In a previous blog entry, I talked about the principle of sovereign immunity as it applies to persons with disabilities. As mentioned in that blog entry, a state, including an arm of the state, is not going to be forced to waive its sovereign immunity with respect to disability discrimination in employment matters. With respect to title II matters, that is a bit more complicated because as we discussed previously, it is going to depend upon the facts of the case. To recap, before a state can be forced to waive its sovereign immunity, the court would have to find that Congress specifically stated that states will waive their sovereign immunity and that the particular law at issue is an appropriate enforcement of the equal protection clause of the 14th amendment. That is, that law must be proportional to the harm being redressed. As mentioned in that previous blog entry above, it will come down to what protected class the person is in for purposes of equal protection jurisprudence. The higher the class, the more likely the forced waiver of sovereign immunity is to survive.
Principles discussed in that blog entry also apply to other areas as well. For example, it could be a situation where an entity does not defend based on sovereign immunity but says that the law itself is unconstitutional because it is not an appropriate enforcement of the equal protection clause. That was the case in Mason v. City of Huntsville, Alabama, _ F. Supp. 2d _, 2012 WL 4815518 (N.D. Ala. October 10, 2012). In that case, two plaintiffs, both residents of Huntsville Alabama, sued the city of Huntsville Alabama for violations of the Americans with Disabilities Act and the Rehabilitation Act of 1973. Id. at *1. In particular, they claimed that several locations owned, operated and maintained by the city of Huntsville were not accessible to them. Id. at *2-3. They sought attorney fees and injunctive relief and costs. Id. at *1. While the city of Huntsville did not defend on the grounds of sovereign immunity (it couldn’t because cities are not sovereigns) ( see Board of Trustees of University of Alabama v. Garrett 531 U.S. 356, 369 (2001)), it did claim that title II of the Americans with Disabilities Act went too far. That is, with respect to the violations of the Americans with Disabilities Act that the plaintiff were alleging, title II of the Americans with Disabilities Act was not a proportionate response to the harm seeking to be redressed and therefore was unconstitutional. Mason 2012 WL 4815518 at *6.
The court broke down the plaintiffs claims into three different categories: sidewalks, curb ramps, and parking; municipal administration facilities; and entertainment and recreation venues. Id. at *8. With respect to sidewalks, curb ramps, and parking, the first question the court had to address was whether the Americans with Disabilities Act applied to that in the first place. The court, relying on the Rehabilitation Act of 1973, which covers anything that a public entity does, said that the Americans with Disabilities Act does apply to sidewalks, curb ramps, and parking. Id. Next, you have to figure out whether sidewalks, curb ramps, and parking were subject to rational basis review or something higher. The court noted that sidewalks, ramps, and parking areas are used primarily to facilitate the public transportation of people, goods and commerce, but they also could be used for the purposes of assembly. Id. at *9. In this case, while the plaintiff alluded to the First Amendment (the assembly piece) in their response to the motion to dismiss, they did not plead any such facts. Id. Accordingly, the court said that only rational basis scrutiny is implicated when analyzing the question of sidewalks, curb ramps, and parking areas. Id.
Since only rational basis was indicated, that means that the plaintiff’s lost with respect to whether title II of the Americans with Disabilities Act was a proportional response to the harm being redressed? Not so fast, the court said. Turning to a House report, the court noted that people with disabilitie have suffered harms resulting from construction of transportation, architecture and communication barriers, and that transportation was the critical piece that enables persons with disabilities to be integrated into the mainstream of society. Id. at *10. Further, accessible transportation promotes the self-reliance and self-sufficiency of people with disabilities that enables them to get to work and vote thereby allowing them to exercise their rights and obligations as citizens. Id. Accordingly, despite sidewalks, curbs, and parking areas constructed after 1992 being in the rational basis class, the court found that title II of the Americans with Disabilities Act was a proportional response to the harm being redressed, and therefore, was within congressional authority to enact. Id. at *11.
With respect to municipal administration facilities, the court said that denying the use of municipal administration facilities based on a person having a disability implicated fundamental rights to speech, assembly and association. Id. Therefore, heightened scrutiny applied to the issue of municipal administration facilities discriminating based on disability. Id. Heightened scrutiny is a very difficult standard to meet and is rarely met. That is, the defendant would have to show that there were grave and immediate dangers to interests that the state may lawfully protect, which they couldn’t do. Id. Accordingly, the court found that title II with respect to municipal administration facilities, was a proportional response to the harm seeking to be redressed. Id.
With respect to entertainment and recreation venues, the the court noted that the class at issue might vary depending on whether some of those facilities house educational programs and library resources because in the 11th circuit, there is a vital, though not fundamental, right of equal access to education. Id. at *12. However, the plaintiffs did not claim that any educational program for library resources were involved. Id. The court, relying on another case, from the northern district of Georgia, said that while there was no separate constitutional right to access parks and recreation facilities, nevertheless, a person could allege that such discrimination was irrational. Id. Accordingly, entertainment and recreation venues fell in the rational basis classification. Id. Once again, the plaintiff prevailed even though rational basis is the class at issue. In particular, the court noted that title III prohibits discrimination and that it would be completely illogical for Congress to prohibit discrimination in places of public accommodations, title III, but allow it for public entities, title II. Id. Such an inconsistency would also contravene the purpose of the Americans with Disabilities Act. Id. Finally, because title II of the Americans with Disabilities Act allows a governmental entity a great deal of flexibility when it comes to carrying out its provisions of the regulations implementing title II, a public entity is not unduly burdened by the statutory requirements. Id. Accordingly, the court found that title II of the Americans with Disabilities Act was a proportional exercise of congressional power even though entertainment and recreational venues would be in the rational basis class. Id.
This case is also notable for something else as well. That is, the plaintiffs allege that there was an independent violation of the Americans with Disabilities Act because the city of Huntsville Alabama, as is common to public entities, did not do a self-evaluation plan or develop a transition plan per the requirements of the Americans with Disabilities Act. While the court said that such a failure did not give rise to an independent cause of action for violating the Americans with Disabilities Act because the DOJ regulations were not from an express mandate of the ADA, it could be used as evidence of overall ADA noncompliance. Id. at *14-15.
Thoughts: As noted in the previous blog entry, equal protection jurisprudence breaks down into what class you fall into. It used to be that those classes were rigid. However, those classes are breaking down. For example, you are now seeing cases throwing out laws even if they are subject to rational basis review. In addition to this case, which didn’t throw out a law but rather allowed it (flip side of the same principle), one could also look at the cases throwing out restrictions against gays and lesbians. Frequently, those restrictions are being thrown out saying that the restrictions are just subject to rational review and that the restrictions are irrational and therefore unconstitutional. The problem with equal protection jurisprudence with respect to dividing people into classes is that it is inherently divisive. That is, what if one group of people is in the lowest class while other groups of people are in higher classes, especially where a group of people may be in the rational basis class (a much harder class than the others for challengers). Also, since persons with disabilities may change the classification depending on the facts, one wonders if the classification system may be a bit arbitrary. In short, it will be interesting to see how the classification systems holds up or evolves over time. For example, Justice Stevens, now retired, has written in the past that this whole system of equal protection jurisprudence was problematic. Since the system has been around for a long time, one wonders if it would be replaced and if so by what?
While a specific cause of action for violating the Americans with Disabilities Act for not doing a self-evaluation plan for transition plan is not in play under this case, this case does suggest that it would be a good idea for the public entity to review their programs and do a self-evaluation plan and transition plan even though the deadline for doing that has long passed, early 1990’s, so as to prevent a plaintiff from bringing forth the failure to do so as evidence of overall noncompliance with the Americans with Disabilities Act.