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Washington-The Roberts Court this week steps into the next front in the battle between states and the disability rights community over Congress’ authority to remedy discrimination under the Americans With Disabilities Act. U.S. v. Georgia, No. 04-1203, and Goodman v. Georgia, No. 04-1236, which have been consolidated for oral argument, are the latest cases in a series of recent federalism challenges in which the U.S. Supreme Court has been asked whether certain federal statutes are proper exercises of Congress’ lawmaking power under Section 5 of the 14th Amendment. These statutes include the Age Discrimination in Employment Act, the Family and Medical Leave Act and Title I of the Americans With Disabilities Act (ADA). Just last year, a 5-4 high court held that Title II of the ADA, which requires public programs and facilities to be accessible to the disabled, is valid Section 5 legislation as applied to the states in cases involving access to the courts and judicial services. Tennessee v. Lane, 541 U.S. 509 (2004). A gutted ADA? The Georgia cases being argued this week again involve Title II. This time the context is not inaccessible courthouses as in Lane, but state prison systems in general, and Tony Goodman in particular, a wheelchair-bound paraplegic inmate who claims, among other things, that he is confined 23 to 24 hours a day in a cell too narrow for him to turn around in or to drink and perform hygiene functions without help. “What we are most concerned about here is not the ability to bring damages actions-although that’s important because often that is an important strategy for ending unlawful conduct, especially the case in prison and law enforcement contexts-but really whether Congress had the constitutional power to impose the obligations in Title 2 on the states,” explained Ira Burnim, legal director of the Bazelon Center for Mental Health Law, an amicus party supporting Goodman. “If there is no 14th Amendment authority, you may end up with the ADA having no force-from the conduct of criminal proceedings to community integration to voting to higher education,” he said. But Georgia and its supporting states contend that there is no record, as required, of widespread and persisting unconstitutional discrimination against state disabled prisoners to justify Congress’ exercise of its Section 5 authority. Redefinition is sought What Goodman and his supporters-including the U.S. solicitor general-seek is not enforcement of 14th Amendment rights, according to Gene Schaerr of Chicago’s Winston & Strawn, counsel to Tennessee and a number of other states supporting Georgia. “It is, rather, an attempt to redefine the constitutional rights of disabled prisoners,” said Schaerr in his brief. “And if sustained, it will mark the end of deference to State prison operations.” In the past, the Rehnquist Court divided narrowly on these federalism questions. “This will be the Roberts Court’s first opportunity to tell us its collective theory of Section 5 of the 14th Amendment, its theory of the scope of congressional power to enforce constitutional rights,” said Samuel Bagenstos of Washington University School of Law in St. Louis, who will argue on behalf of Goodman. The Eighth Amendment’s ban on cruel and unusual punishments, the 14th Amendment’s due process clause and the Bill of Rights guarantees require states to provide reasonable accommodations for inmates’ disabilities, he said. A “massive body of lower court cases,” he said, documented widespread violations of the constitutional rights of disabled inmates that earlier statutes had failed to remedy. And, Title II is a “proportional and congruent” response-as required by high court rulings-because its requirement of “reasonable modifications” takes account of the unique state interests in the prison context, he argued. But Georgia Assistant Attorney General David Langford, who declined to comment on the case, argues in his brief that Congress did not have a record demonstrating a widespread and persisting pattern of discrimination. And the statute itself fails to show that Congress considered the special context of prisons-”not the differences in the constitutional rights held by state prisoners, and not the deference accorded to prison administrators,” he contends.

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