strict scrutiny does not invalidate the ability to assign racial classifications, so long as there is a narrowly tailored governmental interest in doing so. Moreover, the Court ruled in Grutter v. Bollinger that attempting to achieve diversity in the student body is constitutionally permitted, because the admission was designed to remedy past discrimination. This proves that certain instances of racial classification do not violate the 5 th Amendment. However, the Court has established in Pena that 14 th Amendment due process rights are held to a higher standard than the equal protection rights. Therefore, to assign classification to disabled individuals and to deny them the right of access violates substantive due process.

In conclusion, while Title I refers to employment rights, there has not been a history of systemic discrimination in employment. In Title II, public access is a guaranteed right. As discrimination in public accommodation has long existed, the Court cited a whole gamut of cases to support this factual claim, ranging from education to penal systems and voting. Thus, Congress has the ability under Section 5 to create Title II in order to limit discrimination in public accommodations. As the states regulate public accommodations, the ruling in Lane was determined to uphold Title II as constitutional. According to the Court, this falls under the prophylactic standard set by the Court in Hibbs , and as Title II is an appropriate means of remedying exclusion and discrimination, it passes the congruence test in Boerne .

Finally, relying on United States v. Raines , the Court has directed that it does not have to view Title II in its entirety; rather it can focus on the specific application, which would be the right of access to the court. When the Court stated “because we find that Title II unquestionably is valid §5 legislation as it applies to the class of cases implicating the accessibility of judicial services, we need go no further,” the Court implied that it would only have to focus on one specific aspect of Title II, and thus would not concern itself with how Section 5 of the 14 th Amendment applied to other parts of Title II. This would implicate that this aspect of Title II would be within the scope of Congress' power, and the Court would not have to determine whether Congress had stepped beyond the limitations of Section 5. Such focus implies that the Court may, in the future, have issue with other portions of Title II, yet the Court has chosen not to address them at this point.

•  In dissent, Justice Rehnquist purports that because the majority opinion made its ruling “ as it applies to the class of cases implicating the funda­mental right of access to the courts,” the Court must take due process issues into consideration when determining to affirm or deny the constitutionality of Title II of the ADA. The right of access issue refers to the respondent's right of access to the courthouse in Tennessee to assert his due process rights. Therefore, by limiting accommodation and entrance to the courthouse, the state of Tennessee does more than merely limit equal protection rights, it abridges the individual's right to due process.

•  According to Justice Rehnquist, the only right to access that the Supreme Court has constitutionally upheld is the right to trial, and that the Court does not have any record of a history of discrimination against disabled individuals through a systemic denial of right of access to courthouses. Individuals with disabilities have the right to be present at trial, the right to be heard, the right to trial by jury, and the right to public access. As a state may preclude financial considerations as a reason for denying accommodation, if an actual courthouse does not have acceptable accommodations, this is not a constitutional violation. Because there is no history of due process violations, Title II cannot be seen as a prophylactic legislation, as it intends to prevent something which does not exist. Therefore, according to Rehnquist, Congress cannot merely ignore the requirement of showing a historical account of discrimination simply by enforcing the Due Process Clause. The ruling in Florida Prepaid , in which the Court struck down the Patent Remedy Act on the basis that Congress did not identify a record of constitutional violation, thereby requires that Title II cannot be constitutionally valid because it has a similar basis as the Patent Remedy Act.

•  Furthermore, Title II's focus on due process transforms it into an attempt to reword the 14 th Amendment. According to Rehnquist, the protection of Title II does not stop at mere due process violations. Title II requires accommodation in every interaction between a disabled individual and the state. If Title II only applied to cases where failure to reasonably accommodate resulted in a violation of substantial due process, then this would be acceptable. However, the lack of limitation means that Title II becomes more than merely prophylactic legislation. In requiring such extensive accommodation, Title II oversteps the bounds of the 14 th Amendment. By merely denying an individual the ability to enter the courthouse unaided, the state does not abridge the due process rights of the individual. There are no constitutional violations in doing so, nor is there any legislation prohibiting this. Although the Court has ruled in Boddie v. Connecticut that financial requirements which prevent an individual from assailing his due process rights are unconstitutional, there is no statute which can hold states responsible for the end result of failing to reasonably accommodate an individual.

•  Justice Scalia dissented as well, adding a new context to Justice Rehnquist's dissent. Section 5 of the 14 th Amendment grants Congress the right to pass legislation which is prophylactic in nature in order to prevent any denial of rights under the 14 th Amendment. However, Congress should not have the power to effectively rewrite the U.S. Constitution and/or Bill of Rights without submitting to the checks and balances system. The method intended to check Congress' ability to create such legislation was through the “congruence and proportionality” test in Boerne . According to Scalia, such tests are not effective because the results tend to be based upon judicial preference rather than on factual law. In order to show a proportional response, there must be an unconstitutional state action which exists. In reviewing Title II, there is no unconstitutional state action or any historical action to which a congruent and proportional legislation can be created to reverse. The Court would be required to oversee any legislation passed by Congress to ensure that Congress does not overstep its bounds in passing such legislation.

Moreover, Justice Scalia holds that the Section 5 of the 14 th Amendment requires Congress to enforce the rights of individuals, but defines the term enforcement as the means to execute the rights, rather than narrowly interpreting the rights granted by the 14 th amendment. Scalia uses an example of Congress passing a highway law which enforces the speed limit at 10 miles lower than the actual speed limit itself. Similarly, Congress cannot require the right of access by limiting all interactions between the state and the disabled individual. This example illustrates the concept of legislation being intended only to implement a fundamental right under the constitution. If a law is passed constraining the right of the African American community to vote, it would be within Congress' power to pass a law granting those individuals the ability to assert this right to vote, rather than to create legislation which attempts to rectify past wrongs done by the states in limiting blacks from their right to vote.

Prophylactic legislation cannot “enforce” the rights enumerated in the Constitution by going “ beyond the provisions of the Fourteenth Amendment to proscribe, prevent, or ‘remedy' conduct.” In fact, Scalia states that the majority of cases dealing with Section 5 of the 14th Amendment, have been primarily concerned with racial discrimination. At the time, the 14 th Amendment was not expanded beyond racial inequality to grant equal protection to various classes of individuals. According to Scalia, it would be necessary to broadly interpret the term “enforce.” In the scenario where Section 5 was not being interpreted for racial discrimination, as in Oregon v. Mitchell , the term “enforce” would be narrowly interpreted. Therefore, Scalia states that any legislation which does not deal with racial discrimination shall be not subject to the “congruent and proportional” test, as this stems from Section 5 and therefore is a broadly defined test and should only be used with regard to racial discrimination.

Scalia's dissent conflicts with Garrett v. Alabama , which states that “Congress has ‘wide latitude' and a markedly different role from the courts when performing its ‘duty to make its own informed judgment on the meaning and force of the Constitution.'" Congress has the right to determine to what extent it will apply legislation that it chooses to create on the basis of Section 5 of the 14 th Amendment. Prophylactic legislation is intended to ensure that all forms of a certain type of discrimination are prevented, and as there is a systemic history of discrimination against the disabled in public accommodation, prophylactic discrimination is required. If Congress chooses to abrogate sovereign immunity, so long as there is a basis for such application, i.e. following the “congruence and proportionality” test in Boerne , this should be constitutionally permissible. While certain members of the Court may not agree with this, the test is certainly a means to ensure that the “appropriate legislation” is used to enforce the 14 th amendment.

Lastly, the Justices ruled together similarly in Lane the way they did in Garrett. Justice Stevens delivered the majority opinion, which Justices O'Connor, Breyer, Souter and Ginsburg joined, and Justices Rehnquist, Kennedy, Thomas and Scalia dissented. However, the difference between Lane and Garrett was that in Garrett , Justice O'Connor upheld state immunity, denying individuals the right to file suit under Title I of the ADA. In Lane, she joined the majority, affirming that Title II was reasonable prophylactic legislation and therefore private entities had the right to sue states under Title II of the ADA. In Garrett , Justice O'Connor joined in saying:

States act as neutral entities, ready to take instruction and to enact laws when their citizens so demand.…The predicate for money damages against an unconsenting State in suits brought by private persons must be a federal statute enacted upon the documentation of patterns of constitutional violations committed by the State in its official capacity. That predicate, for reasons discussed here and in the decision of the Court, has not been established.

O'Connor was willing to abridge state immunity if there was a pattern of constitutional violations, as shown in public accommodations under Title II. However, the issue at hand is that the Court relied on Raines to only focus on one application of Title II, the right to access, which had no history of systemic discrimination. Therefore, it is unclear as to why Justice O'Connor joined the majority in Lane. Conversely, O'Connor joined the majority in upholding the Family and Medical Leave Act in Hibbs , as there existed a systemic history of sexual discrimination. In Lane , Justice O'Connor may have broadly considered Title II in its entirety, rather than merely its application of right to access. This would lead to her decision to uphold any legislation which follows the “congruent and proportional” test and is predicated on a history of systemic discrimination.

•  In conclusion, the decision in Tennessee v. Lane seems ad hoc. It does not display a purpose of addressing state immunity as a whole, instead only focusing on Title II and its applications. The decision follows the Court's precedence of upholding legislation passed by Congress which predicates on systemic discrimination and attempts to act as prophylactic legislation. According to Andrew Imparto, President of the American Association of People With Disabilities, the problem with the Court using Raines to only focus on the right of access provision of Title II was that "[i]t could be education services, could be transportation, health care, long-term care, voting. There are lots of basic things that states administer that have a history of excluding people with disabilities or not letting us participate at an equal level to the rest of society. And unfortunately, we don't know after today's decision whether Congress continues to have the authority to enforce our civil rights in those areas." In only addressing the right of access under Title II of the ADA, the Court did not provide an analysis of public accommodation issues which could be essential in determining the legal quandaries inherent in other provisions of Title II. Furthermore, the issue that the majority opinion did not cover, which Justice Rehnquist addressed in his dissent, was that in applying Raines and only considering an application of Title II, rather than Title II in its entirety, the Court did not utilize a history of systemic discrimination. Therefore, it was incumbent upon the Court to grant a broad interpretation of Title II, which was considered constitutional as it was prophylactic legislation and intended to prevent past discrimination, similar to the rulings in Pena and Grutter .

•  The Court's interpretation of Title II is significant in cases dealing with Federalism, because Rehnquist is a proponent of state rights and is willing to restrict federal statutes which abridge the rights of the state. If the Court had continued in this vein from Garrett, and denied the rights of individuals with disabilities to file suit against the states for violations of Title II, disabled individuals would not be able to turn to Congress for appropriate remedies in public accommodation. Therefore, it is necessary to put pressure on state legislatures for more effective legislation, rather than Congress who is more likely to have its statutes repealed by the Supreme Court. However, in allowing private suits against the states for violations of Title II, the Court has granted individuals with disabilities some leeway, and has in fact, encouraged lawsuits for other provisions of Title II, to further define the ability to abridge sovereign immunity.

Works Cited

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

Oregon v. Mitchell , 400 U. S. 112 (1970).

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

18 May 2004, Morning ed (10:00 AM). LexisNexis Academic. University of Maryland. 19 May 2004.