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While the U.S. Supreme Court has the last word in any case it reviews, that last word often raises more questions than it answers-and in some cases doesn’t answer the very question it agreed to resolve. Consider the recent opinion in Tennessee v. Lane. The court held that people with disabilities denied access to courthouses could sue states for damages under Title II of the Americans With Disabilities Act (ADA). Yet the court did not answer the broader question of the application of Title II in other settings. And, most peculiarly, the court deviated sharply from the analysis it has used in recent, similar cases. As with previous cases involving religion, age- and disability-related employment discrimination and the Family and Medical Leave Act, in Lane the high court asked whether Congress had the constitutional authority to abrogate 11th Amendment immunity (which customarily bars awarding damages to a citizen against a state) under Congress’ 14th Amendment enforcement authority. For Congress to have the requisite power, its enactment must be a proportional and congruent response to an established history of constitutional violations documented in the statute’s legislative history. The case involved George Lane, a man with paraplegia who could not attend criminal proceedings against him because he could not climb the stairs in a Tennessee courthouse. The court, ruling 5-4, found that Title II passed the test-at least with respect to access to courthouses-and Lane could seek damages against Tennessee. But the court left to another day the myriad other situations to which Title II might apply. Chief Justice William H. Rehnquist, dissenting, pointed out that the majority opinion employs an analysis new to, and in many respects at odds with, the court’s recent federalism decisions. Previously, the court considered the challenged statutes as a whole in the context of their legislative histories and the constitutional treatment of the issues the statutes address; the statute would rise or fall in toto. In Lane, the court considered the statute as applied in a particular circumstance only. This is troubling because it’s inconsistent with the way the court has analyzed other statutes, including Title I of the ADA (concerning employment discrimination). Rehnquist also noted that the ADA’s legislative history, which broadly addresses the problem of access to state and local government programs and services, says essentially nothing about courthouses. Bringing O’Connor in Although the majority did not explain its unusual approach, the likely reason was to obtain the “swing” vote of Justice Sandra Day O’Connor. Why did she break ranks in Lane with Rehnquist and justices Antonin Scalia, Anthony Kennedy and Clarence Thomas, her usual partners in recent federalism cases? The reason (suggested by the majority opinion) might be that access to courts is a fundamental due process right. Perhaps O’Connor concluded that this was one discrete situation in which her general preference toward states’ rights should yield. It seems likely that the justices in the majority would have held more expansively that all of Title II passes muster, but agreed to the far more limited holding to bring O’Connor into the fold. That judicial compromise, however, had a rather odd final result. The court’s opinion does not actually answer the question accepted for review. Tennessee’s certiorari petition posed two questions: Whether Title II exceeds Congress’ authority under the 14th Amendment and whether the court’s federalism analysis should be different when the case presents due process concerns. Though the court granted certiorari only on the first question, the opinion seems to focus more on the second. And while Title II applies to all public programs and services, the Lane opinion is expressly limited to courthouse access, offering little guidance with regard to the thousands of other problems persons with disabilities might confront in their encounters with the government. Consider the orders issued by the court, just a week after issuing Lane: It remanded for reconsideration in light of Lane cases from the 1st, 4th, 6th and 9th U.S. circuit courts of appeal and the Florida District Court of Appeal dealing with the application of Title II to prisons, state universities and assessment of fees related to parking for those with disabilities. Yet the narrowness of the Lane decision and its deviation from traditional Supreme Court analysis leaves the judges on those cases with no real guidance. Inevitably, some or all of those cases (or similar ones) will land on the high court’s doorstep. One hopes the questions raised in those cases will be answered with greater finality. David R. Fine is a partner in the Harrisburg, Pa., office of Kirkpatrick & Lockhart.

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