November 10, 2005

Does the ADA just enforce existing rights for prisoners?

Linda Greenhouse reports on the oral argument in a key federalism case -- United States v. Georgia -- about whether prisoners can sue the states for damages for violations of the Americans With Disabilities Act. This is another one of those cases where the question is whether Congress has successfully abrogated sovereign immunity. The answer depends on whether the statute fits the Fourteenth Amendment power -- that is, whether the law is a remedy for the violation of Fourteenth Amendment rights (as opposed to the creation of new rights).

The man in the case is a paraplegic confined to a 12 feet by 3 feet cell 23 to 24 hours a day, where he can't turn the wheelchair around and lacks adequate bathroom facilities. He says "that guards leave him sitting in his own waste rather than assist him."

Greenhouse observes that the Justices seemed to think that the ADA in this situation dealt with mistreatment that would also violate constitutional rights, so providing for suits for damages would be properly characterized as an appropriate Fourteenth Amendment remedy.
Chief Justice Roberts posed one of the first questions. "Are you suggesting that the A.D.A. just tracks the Constitution and doesn't add to the burden on state officials?" he asked [Solicitor General Paul] Clement.

There was at most a "narrow band" of actions that the law would require but that the Constitution did not demand, Mr. Clement replied. "The prophylactic gap here is not large," he added....

Samuel R. Bagenstos, a law professor at Washington University in St. Louis and a specialist in disability rights, represented the inmate and shared the government's side of the argument with Mr. Clement. Chief Justice Roberts addressed the same question to him, adding, "I'm just wondering if that's a reasonable reading of the A.D.A., which I had always understood to change the rights of the disabled."

Mr. Bagenstos replied that there was little difference in the specific context of prisons because "this is one of the few areas where the government has an affirmative constitutional duty."

Gregory A. Castanias, a Washington lawyer arguing for Georgia, said the inmate's claims in this case went well beyond constitutional requirements. Several justices then suggested that the law might be interpreted to apply only to constitutional violations. Justice Scalia asked, "To the extent that it includes constitutional violations, why isn't that lawsuit perfectly O.K.?"
This looks like a rather easy case, though Greenhouse portrays it as a big test of where the Roberts Court will go on federalism cases. It's very much like Tennessee v. Lane, the recent ADA case about access to courtrooms. Congress is beefing up remedies for existing rights, permitting lawsuits for damages. The reference to the "prophylactic gap" -- which must mystify laypersons -- is about proscribing behavior that the constitutional alone would permit. To some extent, defining additional violations is not really the creation of new rights, but is genuinely remedial of existing rights.

In the classic case, as characterized in later cases, the Voting Rights Act of 1965 proscribed various practices but did so as a way of controlling race discrimination, which, of course, violates the Fourteenth Amendment. So the rights prisoners have under the ADA may be more extensive than the Constitution alone gives them, but they could still be viewed as a way to enforce constitutional rights. Complicated, but it looks as though the prisoner will win.


Bruce Hayden said...

I think it a truism that bad facts make bad law. In this case, the reported facts are heart wrenching. A parapalegic left in his cell unable to take care of himself, and to relieve himself properly since he didn't have grab bars. We added those for my mother when she was in a wheelchair, and it was de minimis work and cost. Clearly, if the facts are accurate, that would have been reasonable accomodations.

But the biger question remains, and that is where Ann is, IMHO, going, on the extent that the feds can impose the ADA on the states, given soveriegn immunity.

My question is though whether this sort of heart wrenching facts may result in an unwarrented extension of federal power over the states, due, in a great part, to the empathetic value of those facts. Who could feel good about themselves finding that the state was ok in leaving him in his own shit.

Ann Althouse said...

You pick a good plaintiff to test the rule.

Obviously, there are all sorts of disabilities and demands for accommodation.

the pooka said...

Interesting. Makes me wonder if I'll be teaching this case in ConLaw next year (I hope so -- fecal matter is always a good bet to hold the attention of otherwise cynical, disaffected undergraduates...). And, nice job, Ann, of summing up the case.

At the same time, while I'm generally supportive of Ann's call for progressives to be more supportive of the Court's "new federalism" (most recently alluded to here), the crabbed extent of Congressional power to abrogate state sovereign immunity that we all have to live with post-Seminole Tribe is a notable exception. Alas, the additions of Roberts and (likely) Alito make a return to the salad days of Bitzer and Union Gas unlikely.

Mark said...


Could not agree with you more. By the way, Ann, do you still think that with time, Stevens-Souter-Breyer-Ginsburg view of the sovereign immunity will win? It seems that with Roberts and Alito on board, Scalia-Thomas view is much more reinforced. Also, in Tennessee v. Lane, Scalia seemed to suggest that the "congruency" test developed by Kennedy is unworkable, and the 5th clause of the 14th amen. gives Congress very narrow rights to abrogate sovereign immunity. I wonder if it would push Kennedy to the Stevens' camp.

Anonymous said...

Ann, could you talk more about Tennessee v. Lane? As I heard it described on the radio yesterday, that case was decided on a 5 to 4 vote, with O'Conner joining the majority. The implication was that that case (which is now the precedent) could have gone the other way had it been argued with Alito on the bench.

The question, as they outlined it, was whether a state was required to provide handicapped access to its courts. The plaintiff had "been forced to crawl up the steps of the court building" because there was no ramp. The reporter said that the four justices in dissent felt there was no fundamental violation of rights in that situation.

Is this the sort of States Rights case that we think might go a different way in the future?

goesh said...

I'm not an attorney, but this would seem a better case for cruel and unusual punishment. I'm confused, since an exclusion for disability status is drug use which I read also means possession and distribution, which I believe he was convicted of. He had quadripalegia prior to the drug conviction but his criminal status is that of a convicted dealer. At best, maybe the state's feet can only be held to the fire to accomodate specific rehabilitation services, such as literacy/GED classes, trade skills development classes. This convict is aleady enjoined from equal participation in society. Where is the state's obligation to cater to his needs when he is on his own time in his cell? He is receiving Public accomodation for being a drug dealer, not a quadripalegic.

Matt Barr said...

Has anyone from Daily Kos or anywhere referenced this post to call you a right-wing whack job yet?

Or wasn't it your sovereign immunity discussion that had them doing it last time?

nunzio said...

For all of Prof. Althouse's analysis and criticism of Hibbs, Tennesse v Lane is an even stranger case.

In ADA Title II, Congress allowed for money-damage suits against States that don't provide reasonable accomodations for persons with disabilities in all of its public service and facilities.

The Court in Lane said that this abrogation of sovereign immunity was valid to a sub-set of Title II public facilities, namely state courthouses b/c of the fundamental right to access the courts (Congress factual findings, oh so important in Hibbs and Garrett, offer scant support that States were discriminating against the disabled in access to courts).

So even though abrogation of SI under Title II covered all public facilities, the Court decided an ad-hoc approach is best and let Lane sue Tennessee.

After reading Lane, I'm thoroughly convinced that Seminole Tribe and Hans should be overruled and let Congress sort this mess out by deciding when states can be sued. The Supreme Court can't be trusted with this stuff.