Analysis: Grant in United States v. Georgia and Goodman v. Georgia

By Kevin Russell
on May 16, 2005 at 5:06 pm

Today, the Court granted cert. in the consolidated cases of United States v. Georgia, No. 04-1203, and Goodman v. Georgia, No. 04-1236, to resolve whether Congress validly abrogated the States’ sovereign immunity to prisoner claims under Title II of the Americans with Disabilities Act (ADA). Both petitions arise from the same Eleventh Circuit decision holding the abrogation unconstitutional. (The first petition was filed by the United States, which intervened to defend the constitutionality of the abrogation below, and the second from the plaintiff himself). The case was discussed in detail here at the time the petitions were filed in March. The petitions are available here and here.

[Disclosure: I had some involvement in the United States’ petition in this case when I was working for the Government, and also worked on the the Goverment’s response to the cert. petition in Klingler v. Director, Missouri Department of Revenue, No. 04-585, discussed below].

In brief, the case arises from a lawsuit filed by Tony Goodman, a Georgia inmate confined to a wheelchair due to spinal injuries. Goodman alleges that because of his disability, he is kept in the maximum security wing of the prison and left in his 12-by-3-foot cell for 23-24 hours a day. And because the cell is not wheelchair accessible, he cannot turn his chair around in his cell and cannot access the toilet without assistance, which is frequently denied. Goodman also alleges that because of accessibility problems, he has been denied access to religious services and the prison law library, as well as other prison programs.

Goodman brought suit under Title II of the ADA, which prohibits disability discrimination in the programs, services and activities of public entities. In Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206 (1998), the Supreme Court held that as a matter of statutory construction, Title II applies to discrimination in prisons, but left open whether the statute fell with Congress’s enumerated powers. Last Term, the Court held that Title II fell within Congress’s power to enforce the Fourteenth Amendment as applied to discrimination relating to access to judicial services in Tennessee v. Lane, 541 U.S. 509 (2004). But the Court left open whether the same would be true of Title II’s application to other contexts.

The case represents something of a cross-roads in the Supreme Court’s federalism jurisprudence in general, and Eleventh Amendment line of cases in particular. Starting with City of Boerne v. Flores, 521 U.S. 507 (1997), the Court held that Congress exceeded its power to enforce the Fourteenth Amendment by enacting statutes that prohibited substantially more state conduct than the Court itself had held unconstitutional. Boerne invalidated the Religious Freedom Restoration Act (RFRA), which directly purported to overrule a portion of the Supreme Court’s Establishment Clause jurisprudence. Boerne held RFRA’s substantive provisions unconstitutional and therefore unenforceable against the States. In subsequent cases, however, the Fourteenth Amendment question has been decided indirectly, as part of the test to determine the validity of statutory provisions abrogating States’ sovereign immunity to private enforcement actions. (In Seminole Tribe v. Florida, 517 U.S. 44 (1996), the Court held that Congress had the authority to abrogate States’ sovereign immunity only when it acted pursuant to a valid exercise of its power to enforce the Fourteenth Amendment. Hence, to decide the validity of an abrogation provision, the court must decide whether the statute is valid Fourteenth Amendment legislation). The Court swiftly struck down abrogation provisions under a number of statutes that had little facial relation to core Fourteenth Amendment concerns, like the Fair Labor Standards Act and the federal trademark and patent statutes. On the other hand, in the course of these decisions the Court repeatedly referred to the Voting Rights Act and Title VII of the Civil Rights Act (which prohibits racial discrimination in employment), as quintessential statutes falling within Congress’s Fourteenth Amendment authority.

The question, therefore, is where between these two extremes the Court will ultimately draw the line, and on what grounds. Within the last five years, the Court struck down the abrogation in the Age Discrimination in Employment Act, concluding that it gave too much protection to older workers compared to the Court’s own interpretation of the Equal Protection Clause, but upheld the abrogation in the Family Medical Leave Act on the grounds that it was a reasonable means of preventing gender discrimination in the administration of leave benefits. And the Court has held that Congress exceeded its power when it prohibited disability discrimination in public employment under Title I of the ADA. But last Term in Lane, the Court upheld Title II as applied to state courts on the grounds that the statute was a reasonable prophylactic means of protecting the due process and other constitutional rights implicated by access to judicial services.

Goodman will provide the Court with an opportunity to provide further insight into just how far Congress’s prophylactic and remedial powers extend. It will also permit the Court to provide more precise guidance on how to distinguish valid from invalid Fourteenth Amendment legislation. In Lane, the Court suggested two aspects of Title II’s application to access to courts that distinguished it from the employment discrimination prohibited by Title I, which the Court had held was not valid Fourteenth Amendment legislation: (1) the Court explained that Congress had accumulated substantial evidence of widespread unequal treatment of people with disabilities in the administration of public services, whereas there was little such evidence with respect to public employment; and (2) the Court noted that while disability discrimination in public employment only implicated the Equal Protection Clause’s prohibition against irrational discrimination, discriminatory barriers to access to courts can implicate other constitutional rights (like the Due Process Clause) that trigger higher levels of constitutional protection. This latter feature of the case in Lane is shared by some applications of Title II (for example, as applied to discrimination in voting), but not others (for example, as applied to discrimination in public education). The question will be whether the history of discrimination supporting Title II is enough to carry the day in a case where the discrimination does not implicate constitutional rights that trigger heightened scrutiny.

Goodman presents an interesting intermediate test case. On the one hand, the Supreme Court has held that many constitutional rights entitled to heightened protection in general are subject to only rational basis scrutiny within prisons. On the other hand, because of the State’s pervasive control over individual prisoners, some interests are subject to greater constitutional protection in prison than outside of it. For example, although ordinary citizens have no constitutional right to health care or basic protection from harm, inmates have an Eighth Amendment right to be free from cruel and unusual punishment, which extends to requiring basic health care and protection from serious injuries. And while a State generally can refuse to provide special medical care or accommodations to civilians with disabilities just to save money, financial considerations cannot justify subjecting inmates with disabilities to cruel and inhumane conditions. Thus, as applied to prisons, Title II sometimes implicates rights subject to heightened constitutional scrutiny (like Goodman’s claim that being denied an accessible cell leaves him unable to move around in his cell 23 hours a day), and sometimes not (for example, a claim regarding access to a prison’s recreation or education programs).

The Court may react to this mixture of rights in any number of ways. It may hold that the history of discrimination in public programs in general, and correctional programs in particular, supports Congress’s determination to apply Title II to prisons generally. Or the Court may hold that even if Title II sometimes applies to rights subject to heightened scrutiny in prison, on balance the overbreadth of the statute and the State’s special interest in controlling its penal institutions requires holding the abrogation unconstitutional in all prison applications. Or the Court may take yet a further step in the development of its “as applied” approach to these problems, and subdivide the prison context into different types of claims (e.g., claims relating to medical care or safety) or into categories of claims implicating different constitutional rights (e.g., Eighth Amendment, rational basis scrutiny under the Equal Protection Clause, etc.).

In the end, it is virtually certain that the decision will ultimately be Justice O’Connor’s to make. With one exception, all of the Court’s recent Eleventh/Fourteenth Amendment cases have been decided 5-4. (The exception was the Family Medical Leave Act case in which, many believe, the Chief Justice sided with Justice O’Connor and the usual dissenters in order to control the writing assignment). And O’Connor cast the deciding vote in Lane. The prison context will provide a particularly difficult case for a pragmatist like O’Connor, who will presumably recognize both that violations of the ADA in the prison context can have devastating results for individual inmates and that inmates are particularly likely to abuse a right to sue the State.

Finally, a note about consequences and other pending petitions. Whatever the decision in Goodman, it is likely to spawn additional litigation. A decision in Goodman’s favor will likely require lower courts to re-examine their post-Lane decisions in other contexts in light of whatever additional guidance can be gleaned from the decision in this case. A decision against Goodman will create an entirely new set of complicated constitutional problems. In most of the Court’s prior cases striking down abrogation provisions, there was no question that the substantive provisions of the acts remained in effect, although not subject to enforcement through private suits against the States. That was because each of those cases regulated areas such as employment or patents, where Congress clearly had authority under an Article I power to enact the substantive provisions of the statute. The same is not necessarily true of Title II of the ADA. Were the Court to hold Title II invalid Fourteenth Amendment legislation in the prison context, it would raise the very difficult question of whether Congress has the power under the Commerce Clause to prohibit disability discrimination in State prisons.

This consequence is illustrated in the pending petition in Klingler v. Director, Missouri Department of Revenue, No. 04-585. In that case, decided just before Lane came down, the Eighth Circuit held that Title II was invalid Fourteenth Amendment legislation as applied to the administration of a State’s program for providing handicap parking placards. As a consequence, the State’s sovereign immunity barred the plaintiffs’ damages claims. The court further held that the plaintiffs could not seek an injunction to enforce the Act in the future against state officials (a type of claim not barred by sovereign immunity) because Title II was beyond any of Congress’s enumerated powers, since prohibiting disability discrimination in the administration of a state licensing program was beyond Congress’s Commerce Clause authority.

Interestingly, the Court chose not to grant or deny the petition in Klingler today. Rather it appears that the case is being held, perhaps for Goodman or Raich v. Gonzales, No. 03-1454, raises some related Commerce Clause issues. But the petition gives a preview of the complications that may follow.

The briefing in Goodman will take place over the summer and early fall, with argument likely in December.