Recent Supreme Court cases regarding Congress's abrogation authority have seriously impaired Congress's ability to demonstrate a valid exercise of its Section 5 power under the Fourteenth Amendment to subject nonconsenting states to suit for money damages in federal court. During its 2003 term, the Supreme Court has again granted certiorari to a case involving the proper scope of Congress's section 5 power, Lane v. Tennessee. Lane involves a suit for money damages under Title II of the ADA based on the alleged failure of the State of Tennessee to make its courthouses accessible. Many commentators suggest that the Supreme Court will follow its current precedent and deny a damage remedy in Lane, particularly since the Court barred a suit for damages brought by a state employee for an alleged violation of Title I of the ADA in Board of Trustees of the University of Alabama v. Garrett. This article critiques the Court's current analysis as seen in Garrett and proposes that the Court should evaluate the ADA's Title II damage remedy against the states differently than it did Title I's. It suggests that the Court should adopt an "as applied" analysis when deciding Title II damage remedy claims. By examining the specific state program or service alleged to discriminate against the disabled, the Court may apply a different level of scrutiny to the state's action than the rational basis scrutiny that applied in Garrett. For example, in Lane, the fundamental right of access to the state court system has been denied to disabled plaintiffs in Tennessee because the courthouses are inaccessible to those who cannot walk up the stairs. Because the Lane case involves a fundamental right, the Court should apply strict scrutiny when evaluating Title II's congruence and proportionality. Analyzing the Lane case, and other Title II damages claims on the facts and with respect to the right that has allegedly been abridged is the appropriate federalism standard.
Malloy, S. Elizabeth and Cahill, Timothy J., "Overcoming the Obstacles of Garrett: An as Applied Saving Construction for the ADA's Title II" (2004). Faculty Articles and Other Publications. 38.