Tennessee v. Lane

Transgender military ban: The Ninth Circuit Decision

June 17, 2019 by William Goren 1 Comment

Some weeks are a bit of a struggle trying to figure out what to blog on. Law360 is a tremendous help. Also, I keep a pipeline of cases as well. However, sometimes I’m just not in the mood to blog on what is in my pipeline. So, I looked at all of my law 360 alerts and lo and behold Karnoski v. Trump came down from the Ninth Circuit. My daughter and I teach at our synagogue during the school year. Our synagogue, Congregation Bet Haverim, was originally founded as the home for gay and lesbian Jews in Decatur Georgia. Since then, it has also become a welcoming place for the heterosexual community as well. It is a reconstructionist synagogue. Reconstructionism (think reform with a strong sense of community), is an offshoot of the conservative Jewish movement. So, while our liturgy would be very familiar to any Jewish person in the conservative movement, our synagogue is very big on social justice. That said, it is also very interested in a big tent where everyone is welcome, and the rabbi takes that very seriously. So, when I teach at the religious school during the year, I am constantly weaving in case law into my classes. Of course, considering our synagogue’s history and my own professional and personal background, we talk quite a bit about disability discrimination and LGBT as they get analyzed in the courts. We actually talked about our case of the day in my class last year (I teach the seventh grade). Our case of the day is Karnoski v. Trump, opinion can be found here, the Ninth Circuit’s recent decision of June 14, 2019, discussing the military ban on transgender individuals with gender dysphoria. As everyone knows, I follow this area closely because gender dysphoria is a disability under the ADA, and I have always been interested in just how the equal protection clause will be interpreted with respect to the LGBT community when compared to the disability community. As usual, the blog entry is divided into categories and they are: introduction; court’s reasoning equal protection; court’s reasoning executive privilege; court’s reasoning deliberative process privilege; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

Introduction

The opinion is fascinating in a couple of different ways. First, it is a published decision without an author, i.e. a per curiam opinion. You don’t see a lot of published decisions without an author. Second, the decision is unanimous. Third, the decision goes 58 pages, but fully 38 pages of that decision is spent detailing the procedural history of the case. Turning to the facts, I am not going to go into 38 pages of facts. Basically, before President Obama left office, he encouraged the Secretary of Defense to study whether transgender individuals should serve in the military. The result of those efforts was a decision that they should. However, President Trump was none too pleased with that. Accordingly, he tweeted that transgender individuals were not going to serve in the military. That led to implementation of the ban and to lawsuits. The lawsuits basically said that the military didn’t do its due diligence and so therefore, the ban should be thrown out. As a result of those lawsuits, the military went through the process of studying the matter, and a report was issued talking about when transgender individuals and those with gender dysphoria could serve or not. That led to more lawsuits including discovery disputes over how the process evolved and what went into the process of coming up with the final report. The District Court did not give the administration much of a choice but to declare executive privilege and deliberative privileges with respect to the discovery disputes. Also, the District Court held that transgender individuals were in a suspect or quasi-suspect class for equal protection purposes. Accordingly, all of that gets appealed to the Ninth Circuit.

Court’s Reasoning: Equal Protection

Citing to a Supreme Court decision, the Ninth Circuit said that when it comes to equal protection classifications based on gender, the level of justification is “exceedingly persuasive.” That is, the justification has to be genuine and not hypothesized or invented in response to litigation and must not rely on overbroad generalizations about the different talents, capacity, or preferences of males and females. Also, physical differences between the sexes should not be used to denigrate either sex. In short, the Supreme Court requires something more than rational basis review but does not require strict scrutiny.
With respect to judicial scrutiny of a military decision based on sexual orientation, the Ninth Circuit has previously said that the government has to advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest. In other words, is a less intrusive means unlikely to achieve substantially the government’s interest.
Citing to city of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), the heightened scrutiny must be applied to the specific circumstances rather than just generally.
So, while the military is entitled some deference, that doesn’t mean intermediate scrutiny goes away.
In applying intermediate scrutiny on remand, the District Court does not get to substitute its own evaluation of evidence for a reasonable evaluation by the military. However, that deference doesn’t mean just accepting the military’s point of view at face value. The military bears the burden of establishing that they reasonably determined the policy significantly furthers the government’s important interest, and that is not a trivial matter.

III

Court’s Reasoning: Executive Privilege

The presidential communication privilege is a presumptive privilege for presidential communications that preserves the president’s ability to obtain candid informed opinion from his advisors and to make decisions confidentially. Accordingly, that privilege protects communication directly involving and documents actually viewed by the president as well as documents solicited and received by the president or his immediate White House advisors with broad and significant responsibility for investigating and formulating advice given to the president. That privilege covers documents reflecting presidential decision-making and deliberations regardless of whether the documents are predecisional or not and it covers the documents in their entirety.
The deliberative process privilege is something else entirely. That privilege protects document reflecting advisory opinions, recommendations, and deliberation comprising part of the process by which governmental decisions and policies are formulated. For that privilege to apply, material has to be predecisional and deliberative. That privilege also does not protect documents in their entirety. If the government can segregate and disclose nonprivileged factual information within a document, it has to do so.
Since the plaintiff’s have a meritorious argument that the 2018 policy did not independently analyze the impact of transgender individuals serving in the armed services, but rather implemented the 2017 memorandum, both forms of executive privilege are at issue here.
Executive privilege is an extraordinary assertion of power that should not be lightly invoked because it sets up an immediate confrontation between two branches of government. Accordingly, when dealing with a dispute over whether subpoenas are unnecessarily broad, that conflict should be avoided whenever possible. In that situation, courts are urged to explore other avenues short of forcing the executive to invoke the privilege.
A president does not have to assert the presidential communication privilege to specific documents covered by discovery requests before lodging a separation of powers objection.
On remand, while the District Court should give due deference to the presidential communication privilege, the District Court also needs to realize that that deference is not absolute.
In an executive privilege situation, plaintiffs have to make a preliminary showing of demonstrating that the evidence sought is directly relevant to issues expected to be central to the trial and is not available with due diligence elsewhere. If the plaintiff shows that the discovery requests are narrowly tailored to seek evidence directly relevant to the central issues in the litigation and that evidence is not available with due diligence elsewhere, plaintiffs meet their preliminary burden. Once that burden is met, then the president gets the opportunity to formally invoke the privilege and make very specific objection to show that the interest in secrecy or nondisclosure outweighs the need for responsive materials. Then, it is up to the District Court to conduct an in camera review before any materials are turned over to the plaintiff’s so that nonrelevant material can be taken out and so that presidential confidentiality is not unnecessarily breached.

Court’s Reasoning: Deliberative Process Privilege

A plaintiff can obtain deliberative materials upon a showing of a need for the materials and that the need for accurate fact-finding overrides the government’s interest in nondisclosure. Whether the exception applies involves looking at: 1) the relevance of the evidence; 2) the availability of other evidence; 3) the government’s role in the litigation; and 4) the extent to which disclosure hinders frank and independent discussion regarding contemplative policies and decisions.
The record is not adequate to evaluate the relevance of all the requested information in terms of balancing production of materials against the military’s confidentiality interest. Also, the District Court needs to carefully consider the military’s interest in full and frank communications about policymaking. One way to deal with all of this is for the District Court to conduct discovery in stages. After all, documents involving the most senior executive branch officials may require greater deference than other kinds of documents, though of course, those documents may be the most relevant as well.

Thoughts and Takeaways

I feel sorry for the District Court when it comes to dealing with this case on remand. What the District Court is supposed to do is far from clear. We do know the Ninth Circuit believes transgender individuals are not in the rational basis class, but what class are they in? The Ninth Circuit opinion is really confusing because it specifically refers to “intermediate scrutiny,” but it also cite to the Cleburne decision. The two aren’t the same. Intermediate scrutiny is what we think of with respect to what Justice Ruth Bader Ginsburg established in her advocacy before the Supreme Court when she was a practicing attorney. Cleburne is another animal entirely. Ostensibly, Cleburne was a rational basis case. However, Justice Marshall in that decision noted that it would be more accurate to call Cleburne a rational basis plus decision. To my mind, rational basis plus is a step below intermediate scrutiny. Being the former professor that I am, I would analogize it to rational basis scrutiny being a C, rational basis plus being a C+/B-, intermediate scrutiny being a B, and suspect class being an A. I don’t see how you can say that Cleburne and the intermediate scrutiny cases are the same equal protection classification.
While the military gets deference, that deference is not absolute. However, as with the equal protection classification, it is very unclear just where the deference ends and judicial checks begin.
The court makes it clear that the District Court is supposed to do everything in its power to prevent claims of executive privilege and deliberative process privileges.
If those claims cannot be prevented, then executive and deliberative process privileges need to be respected but that respect is also not absolute. Again, unclear.
It is revolutionary that transgender individuals are being put in a class higher than rational basis (the LGBT Supreme Court decisions all stayed away from equal protection classifications in their decision. Instead they focused on other concepts, such as liberty and due process). It will be interesting to see whether this holds. If it holds that transgender individuals are in a class higher than rational basis, that decision could have broad ramifications beyond just the question of whether a transgender individual has a right to serve. It also means that transgender individuals will in at least some cases, be in a higher equal protection class than individuals with disabilities (under Tennessee v. Lane, the equal protection class for people with disability varies depending upon the circumstances of the case).
The Ninth Circuit is essentially holding that discrimination against a transgender individual is sex discrimination, a point the Supreme Court has never considered but will do so next year. One wonders how that also will impact on this.
For those trying to keep track of all the privilege claim that President Trump is currently making, this case is a nice introduction to the executive and deliberative process privileges.

Another Arrow in the Bag for Plaintiffs when it Comes to Disability Discrimination by Governmental Entities

December 5, 2018 by William Goren 2 Comments

Before getting started on the blog of the week, I want to express my condolences to the Bush family on the passing of George H.W. Bush. He signed the Americans With Disabilities Act on June 26 of 1990. His son also has a powerful legacy in that regards as he signed the ADAAA. Simply put, for my ability to participate in the mainstream world as well as the specialty I have carved out for my legal career, I owe a great debt to both of them. In keeping with their legacy, I was incredibly moved that H.W.’s service dog was front and center in the papers. G-D speed H.W. May H.W. rest in peace.

Today’s case will revolutionize the consequences for what happens when a nonfederal governmental entity, and possibly a federal governmental entity as well, discriminates on the basis of disability. As I have mentioned before, at least once a month, I get a call about a court system somewhere around the country discriminating against a person with a disability before it. Previously, I have written about two different cases involving suing court systems successfully for disability discrimination. A discussion of those cases can be found here and here.

The case of the day is a case from the Sixth Circuit decided September 25, 2018, Bullington v. Bedford County, Tennessee, which can be found here. As usual, the blog entry is divided into categories and they are: facts; opinion for the court; concurring opinion; and takeaways/thoughts. The reader is free to focus on any or all of the categories.

Facts

Bullington worked as a dispatcher at the Bedford County Sheriff’s Department for eight years. Sometime during that period, she developed Hodgkin’s lymphoma that was treated with chemotherapy. However, the chemotherapy caused neuropathy and scar tissue in her lungs so that she needed additional treatment. As a result of that diagnosis and treatment, she asserted the department treated her differently than the other employees. She filed suit alleging: violation of her constitutional rights under the 14^th amendment to be free from discrimination and retaliation; violation of her constitutional rights because the County did not provide adequate supervision and training; violation of the Tennessee human rights act; and violation of the ADA. The defendant moved for judgment on the pleadings, which was granted by the District Court, and Bullington appealed.

Opinion for the Court

Plaintiff admitted that she did not file a charge with the EEOC. Accordingly, she did not exhaust administrative remedies. Further, while she may have followed prior counsel’s advice on whether to file a charge with the EEOC, which was mistaken, that is not enough to allow for equitable tolling. Accordingly, the ADA claim has to be dismissed.
Determining whether Congress precluded a remedy under §1983 turns on congressional intent.
A distinction exists between §1983 claims premised on constitutional violations and those based on statutory violations in determining whether a §1983 claim is precluded.
Where the contours of rights between the statutory claim and the constitutional protection diverge in significant ways, it is not likely that Congress intended to displace §1983 suits involving important constitutional rights.
Both the Third and the Eighth Circuits have held that the ADA does preclude §1983 claims for violations of the ADA. Even so, that is not what is going on here. Rather, plaintiff alleges constitutional violations and not violations of the ADA itself. So, her claims are being brought under the 14^th amendment’s equal protection clause and not under the ADA.
Several Circuits have allowed constitutional claims to be brought under §1983 even where the plaintiff’s constitutional claims run parallel to claims brought under analogous statutes. Further, other courts have allowed plaintiffs to pursue claims under §1983 for disability discrimination even when they run parallel to ADA violations.
The court looked to a Supreme Court case, Fitzgerald v. Barnstable School Committee 555 U.S. 246 (2009), holding that a §1983 claim for an equal protection violation was allowed to run parallel to a title IX claim. In reaching that decision, the Supreme Court look to title IX’s enforcement mechanism, the scope of title IX rights and 14^th amendment rights, and to the context and history of title IX.
Based upon Fitzgerald, there are three things to consider when examining congressional intent to preclude a constitutional claim, and they are the statute’s: text and history; remedial scheme; and the contours of its rights and protections.
The burden of proving preclusion of a §1983 claim lies with the defendant.
Neither the statutory text nor the legislative history of the ADA contains a clear indication of congressional intent to preclude simultaneous constitutional claims.
42 U.S.C. §12201(b) expressly provides that nothing in the ADA shall be construed to invalidate or limit remedies, rights, and procedures of any federal law or law of any State or political subdivision of any State or jurisdiction providing greater equal protection for the rights of individuals with disabilities than afforded by the ADA. Such language is strong evidence that Congress did not intend to preclude remedies under §1983 for constitutional violations.
The Committee on Education and Labor’s report as well as the Committee on the Judiciary’s report both make clear that the ADA was not intended to preclude other remedies, including those of constitutional law.
The ADA’s relation to title VII of the civil rights act also suggests that Congress did not intend to include alternative remedies for disability discrimination as the ADA uses the procedures set forth in title VII. That relationship is important because at the time Congress passed the ADA in 1990, courts frequently held that the comprehensive scheme provided in title VII does not preempt §1983, and that discrimination claims may be brought under either statute, or both.
At the time Congress enacted the ADA, the Sixth Circuit had already allowed plaintiffs to bring parallel concurrent title VII and §1983 constitutional claims.
Congress’s presumed familiarity with title VII case law and the numerous references to title VII within the ADA suggest that Congress could not have intended for the ADA to preclude a §1983 claim.
With respect to title II of the ADA, it’s remedies are tied into title VI of the Civil Rights Act. Title VI of the Civil Rights Act as far back as 1967 was routinely interpreted to allow for parallel and concurrent §1983 claims.
Where an employee establishes employer conduct violating both title VII and rights derived from another source, whether it be the Constitution or federal statutes existing at the time of the enactment of title VII, the claim based on the other sources are independent of the title VII claim.
In 2012, the Sixth Circuit held that a §1983 claim regarding a constitutional violation could survive despite title VII.
Where the contours of such rights and protections between the two laws diverge in significant ways, it is not likely that Congress intended to displace §1983 suits enforcing constitutional rights even where there is some overlap in coverage.
Rights created by the ADA are strikingly different from those already protected by the equal protection clause as the stated purpose of the ADA as found in 42 U.S.C. §12101(b)(1)-(3) is: providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; and to ensure that the federal government plays a central role in enforcing standards set forth in the ADA on behalf of individuals with disabilities.
In addition to invoking its power under §5 of the 14^th amendment, Congress also invoked a broad power under the commerce clause.
The protections available under the ADA and the equal protection clause are critically different from each other. For a person to prove an ADA claim, the plaintiff has to show: that she was in a class of persons protected by the ADA; that she was otherwise qualified for the position; that she suffered an adverse employment action; that the employer knew or had reason to know of her disability; and that the adverse employment action occurred under circumstances raising a reasonable inference of unlawful discrimination.
The equal protection clause requires a very different showing than the ADA. With respect to the equal protection clause, citing to Heller v. Doe, 509 U.S. 312 (1993), and to Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), a plaintiff has to show that there was no rational basis for the State action to treat her differently because of her disability.
Given the different requirements for proving the claim under the ADA and the equal protection clause, it makes sense that even if the comprehensive remedial scheme of the ADA somehow precluded utilizing §1983 to assert an ADA violation, the plaintiff still gets to assert a violation of the equal protection clause based on alleged disability discrimination through 1983.
Since both the rights created by the ADA and the equal protection clause very significantly as do the elements required to prove both of those claims, that evidences a lack of congressional intent that the ADA precluded separate enforcement of individuals with disabilities constitutional rights.

III

Concurring Opinion of Judge Kethledge

Extrinsic materials like legislative history have a role in statutory interpretation only to the extent they shed a reliable light on the enacting legislature’s understanding of otherwise ambiguous terms.
Legislative history by itself has zero significance in statutory construction. Legislative history only matters to the extent it clarifies a specific ambiguity in the statutory text.
Nothing in the text or structure of the ADA supports preclusion of a parallel constitutional claim. Accordingly, that is reason enough to hold that the ADA and constitutional claims can parallel each other. Therefore, referring to legislative history to justify that conclusion is completely unnecessary.

Takeaway/Thoughts

This case is absolutely huge with respect to the consequences of what happens when a State court engages in disability discrimination. Now, under this decision, a person with a disability has parallel tracks they can pursue (the ADA as well as procedural and substantive due process).
Very interesting that the court cites to Heller and Board of Trustees of the University of Alabama for two reasons. First, as I have written in all of the Editions of my book, Understanding the ADA, which can be found here, in Heller, the United States Supreme Court assumed that persons with disabilities were in the rational basis class since both parties didn’t contest that. It is true that Board of Trustees of the University of Alabama said that persons with disabilities with respect to employment are in the rational basis class. However, Board of Trustees of the University of Alabama relied upon Heller, where a rational basis classification was assumed without argument, and upon Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), which would be more appropriately classified as a rational basis plus classification. So, putting persons with disabilities in the rational basis class with respect to employment does not follow squarely from precedent.
Regardless of persons with disabilities being classified in the rational basis class when it comes to employment not squarely following from precedent, it is now settled that persons with disabilities are in the rational basis class with respect to employment. However, that is simply not the case with respect to title II of the ADA. Under Tennessee v. Lane, 541 U.S. 509 (2004), which we discussed here, when it comes to accessing the courts, persons with disabilities are in a much higher classification than rational basis. Accordingly, that means rebutting an equal protection violation or a substantive due process violation under title II of the ADA means the State showing it had a compelling interest in the discrimination. Considering the ADA, that is going to be an almost impossible bar for the State to jump over.
Since the equal protection clause and the substantive due process clause mirror each other, one wonders whether this decision cannot be used to address disability discrimination by a federal court, where it happens, even though the federal courts are not subject to the ADA.
Will the courts split on this thereby leading to a U.S. Supreme Court decision? Hard to tell. However, the concurring opinion provides a way for the courts to avoid splitting, as any split would likely come from judges that frown on legislative history. It is possible, even if it is very unlikely, that the United States Supreme Court could decide to hear a matter without a split among the Circuits.
Title I of the ADA requires exhaustion of administrative remedies, but keep in mind, that title II and title III of the ADA do not. When exhaustion is required is absolutely something the attorney has to know unless they want to be contacting their malpractice carrier.
The concurring opinion believes that it was so clear that the ADA does not preclude equal protection claims that you don’t even have to look at legislative history. That is important because many people on the U.S. Supreme Court don’t like to look at legislative history unless they have to. That said, it is concerning that this is a title I case as persons with disabilities have not fared well at the Supreme Court level when it comes to disability discrimination in employment. I would feel more comfortable about a person with a disability chances at the Supreme Court over the issue of constitutional law and the ADA running in parallel to each other if this was a title II case.
Failure to provide training on the ADA possibly could violate a person with a disability equal protection rights under this decision.
The burden of showing preclusion is on the defense.

I am figuring on one more blog entry before our annual greatest hits issue. I have an entry in mind, but you never know what will come up.

Sovereign Immunity in the Absence of Constitutional Violations

November 15, 2017 by William Goren 3 Comments

The capitol Building — Legislative Branch

After a two-month period, where my computer was completely on the fritz, I may have finally fixed it. It turns out that Windows itself had become corrupted and that it needed to reinstall Windows. Once I did, that fixed the problem. You wouldn’t believe what I went through before I finally got to that point. Nevertheless, things are good to go, and I couldn’t be more excited. Next week is Thanksgiving week, and I will be in Chicago doing the family thing. So, I will be taking the week off. Accordingly, this is going to be my last blog entry for the next couple of weeks until the week after Thanksgiving. I do want to wish everybody a happy Thanksgiving and safe travels if you are traveling.

Today’s case came to me from Larry Berger, a member of the deaf and hard of hearing Bar Association. If you are a deaf/Deaf/hard of hearing attorney, I highly recommend the Association. It turns out that the attorney for the plaintiff is someone that I know and am quite familiar with her work, Mary Vargas of Stein and Vargas. She was kind enough to send me the decision since I could not find it on Lexis or Google scholar. Congratulations to Mary! The case is Reininger v. State of Oklahoma (CIV-16-1241-D) decided by the Western District of Oklahoma on November 9, 2017. As is usual, the blog entry is divided into categories, and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts:

The facts are pretty straightforward. The plaintiff is deaf and tracks the status of state legislative bills, particularly ones affecting persons with disabilities. The Oklahoma State Senate, the Oklahoma House of Representatives, and their respective leaders maintain Internet websites showing live feeds of legislative hearings and proceedings. Plaintiff claimed that he did not have meaningful access to this information because the audio content of the online broadcasts is not captioned, and so he cannot understand what is being said. He contacted both legislative bodies about the lack of captioning and asked them to bring the websites into compliance with federal disability discrimination laws. While apparently noncompliance was admitted, captioning was not provided due to budgetary constraints. Allegedly captioning would be cost prohibitive and technologically difficult. As an alternative, interpretive services were offered to the plaintiff if the plaintiff were to give advance notice that he wanted to attend a proceeding. Plaintiff then brought suit alleging violations of title II of the ADA and §504 to Rehabilitation Act and sought declaratory judgment, compensatory damages, and injunctive relief. Defendants defended on the grounds of sovereign immunity under the 11^th amendment and also defended under the 10^th amendment as well.

Court’s Reasoning

In rejecting the defendants 11^th and 10^th amendment claims, the court reasoned as follows:

No doubt exists that Congress intended to waive sovereign immunity of the States regardless of their consent when it came to the ADA. So, the only question is whether that waiver is consistent with the enforcement clause of the 14^th
When it comes to title II and sovereign immunity, three questions must be addressed at the outset: 1) what aspect of the State’s alleged conduct violated title II; 2) to what extent such misconduct also violated the 14^th amendment; and 3) if the misconduct violated title II but not the 14^th amendment, whether Congress’s purported abrogation of sovereign immunity with respect to that class of conduct is nevertheless valid.
The particular conduct alleged in the complaint was failure to caption streaming video of legislative sessions.
Plaintiff did not allege a violation of the 14^th amendment in his complaint.
Once the initial questions with respect to sovereign immunity, mentioned above, are addressed, three other questions have to be considered in order to assess whether the legislation is consistent with the enforcement clause of the 14^th amendment and they are: 1) the nature of the constitutional right at issue; 2) the extent to which Congress’s remedial statute was passed in response to a document history of relevant constitutional violations; and 3) whether the Congressional statute is congruent and proportional to the specific class of violations at issue given the nature of the relevant constitutional right and the identified history of violations.
The overarching issue here is the citizen’s right to participate in the political process and to have meaningful access to the tools necessary for such participation.
The fundamental right of access to the courts and participation in court services is analogous to the right to participate in the political process impaired by a lack of access to legislative statements by elected representatives. Physical access to a public forum doesn’t mean anything if the person with the disability is denied access to publicly available information that allows equal participation in the political process.
The right to engage in the political process equally to others is encompassed in the First Amendment right to petition the government for redress of grievances. If a citizen cannot access information about the legislative positions of his or her representative, then the citizen’s ability to adequately petition the government and participate in the political process is severely impaired.
The United States Supreme Court has recognized a First Amendment right of the public to receive suitable access to social, political, aesthetic, moral, and other ideas and experiences through broadcast media. Any restrictions on the broadcasting industry has been for the purpose of securing the public’s First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern. By analogy, the same thing applies to the Oklahoma legislature when they are engaged in Internet broadcasting of proceedings to the public, thereby, creating an analogous right of access to the information about state legislative matters.
The right to meaningful participation in the political process and the right of access to publicly available information needed to participate in that process is a fundamental right and therefore, subject to heightened scrutiny.
A historical record and pattern of constitutional violations existed when it came to enacting title II of the ADA. In particular, discrimination against individuals with hearing loss was explicitly mentioned in a variety of different contexts.
While the ADA does not have a requirement for legislative proceeding to be broadcasted, it does require that a qualified individual with a disability be afforded equal participation and benefits of the services, programs, or activities of a public entity. That was necessary because of discrimination against persons with disabilities persisting in such areas of public accommodation, education, transportation, communication, recreation, voting and access to public services. Here, plaintiff is clearly a qualified person with a disability and legislative proceedings are activities of a public entity with the Internet broadcast of those proceedings being a public service.
In a footnote, the court noted that public accommodations may not be limited to buildings and physical structures, but also noted that courts have gone both ways on the matter.
Since a fundamental right is involved, title II of the ADA is a proportional response to the harm being redressed, and especially so, since title II allows public entity to assert affirmative defenses of undue burden and fundamental alteration so that required accommodations are not overly burdensome.
In a footnote, the court said that even if a citizen’s right to meaningful participation in the political process and to access publicly available information needed to participate in that process was not a fundamental right, sovereign immunity was still properly waived because of pervasive unconstitutional state conduct. That is, you also have here: 1) a persistent pattern of exclusion and irrational treatment of persons with disabilities; 2) gravity of harm from such discrimination; and 3) limited compliance costs.
Finally, the court found that any 10^th amendment claim was premature as that went to the relief to be granted rather than whether the case could go forward.

Takeaways:

I have seen over and over again defendants claim that sovereign immunity applies unless a constitutional violation is alleged. That is simply not the law, and this case makes that point clear.
This court does a nice job of laying out the analytical framework for dealing with sovereign immunity questions. It is a two-step process with six different questions.
The right to meaningful participation in the political process and the right of access to publicly available information needed to participate in that process are fundamental rights.
The way sovereign immunity works, as we have discussed previously, is once the equal protection category is determined, the rest of the analysis follows without difficulty. Here, since a fundamental right was found, that means a law could require just about anything and it will be a proportionate response to the harm being redressed.
Very interesting that the court in a footnote saw fit to mention that places of public accommodations very well may extend beyond buildings and physical structures, a point which we have discussed extensively in the blog.
The court also left itself an out if somehow a fundamental right was not found to be by saying that the plaintiff could also win under the pervasive unconstitutional state conduct theory.
I have never seen a 10th amendment claim before. The court doesn’t rule it out, but says that it is premature at the pleading stage.
This case should be a wake-up call for public and even private entities using live video, but not captioning them. It’s a real problem. Just within the last month, I have run into this issue with respect to three webinars that I either eventually attended or wanted to attend. No, I didn’t do anything legally but I could have….

HAPPY THANKSGIVING!

Tennessee v. Lane

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