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Reversing himself, a federal judge has ruled that states and their agencies are immune from suits under Title II of the Americans with Disabilities Act, the section that covers discrimination by any “public entity” in its provision of “services, programs or activities.” Judge Harvey Bartle III of the U.S. District Court for the Eastern District of Pennsylvania had previously refused to dismiss Jones v. Commonwealth of Pennsylvania, saying that a “strong majority” of the federal appellate courts had concluded that states have no 11th Amendment immunity under Title II. But Bartle said he was forced to reconsider his ruling after the U.S. Supreme Court handed down its decision in Board of Trustees of the University of Alabama v. Garrett in which the justices held that states are immune from suit under Title I of the ADA, the section that covers employment discrimination. In Garrett, the justices found that Congress failed to “abrogate” the states’ 11th Amendment immunity since the lawmakers didn’t “identify a history and pattern of unconstitutional discrimination by the states against the disabled.” As a result, the justices said, Congress’ decision to apply the law to the states was an invalid exercise of its powers under Section 5 of the 14th Amendment. Bartle said he recognized that Garrett dealt only with Title I and that the justices “expressly declined” to decide whether states are also immune under Title II. “Nevertheless, we believe that the analytical framework established by the court is clearly applicable to this case and requires a reversal of our earlier conclusion that Congress abrogated states’ 11th Amendment immunity under Title II,” Bartle wrote. In the suit, Michael Jones, who is blind, claims he was mistreated by the Pennsylvania Department of Public Welfare and its Bureau of Blindness and Visual Services after he enrolled in job training classes. Acting as his own lawyer, Jones claims he was repeatedly expelled from the classes and was forced to appeal several times to win re-enrollment. As a result, he complained that his 16-week training course took nearly three years to complete. Early on, Judge Bartle apparently recognized that handling the case would entail tackling a few complex legal questions. Bartle issued an order instructing the court clerk to appoint a lawyer from the court’s list of lawyers willing to take on pro se civil rights cases. But no lawyer ever entered an appearance for Jones because three lawyers in a row turned the case down. At that point, the court’s policy is to abandon the search for a willing lawyer. Ultimately, Bartle was forced to rule on a motion filed by Senior Deputy Attorney General Claudia M. Tesoro — without any brief from Jones’ side — that urged the court to reconsider the January 2000 decision and toss out the Title II claim on immunity grounds. Tesoro argued that the Supreme Court has ushered in a strong trend of recognizing 11th Amendment immunity even when Congress purports to abrogate it. The trend began in 2000 with Kimel v. Florida Board of Regents, she said, in which the justices held that states are immune from suit under the Age Discrimination in Employment Act. The 3rd U.S. Circuit Court of Appeals quickly followed with Lavia v. Commonwealth of Pennsylvania, a decision that accurately predicted Garrett in holding that states are not subject to Title I of the ADA. Tesoro argued that Bartle should follow the trend and dismiss the Title II claim in Jones’ case as barred by the 11th Amendment. Although the 3rd Circuit has yet to weigh in on the question, Tesoro noted that the 7th Circuit and several trial judges have already extended Garrett‘s reasoning to bar claims under Title II. Bartle found that his first task was to decide whether Title II’s remedies are “congruent and proportional to the problem of disability discrimination by the states.” When subjecting states to laws, Bartle found that the power of Congress is limited to legislating to enforce the 14th Amendment. In the case of the ADA, he said, Congress was seeking equal protection for the disabled. The Garrett court elaborated on that point, saying “states are not required by the 14th Amendment to make special accommodations for the disabled, so long as their actions toward such individuals are rational.” Bartle concluded that Title II goes too far because it “does not merely proscribe irrational or intentional discrimination against individuals with a disability. Rather, the statute and its regulations address a much broader scope of otherwise constitutional activity by requiring public entities, including states to provide affirmative action for the disabled.” The fatal flaw in Title II, Bartle found, is that Congress never identified a “history and pattern” of discrimination by the states against the disabled. Most of the evidence in the Congressional Record involved local officials, Bartle noted, and while there was some evidence of states refusing accommodations, there was no proof of a pattern of irrational, unconstitutional conduct. “The record established by Congress with respect to Title II of the ADA does not sufficiently demonstrate that states have engaged in a pattern of unconstitutional discrimination,” Bartle wrote. Attorney Max P. Lapertosa of the Public Interest Law Center of Philadelphia said states are not off the hook yet with the ADA since lawsuits can still be brought against individual state officials if the plaintiff is seeking purely equitable or injunctive relief. As long as the plaintiff is not seeking money damages, Lapertosa said, there is no 11th Amendment immunity problem since there will never be a money judgment that must be paid out of the state treasury. But Lapertosa also said the civil rights plaintiffs’ bar has not given up on the argument that states should be subject to Title II damage suits even if they aren’t subject to Title I. In Garrett, he said, the justices explicitly refused to rule on the validity of Title II and focused instead only on whether the legislative history supported Title I. As a result, he said, the justices narrowed the case to deciding whether there was a history of states discriminating against the disabled in employment and concluded there was not. But Lapertosa said a stronger argument can be made to support Title II because Congress was looking to a much broader range of state activities, including mental institutions and segregated education of disabled students.

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