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In 1996, when George Lane was called upon to defend himself against misdemeanor charges in a state court in Polk County, Tenn., he crawled up the stairs to reach the courtroom. Lane, an amputee as a result of an automobile accident, uses a wheelchair. The problem was that the second floor of the historic courthouse to which he was summoned was inaccessible to him. The next time Lane went to court, he refused to crawl or to be carried. The proceedings went on without him. Lane eventually pleaded guilty to a charge of driving with a revoked license. Then, two years later, he filed a $100,000 suit against Tennessee, claiming the state had humiliated him and had violated a requirement of the Americans with Disabilities Act that public buildings like courthouses must be accessible to the disabled. Now Lane’s ADA suit, coupled with a similar complaint filed by Beverly Jones, a Tennessee court reporter who is a paraplegic, has reached the U.S. Supreme Court. Arguments are set for Tuesday. The case looms as perhaps the most important federalism matter of the term and yet another occasion for the justices to examine issues of state government immunity. It also highlights what civil rights advocates say is a nationwide problem — the inaccessibility of many state courthouses to people with disabilities. “This case deals with the heart and soul of the 14th Amendment,” says William Brown, a solo practitioner in Cleveland, Tenn., who will argue the case for Lane and Jones. “People have the right not to have their life, liberty, and property taken from them except with due process of law, and here my client couldn’t even get into the courtroom without much pain and suffering.” Tennessee Solicitor General Michael Moore, who will argue the case for the state, declines comment. In its briefs in Tennessee v. Lane, the state denies that it is insensitive to the needs of the disabled. In fact, Moore wrote in his Supreme Court brief that Tennessee “does not question its duty” to comply with the requirements of the ADA in all of its services and programs. The Polk County courthouse was later fitted with an elevator, after Lane’s case. No one has to crawl the stairs today. But the state hasn’t moderated its legal argument. Tennessee’s lawyers say the key issue is what they see as the ADA’s unconstitutional intrusion upon state prerogatives — specifically, upon the states’ sovereign immunity under the 11th Amendment to claims by citizens for money damages. When Congress passed the ADA in 1990, it explicitly declared that it was removing this state immunity. But the state vigorously asserts in Lane that Congress lacks power under the Constitution and under Supreme Court precedent to do this. And Tennessee is able to cite a very recent Supreme Court case that backs up its argument in a similar context. That is the 2001 ruling in Board of Trustees of the University of Alabama v. Garrett. There, the Court held that Congress went too far when it tried to hold the states accountable for damages under a different section of the ADA that prohibits employment discrimination against the disabled by both private and government employers. In Lane, however, the 6th U.S. Circuit Court of Appeals ruled in 2003 that the Garrett principle didn’t shield the state. The appeals court ruling, permitting Lane’s damages claim to go ahead, will frame the high court argument. The 6th Circuit distinguished between job-bias complaints, in which states have always been given considerable leeway when acting in their capacity as employers, and claims by citizens that they have been deprived of a fundamental right, like voting or access to the courts. Brown’s brief for Lane declares that Title II of the ADA, the one at issue in Lane’s case, “responds to a widespread denial of core rights and obligations of citizenship protected by the Constitution.” “When a state’s courthouses are inaccessible to individuals with disabilities,” Brown wrote, “the state’s actions effectively create a class of persons who are denied access to core privileges of citizenship. Such a result is intolerable under [the] Constitution.” The case also arises against the backdrop of several recent cases in which the Supreme Court has emphasized states’ rights and federalism, striking down efforts by Congress to apply regulatory laws to the states. Last year, however, the Court surprisingly retreated from that posture in Nevada Department of Human Resources v. Hibbs, which held it is constitutional for Congress to apply the Family and Medical Leave Act to state governments. “The Court has embarked on a series of cases that make it hard to provide money damages against the states,” says Teresa Wynn Roseborough, who helped write an amicus brief for several civil rights organizations supporting Lane and Jones. “This slows down the achievement of many of the goals of civil rights groups.” MONEY MATTERS Roseborough, an Atlanta partner at Sutherland, Asbill & Brennan and Justice Department official under former President Bill Clinton, says it’s important to ensure that money damages, not just court injunctions, are available in ADA cases. “Laws have more bite when enforced by money damages,” says Roseborough. “It’s more likely that state legislatures will take corrective action when they know that the failure to take action will have fiscal consequences.” Lawyers defending the ADA provision, including the U.S. Department of Justice, also say that Congress made specific findings that states have discriminated against the disabled in providing public services — something that Congress did not do when it came to employment discrimination by state governments. That, say the ADA’s defenders, distinguishes the current case from the Supreme Court’s 2001 ruling in Garrett. “The aggregate effect of consistently excluding individuals with disabilities from a broad range of important government services causes a constitutional problem that is greater than the sum of its parts,” wrote Deputy Solicitor General Paul Clement in the department’s brief. Clement will argue, along with Brown, on Lane’s behalf. But Tennessee state lawyers reply that Congress said nothing when it passed the ADA about protecting the fundamental rights of citizens to access to the courts and that there is therefore no basis to cancel the states’ immunity under Title II. There is nothing in the legislative history of the ADA “to suggest that Congress was acting to protect due process rights,” state Solicitor General Moore wrote in his brief. Andrew McBride, a constitutional lawyer and Justice Department official in the first Bush administration, says he expects “another 5-4 federalism decision.” “In the end, my prediction is that the states will prevail in this one,” says McBride, a partner at Wiley, Rein & Fielding. “There is really no coherent legal distinction between this case and the Court’s Garrett decision two terms ago.” In addition to federalism concerns, the Lane case also puts the spotlight on the accessibility of thousands of courthouses across the nation, most of which were built long before the ADA became law. An amicus brief filed by the American Bar Association in support of Lane and Jones deals exclusively with this issue. The courts must be “a model of accessibility” and must not exclude the disabled from full participation “as litigants, witnesses, attorneys, judges, jurors, courthouse staff, or observers,” wrote Paul Wolfson, counsel at Wilmer, Cutler & Pickering, in the ABA brief. The pro bono brief cites dozens of instances, however, in which state courts have failed to provide wheelchair ramps, sign language interpreters or other accommodations. “Virtually every quarterly status report issued since 1994 by the U.S. Department of Justice regarding ADA enforcement identifies numerous cases and settlements involving states’ failures to provide adequate access to judicial services for persons with disabilities,” Wolfson wrote. Wolfson says in an interview: “The justice system loses its legitimacy if it is or appears to be closed to any group, including the disabled. The Supreme Court has held that once the government creates an avenue of justice, it can’t say that only those who can afford the court fees can take advantage of it, and we see this situation as analogous.” The federal court system, says Richard Carelli, spokesman for the Administrative Office of the U.S. Courts, is not covered by the ADA. However, Carelli says, the federal courts have committed themselves to voluntary compliance with ADA standards in building or renovating courthouses. A recent renovation of the Supreme Court building, Carelli says, included the installation of a marble wheelchair ramp to make the 1935 building accessible.

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