Webcast: Lane vs. Tennessee, implications for Title II of the Americans with Disabilities Act. Presenter: Edward W. Correia. >> OPERATOR: Okay, ma'am, I'm going to go ahead and transfer the lines over and whenever you hear the music stop then you can go ahead and begin. >> RACHEL: Good morning everybody and welcome to today's special webcast. This webcast is going to deal with this week's Supreme Court decision about Tennessee v. Lane. My name is Rachel Kosoy. I'm with the Disability Law Resource Project, your sponsor for today's event. I will be merely moderating the webcast today. I will be voicing some of your E-mail questions to the presenter, and also pausing to listen to questions that will be coming in by people who are on the phone with us. So just before we get started, a few technical things. We have some people who are joining us by telephone, and some who are joining us through the Internet. We will make an effort to take questions from both groups. And what we will do today is we will have a presentation and then when we're ready to take questions, the operator will come on the line and she will let everybody know which buttons to push so that you can line up to ask a question. If you're tuning in through the Internet, in order to send us a question, you can click the submit question button, which is at the bottom of your RealOne Player screen or you can simply address a question to us at webcast@ilru.org. That's webcast@ilru.org. If anybody has technical difficulties today, please give us a call. You can reach us at (713)520-0232, and if you hit 0, somebody will be there to help you. Okay, today's topic, as I said, is this week's Supreme Court decision, Tennessee v. Lane. We will hear background on the case, a discussion of the decision itself as well as the implications. And to present today we are very lucky to have with us Edward Correia. He goes by Eddie, so from here on out he will be Eddie. Eddie served in the Clinton administration as special counsel to the president for civil rights in the White House. In that position, he was a senior legal advisor to the president and other White House officials regarding civil rights law and various constitutional issues. He helped coordinate the administration's civil rights efforts at the Justice Department, the Department of Education, and other federal agencies. Prior to his position with the White House, among his many jobs, he was a professor of law at northwestern -- I'm sorry -- Northeastern University School of Law in Boston, Massachusetts, where he taught constitutional law, antitrust and administrative law. He also served on the council of NCD, and he continues to work with them, and you can see on their website today that he wrote a policy paper about the case he will be discussing with us today. There definitely is more to learn about Eddie, and I encourage you all to visit the website and read his complete by oh. But at this point I'd like to go ahead and turn it over to you, Eddie. >> EDWARD: Thank you, Rachel and I appreciate you inviting me here this morning. Tennessee v. Lane is a very important case. I think on the whole it was a victory for the disability community. It does leave a lot of questions unanswered, and those will have to be addressed in future cases. But let me start out by briefly summarizing the facts. There were a number of plaintiffs, but the two most important of the ones discussed in the opinion are George Lane and Beverly Jones. George Lane was a criminal defendant in a reckless driving case who had to go -- he is a wheelchair bound person. He appeared at the courthouse, didn't have an elevator. The first time he came he actually crawled up two flights of stairs and later when he came back he refused to do that and was ordered arraigned and was eventually jailed and clearly he had a very clear complaint that he had been prevented from participating in the proceedings of this case. Beverly Jones was a court reporter and was excluded from many courthouses in Tennessee because they didn't have elevators. She also had to use a wheelchair. So the important point there is that you have both a criminal defendant and an employee who are denied access to courthouses in Tennessee because of their disability. Now, the narrow question before the court was whether these plaintiffs could seek damages against the state of Tennessee. In order to get damages against a state, the Supreme Court has said that Congress must have the power to abrogate, that's kind of a fancy word that means override or nullify, the sovereign immunity of the states. I'm going to talk about this question of sovereign immunity, which has really been at the center of a controversy at the Supreme Court. The plaintiffs filed their suit under Title II of the Americans with Disabilities Act. You may know that the ADA has a number of titles. Title I deals with employment, and Title II deals with discrimination by government programs and facilities. And the court had already dealt with Title I in an earlier case, stow people were worried that the result in that case which was to say that there was no abrogation would be the same result in this case. So because there was a different result in this case, it really gives some cause for optimism about what the Supreme Court will do with Title II. Now, let me turn back to this question of abrogation. How does the Congress have the power to make the states do anything? Well, Congress has a number of affirmative powers. You probably learned this in law school or learned it in college or elsewhere. There are several clauses in the constitution that give Congress power to act. One is the commerce clause. Another is the spending clause, and another and the one that was at issue in Tennessee v. Lane is what's called the enforcement clause. It's actually section 5 of the Fourteenth Amendment. Now, alongside these affirmative powers Congress has, there are also limitations on congressional power in the constitution. We all know, for example, that Congress can't violate the equal protection clause. It can't do something that discriminates based on race. Another limitation on congressional power is the Eleventh Amendment. If you look at the Eleventh Amendment, you wouldn't think it meant too much. It just says by its own terms that the federal courts don't have jurisdiction to hear cases between citizens of two different states. So you would think, gee, all that means is that if a citizen in New York sues a citizen in Massachusetts, they can't do it in federal court. However, many years ago, the Supreme Court interpreted the Eleventh Amendment to extend well beyond the text to refer to or at least incorporate in some way this broader notion of sovereign immunity of the states. Now, sovereign immunity is a notion that goes all the way back to European notions of Monarchy that the king cannot be sued. The modern day version of this is a state cannot be sued unless for some reason the constitution gives the Congress some special power to do that. Now, earlier in the century, the Supreme Court had said that Congress could use the commerce clause, which gives Congress the power to regulate the states. They could use that to override the state's sovereign immunity. But beginning in the 1990's, there were a series of Supreme Court decisions that greatly limited congressional power to override states' immunity. One of those cases said that Congress could not use the commerce clause at all. Now, each of these cases was very hotly debated in court and narrowly decided, almost all of them I think are 5-4 decisions, and you'll see throughout that there is -- this is a good example of the significance of a president's choice for who goes on the Supreme Court, but once the Supreme Court said the commerce clause cannot be used, that left the spending clause and section 5 or the enforcement clause. The enforcement clause of the Fourteenth Amendment says -- this is not a quote, but this is the idea -- that Congress has the power to enforce the provisions of the Fourteenth Amendment. Now, what are those? Well, the primary provisions of the Fourteenth Amendment are the equal protection clause and the due process clause. The equal protection clause, of course, is the guarantee against discrimination, certain types of discrimination. The due process clause is a very broad notion that actually sounds like it just has to do with process and procedure; but in fact it is the basis of many of our liberties protected by the constitution. So as we'll see when we turn to the decision in Tennessee v. Lane, the claim in Tennessee v. Lane was that section 5 gave Congress the power to enforce the guarantees of the due process clause, and one of the guarantees of the due process clause is access to a courthouse. So I'll turn to that in a moment, but I want to mention it now because that's why the due process clause is involved in this case. Now, let me go back to this series of decisions in the 1990's where the Supreme Court steadily limited the power of Congress to regulate the states. First, as I say, it decided that the commerce clause couldn't be used at all. Then it decided that when using the enforcement clause, that it must be closely tied to a constitutional violation. Now, think what it means to enforce the constitutional guarantee of the equal protection clause. Does that mean literally that the only thing Congress can do is to say that the states can't violate the constitution in the way the Supreme Court has interpreted? And if they say violate the equal protection clause, then someone can sue for damages. Well, that would be a somewhat narrow idea because it would mean that the only thing Congress has the power to do is out law what has already been recognized as a constitutional violation. So early on back in the 1980's, the Supreme Court said that Congress can go somewhat beyond the literal guarantees of the constitution into enforcing. It can do things, for example, to prevent a constitutional violation. Well, that notion of how far Congress could go beyond the constitution -- as it turns out, has been a very important debate on the Supreme Court. When the court addressed that in the 1990's, they began to chip away at that notion. The first thing the Supreme Court said was that whatever Congress prohibits must be very closely tied to a recognized constitutional violation. Then it even went further, for example, in the Kimmell case that dealt with AIDS discrimination to say that Congress had the power to abrogate sovereign immunity of the states using the enforcement clause only if there had been a record of constitutional violations by the state. Now, that's kind of a strange idea because what that means is the Supreme Court is going to look closely at the evidence that was before Congress when Congress passed the law. And the court is claiming for itself the power to say, well, you thought there was enough evidence to regulate the states, we don't think there was enough evidence to do that. So, in other words, the Supreme Court is actually second-guessing Congress' consideration of evidence. A lot of people think that's not the role of the Supreme Court, but in any event, that's what a narrow majority of the Supreme Court decided, for example, in the Kimmell case. Now, that set the stage for Garrett, which dealt with Title I of the ADA. And since that's the immediate precursor of Tennessee v. Lane, it's worth spending a little bit of time on Garrett. Fair pair Garrett dealt with employment discrimination against a couple of disabled employees where the employers had refused to provide a reasonable accommodation. The employees then sued the employers saying that they were entitled to relief under Title I of the ADA which prohibits discrimination based on disability and requires employers to provide a reasonable accommodation if that's what's necessary to allow someone to do the job, and they are qualified to do the job once they have that accommodation. The Supreme Court said that Congress does not have the power to require states to pay damages if -- if there is a suit under Title I. Now, why would that be? Again, closely divided court said this. First, the court said that there wasn't a record of constitutional violations of the state in this area. Now, that was on a hotly disputed notion. There was lots of evidence against discrimination against disabled employees. The majority of court said, well, most of that doesn't really involve employment. Most of that doesn't involve state governments, and some of it might involve local governments, but the majority of the court said that there is just not enough evidence that the states had discriminated in the employment area. Secondly, what Congress is requiring the states to do, which is to provide a reasonable accommodation, is not closely tied to a constitutional violation. It's not unconstitutional to refuse to provide a reasonable accommodation to someone. It might be unconstitutional to blatantly discriminate in an irrational way based on disability, but that violates the constitution if you're a state government, but not to refuse to provide a reasonable accommodation. So the court said a narrow majority in Garrett that Congress did not have the power in enacting Title I to abrogate, that is to say, override states' sovereign immunity. Now, let's pause for a second to figure out what that means. The narrow proposition about what it means is that employees who sue cannot get damages from the states for violating Title I. It doesn't necessarily mean that the state doesn't have to comply with other provisions, for example, that it doesn't -- that an employee couldn't get injunctive relief. Injunctive relief means an order for the state to do something that doesn't require it to pay damages. Now, why is it that you might not get damages but still be able to get what the courts call injunctive relief? Well, this is a little bit abstract, but it's important because this is one of the lingering questions after Tennessee v. Lane. Early in the 20th century, the Supreme Court said that a plaintiff can get an order against a state official to do something. It's not running against the state government itself, but it's running against the state official. So, for example, someone can sue the head of an agency on a constitutional violation theory, and a court can order the head of the state agency to comply with the constitution or pay damages, even though the person may not be able to sue the state. Now, this distinction has puzzled people for decades and lawyers and law students, too. It's a bit of a fiction, but it's extremely important fiction because it means that people can get an order against a state even if there is no abrogation of sovereign immunity. Now, how does that come up in the ADA? Well, it means that someone can -- even though they can't get damages from the state, they can get an injunction against the state official which as a practical matter the same as an injunction against the state. Now, here comes the kicker in all of this. In order to get an injunction under the this theory, the original case is called ex parte Young. Congress still must have the power coming from somewhere and it's coming from the commerce clause. If those activities affect commerce, then one can get an order against a state official; but what if the activities don't affect Interstate Commerce Commission? Then even this idea of ex parte Young doesn't apply either. Now, the reason I'm taking the time to go through all that is that one of the things the Supreme Court has done is narrow the idea of what activities affect Interstate Commerce Commission. And so if we find ourselves in a situation where we can't use the enforcement clause of the Fourteenth Amendment, and we can't use another congressional power and we're stuck with this idea of suing under an ex parte Young theory based on the commerce clause, we might not even have that ability if the Supreme Court says that something doesn't affect Interstate Commerce Commission. All right, now, let's return to Garrett because that's the predecessor of Tennessee v. Lane. One of the things that was obvious in the Garrett case is that the Supreme Court is going to treat this whole idea of a record of constitutional violations differently if the persons affected are disabled persons compared to the treatment if the discrimination is based on race and gender. In fact, the Supreme Court has tended to uphold the use of the enforcement clause in cases of race discrimination and gender discrimination. Now, why would that be? That's because race has historically triggered what the Supreme Court calls heightened scrutiny. In other words, if there is a race classification in the law, races are treated differently, or if there is a gender classification in the law, women are treated differently than men, the Supreme Court said that's probably going to be unconstitutional unless there is a very, very strong justification for it. Since there is usually not a strong justification, those classifications are unconstitutional. Now, what that means is it's easier to show a record of constitutional violations based on race and gender than it is to show a record of constitutional violations in the area of disability. Now, a lot of people don't like the idea that there is so-called heightened scrutiny or a more demanding standard for race and gender classifications than for discrimination based on disability. That was decided in the 1980's in a case called city of clay burg where again the court has divided. Justice Marshall wrote a strong dissent and said I don't like this idea that we're not going to apply some kind of heightened scrutiny to disability. But nevertheless that's where the law is today. And that's clearly had an effect in Garrett and many predicted that would drive the result in Tennessee v. Lane, too, but as it turned out -- and I'll explain why in a minute -- the court nevertheless upheld the damage claim in Tennessee v. Lane. Now, recall that the plaintiffs in Tennessee v. Lane sued on the basis of Title II. Title II is a very broad part of the ADA. It bans discrimination in all kinds of government programs and for government facilities. It is very different than Title I in some ways, and these going into the case it was clear, I thought, that there was a better chance of the court upholding the claim in Tennessee v. Lane because of these differences. What are the differences? Well, as I say, it's much broader. It includes all kinds of activities by the government, not just employment, borrowing someone from an educational facility. Barring someone from entering a courthouse, but not just physical access, preventing someone from voting, but not just those kinds of barriers. Treating someone in a cruel and unusual way. Anything that's actually guaranteed to go back to the due process clause, a very broad notion of protection for individuals. So it is harder for the court to say that, well, gee, we're going to look at that entire range of protections and judge whether one can abrogate -- that Congress has the power to abrogate the sovereign immunity across that whole broad spectrum of prohibitions and in fact the Supreme Court said we're going to have to look at this only in specific areas. Another difference with Title II is that it is -- it's judged by what the called -- it protects activities that trigger this idea of heightened scrutiny. Remember I said that race and gender classifications trigger a more demanding review by the Supreme Court; but so do restrictions on voting and restrictions on other personal liberties. They have also triggered heightened review. So there was an argument in Tennessee v. Lane that the protections of Title II are in some ways like protections of race and gender. That it's easier to show a pattern of constitutional violations because the constitutional standard is higher there. So let's turn to the Stevens opinion. Now, what the Supreme Court said -- had said in Garrett and some of these earlier abrogation cases was that in order to decide whether Congress has the power to abrogate sovereign immunity, you have to start out in asking -- and ask, well, what is the constitutional right at issue? Now, that's an interesting question because what do you think the constitutional right at issue is in Tennessee v. Lane? Is it, for example, that you have a right to due process? That would be a broad notion because that would include all the things I mentioned, voting and privacy and freedom from cruel and unusual punishment, freedom from unreasonable searches, not just access to the courthouse. So that's a very Broadway of stating it. How about saying that you have a right of access to government facilities? Well, if you state it that way, then that includes not only courthouses where you might say you've got a particular need to be from to participate in some kind of a courtroom proceeding, but access to the social security office and so forth. Well, what about access to the courts? Well, you might say that is a good way of stating a right because you people have to go to courthouse. On the other hand, remember in Tennessee v. Lane you had both a criminal defendant who really has a strong argument they should be able to come to their own hearing, and you have an employee. Now, you might say, well, an employee -- that's not quite the same thing because that's just a place to work. There are a lot of other places to work and so on. So a lot in this case turned on the way Stevens formulated the right. He formulated it to say that there is a right of access to judicial system or to the courts. Now, it's interesting, the court had actually never said that. It never said there is a right under the due process clause or no they are clause to have an access to the courts. It had come up in very specific ways, for example, that a criminal defendant had a right to participate in his own hearing. That, for example, a poor person cannot be prevented from getting a divorce because they don't have the money to pay a filing fee, that a poor person has to get some help certainly getting a lawyer or an access to trial transcripts in order to participate in a criminal proceeding, but none of those cases actually said in a very clear way there is an access to the judicial system or an access to the courts. So this is actually the first time that's ever been said. Now, Stevens said that's the way we're going to formulate the right. Now, that's narrower than some of the possible ways it could have been formulated that I mentioned earlier; but it's also broader than saying that the right at issue is access to the courts for someone who is a criminal defendant. A lot of people were worried that, well, even if George Lane won this case because he was the criminal defendant, Beverly Jones wasn't going to win this case because she is just an employee. But Stevens said, no, it's just access to the courts. Then assuming that's the right at issue, Stevens said, look, there is along history of discrimination by the states. Now, he didn't really spend all the time on access to the courthouse, but he talked about other types of discrimination by the state, including access to the courthouse. So Stevens said we have a record of constitutional violations here, and the remedy which is that a state has to provide an accommodation, it doesn't actually say that states have to provide elevators, they just have to provide access in some ways. So for example, they could have a special room set aside when a disabled person had to come and so forth. They don't necessarily have to spend money to build an elevator in every courthouse. So based on the fact that the remedy is narrow, there is an adequate record of constitutional violations, we're going to say that Congress had the power in this case to abrogate the states' sovereign immunity. George Lane and Beverly Jones are entitled to damages. Now, this is a 5-4 decision. The dissenters -- some of them, Scalia said he's going to give up on this whole idea of using section 5 of the enforcement clause to do anything other than bar strict constitutional violations. That's a pretty narrow position. That's -- there is absolutely no precedent for that in any case. It's just he decided that's what he's going to do from now on. Renhquist took a somewhat different position, but says that Congress doesn't have the power to abrogate sovereign immunity. Again, it's good demonstration of the importance of who the president decides to put on the Supreme Court. Now, the good news is that these folks won this case. The not so good news is this case only deals with access to the courts. It doesn't deal with all the other ways that Title II can come up. It doesn't deal with voting or education. It doesn't even deal with access to other types of facilities. So this case doesn't stand for the proposition that someone can get damages if the state doesn't provide access to the social security office or the welfare office or the employment office. That's going to have to be addressed in cases down the road. On the other hand, it does show that this court -- at least five members of this court are willing to conclude that there has been a sufficient record of constitutional violations that Congress does have the power to abrogate sovereign immunity in some areas where the due process clause is used. Now, to go back to that question I mentioned that's lurking in the background, what about the idea of injunctive relief? Let's say in the next case, the plaintiffs want to sue for damages for access to a college building, a university classroom. And the Supreme Court says in that case, well, I know we said in Tennessee v. Lane there is a constitutional right of access to judicial facilities or the courtroom, however, it's not quite that compelling when we get down to an educational classroom. So we're going to say that you can't get damages in that case. No abrogation of sovereign immunity. Well, how about an injunction at least? Can you get an injunction against the state that they better provide access to the classroom using that ex parte Young theory I mentioned earlier? Well, maybe, but it depends on whether that classroom and access to the classroom somehow affects Interstate Commerce Commission. Now, one could spit out a theory how it affects Interstate Commerce Commission, and under older, broader readings of the commerce clause one could arrive at that conclusion; but on the other hand, we can assume there will be those who argue that access to an educational classroom doesn't affect commerce, and therefore, Congress doesn't have the power to order any access because you can't get a remedy if the state doesn't provide access. Well, I don't want to be too pessimistic about it, but that issue is left for another day, and it is something that future Supreme Courts will have to address. All right, well, that concludes my fairly lengthy discussion. I hope it wasn't too confusing. And now I'll be happy to answer any questions. >> RACHEL: Great. Thank you, Eddie. You actually covered a lot of ground. Sheila, if you'd like to instruct people how to line up now, that would be great. >> OPERATOR: At this time we will open the floor for questions. If you would like to ask a question, please press the star key followed by the 1 key on your touch tone phone now. Questions will be taken in the order in which they are received. If at any time you would like to remove yourself from the questioning queue, press star 2. Again, to ask a question, press star 1. Our first question comes from Susan of the Department of Labor. >> CALLER: Hi, in the introduction they had mentioned that the speaker had written a paper on the Tennessee v. Lane decision and other things and I was wondering where we could find that? >> EDWARD: Well, the paper was written prior to Tennessee v. Lane. So you can, I think, get a summary of the issues leading up to the Tennessee v. Lane. It is on the National Council on Disabilities website, which I believe is just ncd.gov. >> RACHEL: And we will go ahead and put a link to that on the web page for today's webcast. Okay, the next question. >> OPERATOR: Our next question comes from Charles Hodge of the U.S. Department of Labor. >> CALLER: Good morning, Mr. Correia. I think you've given a very good explanation. I'm concerned, though, whether it's possible in your mind that just as employment discrimination claims can be theoretically raised under Section 504 of the Rehab Act, and even though title 6 has an exclusion for employment discrimination claims, there is a line of cases going back to Singleton vs. Jackson Unified School District in the Fifth Circuit that has said that the employment of racial minorities is so important as a mentoring for minority beneficiaries and participants in programs that receive federal financial assistance that claims of employing black teachers could still be raised on under title 6 as an integral part of a title 6 claim. Could we argue that under Title II, employment discrimination, and Beverly Jones' claim did relate to employment, could be raised and money damages could be sought as sort of an ancillary or integral part of a Title II claim under the ADA against a state agency or state employer? >> EDWARD: Well, I'm glad you mentioned 504 because I want to turn back to that in a moment. I think if an employment case comes up again, and someone says that there are some guarantees that the due process clause provides as to employment, then I think the court would probably listen to that, but if the claim is that it's really based on the equal protection clause and discrimination as we normally think of it, I think the lower court certainly will say that Garrett precludes that. That the significance of Garrett is that Title I really is based on -- would be based, if it could be based, it would be based on the guarantees of the equal protection clause. Garrett -- Congress didn't have enough to do that, to abrogate sovereign immunity for employment claims. Beverly Jones -- it's true that it's an employment claim in some sense, but it is subsumed under this concept of access to the courts which is really more of a due process claim. So I believe the lower courts will read this to say you've got to bring your claim base order a due process clause guarantee rather than an equal protection clause guarantee. Now, there was one thing that was odd about -- not necessarily odd, but it was one of the unstated corollaries of the Garrett decision. Everyone certainly on the United States Supreme Court would agree that pure irrational discrimination violates the constitution. It's not like a reasonable accommodation. It's obviously -- it's just irrational. So if you say, for example, I'm going to refuse to hire someone because I think they are disabled. They look like they're kind of disabled to me and somebody told me they were disabled. But I'm not going to check their record or have any review or anything like that, that's just irrational. Now, that violates the equal protection clause and the due process clause. The due process clause protects us from irrational behavior by the states. Or cases based on racial animus -- or in this case animus based on disability, someone just hates disabled people and decides not to hire them, some state official, one could maybe make out a Title II claim based on that, but I don't think we can go back and bring in through the back door the whole class of employment discrimination claims that were at issue -- that are really Title I has decided to address. >> RACHEL: Thanks, Eddie. I would like to jump in at this point and ask an E-mail question that came in and it relates to something you mentioned that you were going to come back to Section 504. >> EDWARD: Right. >> RACHEL: And the question is does Tennessee v. Lane affect remedies for Section 504 in any way? >> EDWARD: No, it does not. And I'm sorry, I haven't mentioned 504. 504 is a very important federal statute that basically provides the same guarantees as the ADA. If a state entity receives federal funds. Now, there are two problems with the 504 analysis. One is that not all state entities receive federal funds. So you might have some small state agencies out there that just never got a federal grant. So they wouldn't even be covered by this 504 protection in the first place. But secondly, there is a lot of litigation in the lower courts on whether the spending clause is used -- if Congress does have the power under the spending clause to require states to comply with a whole range of requirements that are embodied in the ADA. That's another kind of category of this debate over federalism. The Supreme Court has said that the notion of the spending clause is this: It's kind of like a contractual notion. That if the state wants to receive federal funds, it's got to agree to do certain things. And if it agrees, then fine. But if it doesn't take the funds because it doesn't agree, fine, there is nothing Congress can do about it. But on the other hand, to reach that notion, the Supreme Court said Congress has to speak very, very clearly. In other words, it has to be very clear in the statute what the state is getting itself into when it receives federal funds. Secondly, some -- Justice O'Connor once suggested that there is a limit to this notion. You can't say to a state in return for receiving highway funds, you've got to promise to do certain things in the education area. That would be going beyond the scope of the spending clause. So there were some of these issues percolating in the lower courts and the Supreme Court will have to some day face this issue and tell us whether 504 literally means what it says, and Congress has the power to require the states who receive federal funds to comply with all these requirements. If the Supreme Court does do that, then 504 remains a very important tool, the only problem will be those cases where certain state entities don't receive federal funds. >> RACHEL: Okay, thank you. Let's go ahead and take a question from the next caller. >> OPERATOR: Our next question comes from Lauren Simmons of the Oregon disabilities commission. >> CALLER: I really appreciated your analysis on this recent decision, however, I also was wanting to find out if you knew where one could get an analysis of the Sutton vs. United Airlines decision? >> EDWARD: I think there is an analysis of Sutton on that NCD website, too. I'm pretty sure that that -- someone did a paper on Sutton. Sutton as everyone may recall had to do with whether an employer could require -- that the court had to take into account mitigating measures in deciding whether someone was disabled. Sutton dealt with a woman who wore eyeglasses, right, who were trying to be pilots? I think that's the Sutton case. And the court created this crazy catch 22 situation that I think United Airlines said that you've got to have adequate vision without the use of glasses. So the plaintiff in that case said, hey, I do have adequate vision if you'll let me use glasses. So that's discrimination. I'm qualified to do the job if I can use glasses, but the Supreme Court said, well, no, they are really not disabled because once they put glasses on, hey, what's the problem? There is no disability. So that is kind of a crazy catch 22 that Congress should get around to addressing; but as to the question about where there is analysis, I believe you'll find one on the NCD website. >> RACHEL: We'll go ahead an check that so that people will know by the end of this call. We'll take the next question. >> OPERATOR: Again, if you would like to ask a question, please press the star key followed by the 1 key on your touch tone phone now. Questions will be taken in the order in which they are received. If at any time you would like to remove yourself from the questioning queue, press star 2. Again, to ask a question, press star 1. >> RACHEL: Okay, while we're waiting for people to line up, I have another question that came in by E-mail. And this one asks if you could please elaborate more on the new use of the commerce clause to attack Title II, presuming the Fourteenth Amendment enforcement was invalid, and does Tennessee v. Lane change anything? >> EDWARD: Well, I don't think Tennessee v. Lane really tells us much about this -- this broader in some sense underlying more significant problem of using the commerce clause. Let's think through what would happen if this case had come out the other way. If the Supreme Court, instead of in 5-4 one way it had been 5-4 the other way, if the Supreme Court said that there is no -- Congress did not have the power under section 5 of the Fourteenth Amendment to abrogate the states' sovereign immunity with regard to access to courthouses. So you can't get damages. Now, in the next case, someone didn't seek damages but they sought an injunction against the state of Tennessee or an official of the state of Tennessee requiring them to provide access. Now, the court would say, well, remember what we said in Tennessee v. Lane, we said that Congress didn't have the power to abrogate sovereign immunity. So you can't bring a case against a state itself. And the plaintiff would say, well, what about ex parte Young, that notion, can I ask for an injunction? Based on the grounds that I'm suing not the state itself but I'm suing the state official who runs the courthouses, and I want an I junction against him or her saying you've got to make all these courthouses accessible? And the defendants would say, well, you may have the power under that ex parte Young theory if our activities affect Interstate Commerce Commission, but they don't affect Interstate Commerce Commission. That would then drive us back to a line of cases that that's been decided in the last 15 years or so on the breath of the commerce clause. I hope this doesn't go -- this is not a lot more than you asked for, but there was a time early in the 20th century where the court took an extremely narrow view of the commerce clause. During the new deal, the Supreme Court completely flipped on many issues, including going from a narrow reading of the commerce clause to going to a very broad reading of the commerce clause. So, for example, by the time the civil rights act of 1964 was challenged, based on the grounds that Congress doesn't have the power under the commerce clause to regulate in this case private employers, private restaurants, the Supreme Court said, oh, yes, Congress does have the power to regulate a little dinky BBQ restaurant in the middle of the state of Georgia or wherever based on the commerce clause because it affects the flow of food in and out of the state. It affects the ability of people to travel from state to state to stay in a hotel and so forth. Now, once you go down that road, you're talking about a very, very broad notion of Interstate Commerce Commission. But in the 1990's the Supreme Court decided that Congress could not bar guns from school grounds because that flow of guns into a school ground didn't affect Interstate Commerce Commission. Now, that was the Lopez decision. Now, again, another deeply divided court there, but that narrow reading of Interstate Commerce Commission, if one applies that to something like access to a courthouse, I'm not sure what the court would say. You could make the same argument that was made about traveling from state to state to stay at motels or eat at restaurants because it has at least some effect on that; but those cases were commercial cases where something was being bought and sold. Access to a courthouse doesn't apply to -- doesn't really raise the issue of things being bought and sold. So I think that's one of these questions that we're just not going to know the answer to until the court has to squarely face it and I'm afraid that the current court -- I'm just not quite sure how they would come out. It would either be 5-4 one way or the other way. A lot of these cases depend on Justice O'Connor. I don't know what she would say about that. It would be quite a shocking result because it would mean that Congress no -- if the section 5 of the Fourteenth Amendment doesn't apply, then there is just -- Congress doesn't have power under the commerce clause. Now, before you get too worried, let's go back to Section 504. You would say, well, if we don't have power under did commerce clause or Congress doesn't have the power under the section 5 of the Fourteenth Amendment, it at least has power under the spending clause. And so in 504, a state courthouse or the agency that runs the courthouse receives federal funds, there is a requirement if you receive federal funds to provide access, assuming the Supreme Court upheld the application of 504 under the spending clause, then at least you'd have that basis for providing access. So I'm not too worried about it yet; but it gives you an idea of the questions that are out there for future -- future cases. >> RACHEL: Okay, the person who asked that question is a very happy camper now. You gave a really good thorough answer. It's a lot of helpful information. Before I go on with E-mail questions is there anybody lined up on the phone? >> OPERATOR: Our next question comes from Joseph of the (Inaudible) center for independent living. >> CALLER: Good morning. With this narrow definition of the courthouse, I'm wondering if there is -- this has any implications on services that states provide, for example, Medicaid services? Could one say that if a state decides to cut services specific to people with disabilities, then that in fact is discrimination that could be complained of under Title II or is that another situation where instead of using Title II you'd file a complaint against the head of the division of medical assistance? >> EDWARD: Well, you would certainly file a complaint against Title II under any of these situations. I mean, you would include that in your complaint because the Supreme Court hasn't struck down the use of Title II in those cases, it just hasn't dealt with it yet. But you'd make a claim under Title II and a claim under Section 504 and what other legal theory you had, but I do have some worries that when we're talking about the pure provision of services, as opposed to access to something like voting or the courthouse, that the court is going to treat that in a different way and part of the reason I say that is that if you look at the history of Supreme Court decisions that have dealt with provision of services, for example, let's say you make a constitutional claim that the equal protection clause means that states should spend the same amount for education for poor people as they spend for education for people -- for wealthier people in wealthier districts. Well, the Supreme Court has dealt with that decision -- that question and said no. The guarantees of the equal protection clause are really a limitation on what the state can -- can do as far as restricting your liberty, and treating people differently based on race, but they are not a guarantee of general equal access to services. If it is a matter of providing different services for -- well, let me make one other point. Disability analysis is somewhat complicated by the fact that the state would say, what do you mean? We're not discriminating? We're providing exactly the same services for a person in a wheelchair and a person who is not in a wheelchair? You see those steps? They are the same no matter who you are. Well, that's true in a very technical sense, but the effect of it is discriminatory. So a claim based on discrimination based on disability and services, if for some reason the state said if you're disabled you only get $300 a month on welfare and if you're not disabled you get $500 a month welfare, that -- that is irrational discrimination. That's just crazy and no basis for that whatsoever. You might say that reflects an animus or hostility towards an individual. As I said earlier, you could make a claim that the due process clause protects against that. But if the question is the state provides services and they provide exactly the same services for someone who is disabled and not disabled, and they don't provide any necessary additional services that someone who is disabled would need, then I think you get back to this question about is that unconstitutional discrimination? And so I would make the Title II claim, I'm afraid that that might lead to a different result when you're abrogating sovereign immunity. But again, now, we've still got the 504 remedy, which is much broader, much more comprehensive as long as the Supreme Court or the lower courts uphold that, you could bring your case under 504 and probably prevail. >> RACHEL: Okay. I'd like to go ahead and ask a question that came in by E-mail. First, to give you -- somebody sent in a point of clarification. Saying that Beverly Jones is actually an independent contractor, not an employee of the state or court. >> EDWARD: That's a good point. I think that the general point about employment is still right, but I think you're right to point out that she was not truly an employee of the state. She's an independent contractor. If she had been an employee of the courthouse, then -- actually in some ways this might have worked out well because that might have looked awfully much like a Title I case if she had been an employee of the courthouse a. Because she was an independent contractor, it was more -- looked more like a Title II case. That's a good point. >> RACHEL: Okay. And then this question is do you really think that setting aside a, quote, special room for people with disabilities constitutes equal access to court proceedings? Shouldn't people with disabilities be able to attend court, if there is something special about the courtroom setting that really can't be replicated? >> EDWARD: Well, I certainly think that the idea of a special room does have serious limitations. For example, if the room is so small that you can't invite the public in, that you don't have the normal court services available and so on, it would clearly not be adequate substitute. I was just actually calling attention to the point that Justice Stevens made in arguing why the remedy under Title II was narrow or as the courts said congruent and proportional. It talked about the burdens on the states and how it could satisfy the burden, but my own personal view is certainly that wherever possible disabled individuals ought to be in exactly the same courtroom as everybody else. >> RACHEL: Okay. Is there anybody else lined up on the phone right now? >> OPERATOR: Yes, we have a question from Michelle of the city of new haven. >> CALLER: Yes, I was wondering if you thought this case would impact people with disabilities ability to demand that a jury have people with disabilities on it? >> EDWARD: I do. I do. I certainly think that it could be used that way. Now, the way I think that would come up is -- is similar to the way it comes up for race and gender. You know, people don't necessarily -- don't really demand that there be a black person on a jury if they are black or a woman on the jury if they are a woman or even if they are a man, but what you object to is discrimination that's preventing those people from being on a jury. And if the prosecutor is using peremptory challenges every time a black person is in the jury pool, then the Supreme Court would say that's a violation of the equal protection clause. If, for some reason -- and I can imagine this happening -- where a defendant, let's say, in a case -- defense counsel wanted to keep a disabled person off a jury, then absolutely you could use this Title II notion to say that that's -- that's a violation of Title II. I think what you do is you'd make your constitutional claim because that's a violation of the constitution as well. And, you know, I'm not sure you would bring a claim for damages under Title II or would feel like that's necessary to do that. However, that notion doesn't go as far as to say I see the jury pool, everybody is out there in the jury pool and nobody is disabled. So I want to have someone in the jury pool that's disabled. You couldn't really do that. However, let's say the way the jury pool is developed is that disabled people are -- as a practical matter -- are kept off of juries. Let's say there is a rule in the state that says no blind person can serve on a jury. We actually have a Title II case that is like that. So you could certainly use Title II to say that those kinds of rules that keep systematically keep disabled people off the jury violate Title II. >> RACHEL: Okay, is there anybody else on the phone before I ask E-mail questions? >> OPERATOR: No, ma'am, not at this time. >> RACHEL: Okay. Let me ask a couple of the E-mail questions. This one is if the wrong address by the ADA is a clear constitutional violation, but doesn't have the necessary history for Congress to legislate against it, couldn't a plaintiff sue the state for a direct constitutional violation and does a state have sovereign immunity against this? >> EDWARD: I think I missed the first part of that. If the wrong address -- >> RACHEL: if the wrong address by the ADA is a clear constitutional violation, but it doesn't have the necessary history -- >> EDWARD: I think -- please send in a clarification if I didn't understand this correctly; but yes, someone can always sue the state directly for a constitutional violation. So you don't really need to rely on the ADA in that case. If the state has violated your constitutional rights, you can sue them and you might be able to get damages. There is kind of a different set of doctrines about when you can get damages, but the problem is that some things are not obviously a constitutional violation, particularly in the area of disability. I would say that we probably would be hard pressed to find any case that's held that -- that the refusal to provide access, a curb cut or a ramp or interpreters -- sign interpreters or anything, visual aids, any of that is a constitutional violation. I'm not completely sure about that, but I would guess that we just couldn't find a case that said those kinds -- as a practical matter is discrimination -- actually violates the constitution. That's why it's important to have something like Title II which actually does reach the practical effects of states' refusal to do that and really gets at the question of access. >> RACHEL: Okay. Switching gears a little bit. This question is -- references Justice O'Connor and the writer says that she's been in the conservative member of the majority. In Lane she created a new five member majority by adding her vote to a different group. So the question is has she overtly given any indication of her thinking? Has she given any speeches or written articles on the topic? And if so, what is the key for her? >> EDWARD: I don't recall I have ever seen anything -- she doesn't really write articles, but she does speak. I can't recall that she said anything about this particular question. It is correct that she was on the other side in Garrett. If I had to guess, it would be the following: Remember I was saying that in race and gender cases there is heightened scrutiny. In other words, in order to pass muster under the equal protection clause, a race classification has to meet what's called a -- strict scrutiny. It has to be a compelling interest that the state is trying to achieve, the classification has to be narrowly tailored to accomplish that. It's very rare that a race classification can ever satisfy that test. Gender classifications, the court hasn't quite come along and said the same thing, but the idea is very similar. It's very hard to uphold a gender classification. Now, one of the problems in Garrett was that a disability classification doesn't trigger that kind of more scrutinizing kind of intense review. However, access to the courthouse or access to voting falls in the line or category of cases where the court has said the constitution guarantees some rights in that area. You have to be able to -- for example, be present at your trial if you're a criminal defendant. The press has a right to come in and watch a criminal proceeding, and in fact, you the defendant, have a right to -- for the press to be there. So you're getting into areas where the court has said there are special constitutional protections, and it triggers that kind of more searching review. My guess is O'Connor felt comfortable that because access to judicial services or judicial process triggered that kind of heightened review, that she would go along with this case. Go along with the decision here. Now, some of the -- some people have speculated that it took limiting the holding of this case to access to the courthouse in order for her -- to get her to go along and if it had just been up to Stevens and (Inaudible), they would have upheld access to any facility under Title II or upheld the constitutionality of all of Title II. That's inevitably somewhat speculative, but I think we can be somewhat confident that the heightened review which was triggered by a due process claim probably played a big role for her here. >> RACHEL: Okay. Are there any can callers lined up before I go ahead with E-mail questions? >> OPERATOR: Yes, our next question comes from jean of the department of health and human resources. >> CALLER: Hi, this is Valerie Morgan. I had a question. Could you do an analysis on how you think the courts would come down on a discrimination claim brought that the discrimination was brought on severity of disability. In other words, they were being treated differently in services based on severity of disability? >> EDWARD: Could you give me a little bit more information, in what sense is the discrimination? >> CALLER: Well, the claim of discrimination is that because of the severity of the disability not being really taken into consideration that their services are not adequate to meet their needs so that -- you know, let's say you've got someone moderately disabled. Well, this person with severe disabilities is receiving the same amount of services as the person with moderate disabilities. >> EDWARD: Right. Right. Well, I think leaving aside abrogation of sovereign immunity, let's say you're really not trying to get damages there, you're trying to get an injunction to order the state to do that. Let's take that case first. So we don't really have to wore by the Tennessee v. Lane problem of abrogating sovereign immunity. What we have to worry about is whether Title II requires that result in the first place. And I just don't -- I'm not familiar enough with all the Title II cases that have dealt with severity of disability to know whether there are Title II cases that say that. there may be, but my guess is that's the tougher nut to crack. This Title II and Section 504 -- do they require a state to provide more services for a more severely disabled person? I don't know the answer to that. Maybe somebody out there in the audience does, but that would be the fight because I suspect that what you would really be interested in there is not so much someone getting damages for past discrimination, maybe you would, you would be interested in what's the state going to do from now on? I want to get those expanded services. So I don't know the answer. >> RACHEL: Okay. Are there other callers lined up? >> OPERATOR: No ma'am, not at this time. >> RACHEL: Let me go ahead with a few more E-mail questions then. Can you talk about the types of challenges with Title II that states are bringing and what impact Lane might have on those? >> EDWARD: Right. I think we'll find that the next wave of cases are going to involve, you know, access to other types of facilities. Now, one of the things -- there are a couple of good -- some good news here. I didn't mention this, and it's not directly responsive but I think it's worth mentioning. None of this has to do with a requirement placed on the private sector, a public accommodation, although the term public is used is actually a privately owned restaurant or hotel and so forth. The constitutionality of that is not questioned because did commerce clause serves as a basis for doing that. You don't have to worry about sovereign immunity. So far, at least, we're not worried about injunctive relief against the states. And so I think -- and also we have to keep in mind that states are generally willing to comply. They're not so bad sometimes. You know, there is a lot of voluntary compliance out there, not just because they're going to get sued but because they want to comply. However, having said that, I think we'll find that there are going to be cases dealing with access to other facilities where someone does want damages so it really crystallizes the whole sovereign immunity case. There are going to be cases involving discrimination by a program, for example, the way this -- the Title II case that we thought the Supreme Court was going to address was a case called California -- I don't know if the style was California v Hanson -- that was over a year or so ago, that dealt with an applicant to be a medical doctor in California and the allegation was that the medical board in California had summarily refused to allow the person to be certified as a doctor in California because he had a history of a mental disability. And California actually decided not to take that case to the Supreme Court, but my guess is that there will be cases involving that kind of discrimination and Tennessee v. Lane -- well, that kind of discrimination and the plaintiff will want damages. If the plaintiff doesn't want damages, then you don't really face at least so far the whole question of abrogation of sovereign immunity. I suspect we'll see those cases and I think the states will say with regards to what the Supreme Court said in Tennessee v. Lane, you can't abrogate sovereign immunity for discrimination by a state program. And you can't get damages for failing to provide adequate access to other facilities that are not courthouses. We'll see those cases. >> RACHEL: Yeah, I agree with you. That's definitely where I think we're headed. I have just a couple more questions to try to squeeze in here. First of all, is anybody lined up on the phone? >> OPERATOR: No, ma'am, there are no questions at this time. >> RACHEL: Okay. All right, this question is I understand that Mr. Lane sued for $100,000 and Beverly Jones sued for 200,000 in compensatory damages. Doesn't Title II require a finding of intentional discrimination to recover damages? >> EDWARD: Yes, I think that's true. It's intentional discrimination, but you know, failing to provide access is intentional. So I don't think they'll have a problem so much with proving intent here, but I think the posture of this case is that now they'll go back -- I'm sure they'll settle the case I would think very quickly. But I don't think they actually reached the question of what their damages would be. >> RACHEL: Do you suggest any strategies for advocates who face barriers in accessing Title II services? >> EDWARD: Well, the first thing to do, I think, is depending on the kind of access issue there is, is to try to work with the state if it's a state government -- by the way, there is no abrogation issue with local governments. So you can get damages against local governments and Tennessee v. Lane is not going to prevent that. But if we're talking about state governments, the first thing to do is actually talk to the state officials and try to work something out and try to understand what the problem is and try to get some political support to make the change. Go to the legislature or whatever, it can be a much more effective, quicker resolution. If that doesn't work, then I think the case -- once the case is brought, obviously you should include Section 504, but the case should be styled and formulated as close to a due process claim as possible. Because the way I think this case is going to be read is that you cannot abrogate sovereign immunity based on the equal protection -- an equal protection clause theory. That's what was lost in the Garrett case for Title I. This case is a due process claim, so you have to bring it within that context. And the next case, if it's the welfare office, that's going to be harder than the voting booth. Any state action that discriminates and prevents people from voting I think will fall into this area of due process -- of activities protected by the due process clause that triggered heightened scrutiny. So if you're thing about the next case to litigate it would be a voting case. >> RACHEL: I think that might be a good place for us to wrap up. Are there some additional things that you want to -- thoughts you want to leave us with? >> EDWARD: I thought the questions were all very perceptive and very helpful and I appreciate your taking the time and giving me -- having the patience to listen to this rather abstract discussion. But I know a lot of you were disappointed by this decision because I talked to a number of people after the decision came down. I think it's actually -- under the circumstances, a good decision. A decision that offers some grounds for optimism, but you can just see what the future might hold. It depends so much on who these Supreme Court justices are. If the court swings towards the views of the dissent, you can forget about any further Title II cases that uphold the claim. If the court swings in the other direction, we'll see this Tennessee v. Lane notion broader and broader. So stay tuned. >> RACHEL: Okay. Thank you so much Eddie. I really appreciate it and I know we had a lot, a lot of people tuning in today. I've been getting E-mails letting me know -- updates on just how many people are out there listening. So we really appreciate that you were able to give us really such a thorough understanding. >> EDWARD: You're quite welcome. >> RACHEL: So for everybody out there, I just would like to remind you that today's presentation will be archived. So you will be able to check back to our website soon and you will be able to hear the discussion as well as read a transcript of it. So some people might want to go back and study up. I also would like to remind people that we have a number of webcasts that are coming up. So please do check our calendar and you will find a number of other interesting topics as well. And some final thank yous. I would like to acknowledge NIDRR who funds the Disability Law Resource Project, your host for today's program. And I also would like to throw in the -- to the man who asked about the analysis of Sutton, on the Disability Law Resource Project website there is a three-part analysis of the Sutton decision. We will go ahead and post links to that on the archive for today's webcast. And if anybody wants that right away, go ahead and send us an E-mail and we'll send you back the links. And lastly, to thank others who have made today possible: Here in our office almost everybody was involved to make this a success -- includes Marj Gordon, Sharon Finney, Dawn Heinsohn, Vinh Nguyen, Laurie Redd, Tajuana Dunning and please forgive me if I'm forgetting to mention anybody. And of course Rob Dickehuth and Marie Bryant our realtime captioner. So again, thank you everybody for joining us today. Thank you, Eddie, and we look forward to speaking with you all in future webcasts. Have a great day.