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Washington�A U.S. Supreme Court ruling last week making states potentially liable for damages for failing to make courthouses accessible to disabled people will trigger piecemeal litigation involving the disabled and higher education, social services and other public activities, as well as litigation over the full meaning of “access to the courts.” The ruling, Tennessee v. Lane, No. 02-1667, held that states had no 11 th Amendment immunity from suits charging that they have violated Title II of the Americans With Disabilities Act when they fail to provide access to the courts. Title II of the ADA bars discrimination against the disabled in public programs, services and activities. The 5-4 majority, led by Justice John Paul Stevens, rejected Tennessee’s argument that the court should decide whether Title II, as a whole, was an invalid exercise of congressional power under Section 5 of the 14 th Amendment. The majority, instead, took an “as applied” approach, limiting its ruling to the category of cases in the underlying suit before it-those involving access to the courts. For states and the disability rights community, the decision was a “mixed bag,” many of them said. Disability rights advocates won a rare victory in a court that generally has favored 11 th Amendment sovereign immunity and has restricted the scope of the ADA. States-and not all supported Tennessee-suffered a limited defeat. And both sides claimed language in the ruling that will bolster their arguments in the battles to come. “Clearly, it’s a narrow victory on a focused topic-access to the courts,” said Peter Blanck of the University of Iowa College of Law and author of the new hornbook, Disability Civil Rights Law and Policy. “But it sends a message to lower courts that, on an issue-by-issue basis, there will be litigation involving what is a fundamental right, such as in the gray area of higher education, and there may be litigation difficult [for the disabled] to defend when not involving a fundamental right, like access to state parks, stadiums, concert halls and the like,” he predicted. How narrow? Although the Lane decision was limited to access to the courts, that category of cases is not necessarily limited to the physical structure of court buildings, say disability rights advocates and others. It may apply to a broad range of court services, they explain, from interpreters for the deaf to jury service by the deaf and vision-impaired. “There will be litigation not only about to what areas does Title II apply, but how do you define those areas-what does access to the courts encompass,” said Jennifer Mathis of the Bazelon Center for Mental Health Law. There is little empirical data about the accessibility of courthouses to the disabled, but there is a strong belief within the disability rights community and among some academics who have studied the issue that a large problem exists. In the Lane case, the American Bar Association (ABA) submitted an amicus brief focusing on the court-access issue. Since the 1990 enactment of the ADA, courthouse and courtroom access has improved, according to the bar association, but lack of access remains a serious problem in many communities. The ABA noted that every quarterly status report on ADA enforcement issued by the Department of Justice since 1994 identifies “numerous” cases and settlements involving states’ failure to provide adequate access to judicial services. Since April 2002, the ABA told the court, at least seven people who are deaf have sued the Minnesota state court system for its failure to provide interpreter services for their court appearances. A 2000 study by a Washington governor’s disability committee found 20 courthouses in that state with access problems under the ADA. “Thirteen years after passage of the ADA, many court systems remain seriously in default on even their most basic obligations under the law,” the ABA told the court. And that is the situation today in Tennessee, said William J. Brown of William J. Brown & Associates in Cleveland, Tenn., counsel to Charles Lane and five other disabled people who sued in the Supreme Court case. In 1970, Brown said, Tennessee adopted a public policy that public buildings should be accessible, and also adopted a North Carolina building code that was the leading standard for accessible buildings until the ADA. Tennessee, he added, never performed the self-audits required by its own statute or by the ADA to identify problems and to develop a plan for addressing them. “We sued 25 counties,” said Brown. “After our lawsuit was filed, a number of these counties made some attempt to modify their courthouses. But not one was ever inspected by the state fire marshal as required by law to ensure compliance either with the ADA or the North Carolina building code.” If the counties had done the self-audits and developed plans only to discover that modifications were cost prohibitive, Brown said he might have been sympathetic. “But they didn’t even do the self-evaluation,” he said. “Fundamentally, what it is, is an unwillingness even to approach the problem.” The Tennessee attorney general’s office declined to be interviewed on the Lane decision. Attorney General Paul G. Summers noted that the case will now go to trial to determine whether the plaintiffs’ rights to courthouse access have been violated. In the Lane decision, Stevens noted a 2002 study of state disability laws that found that only a few states had improved their laws with respect to state facilities and services since the passage of the ADA. Ruth Colker of Ohio State University’s Michael E. Moritz College of Law, a co-author of that study, said there has been much litigation over courthouse access. “Typically it tends to involve older buildings that do not have internal elevators,” she said. “The ADA never requires you to install an elevator. You are typically required to make a first-floor courtroom accessible and then, upon request, allow people to use it. “I don’t think the question entirely is whether courthouses have internal elevators, but whether counties and cities have put in place mechanisms so that when alerted to problems of accessibility, they respond in a lawful manner,” she added. External access also is a problem with some courthouses, she said, and modifications can affect the historical integrity of a building. But, Colker added, there are usually alternative and cost-effective ways of solving that problem as well. There also has been litigation by disabled people, particularly those who are hearing or visually impaired, who want to serve on juries, noted Colker. “I think Lane is broad enough to cover jury service as well,” she said. How broad? But just how broad Lane is will be the next frontier. In the majority decision, Stevens spoke of how Title II “seeks to enforce a variety of other basic constitutional guarantees, infringements of which are subject to more searching scrutiny.” He listed some of those guarantees, including the public’s right of access to criminal proceedings and a criminal defendant’s right to be present at all stages of a trial where his absence might frustrate fairness. In a footnote, he added that because the Lane challenge implicated the fundamental right of access to the courts, it was not necessary to consider whether Title II’s duty to accommodate is constitutional when applied to nonfundamental rights. “All of the areas that he talked about involved fundamental rights,” conceded Mathis. “Certainly we can expect a lot of litigation in all areas with states arguing that Lane is limited to access to the courts or to fundamental rights only. The court did not, in fact, say that.” One of those areas is likely to be prisons, said Brown, noting a pending federal appellate case involving an amputee who was denied a shower stool and claimed a violation of Title II. “What about the person who can’t get up the steps to fill out welfare or food stamp applications?” asked Brown. “And what about higher education? Are we going to say if you’re a nondisabled person, you’ve got the right to attend all classes, but if you’re disabled, you don’t? Some folks will say education isn’t a fundamental right.” Transportation could be a huge area as well, suggested Iowa’s Blanck. “Although there is a right to travel freely, it may not mean the same thing as accessible transportation,” he said. This as-applied approach to the constitutionality of Title II was not the favored approach of disability advocates, except as a fallback position, said Arlene Mayerson, directing attorney of the Disability Rights Education and Defense Fund. “It leaves disabled people uncertain of their rights and leaves advocates uncertain of the results of any particular case,” she said. “It’s extremely cumbersome and cost and court-time inefficient to litigate every single issue. In that sense, the decision is a setback.” And for the states as well. Tennessee’s Summers did say he had hoped for a ruling that would resolve states’ liability for damages under the ADA “across the board, in all areas in which the statute purports to authorize such suits.” But the outcome was “clearly better” than the alternative, from the perspective of the disability rights community, Blanck said. Narrowing the ruling to court access, he added, is “what it took to get [Sandra Day] O’Connor’s vote. You have to be a realist.” It also illustrates the political nature of the high court, he added. “O’Connor, who normally would be aligned with the other side, came along, I think, from a big picture to a very narrow perspective here,” he explained. “If anybody ever says it doesn’t matter who is elected president, they are not living in reality. It will dramatically affect the future of disability rights.” Disability rights scholars, states and advocates also are watching for challenges to Title II based on the argument that Congress lacked power to enact it under the interstate commerce clause-another source, like Section 5, of lawmaking authority. Early in May, the 8 th U.S. Circuit Court of Appeals held that there was no commerce clause basis for Title II in a challenge to Missouri’s $2 annual fee for windshield placards authorizing physically disabled people to use reserved accessible parking spaces. Klinger v. Director, Dept. of Revenue, No. 03-2345. The 8 th Circuit had previously held that Title II was not an appropriate exercise of Congress’ Section 5 power (now overruled by Lane). “We’re increasingly seeing commerce clause challenges,” said the Bazelon Center’s Mathis. “That’s the importance of Lane,” he said. “It’s not just about money damages, but it provides one of the fundamental bases for the law.”

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