Tennessee V. Lane: The Supreme Court Furthers Muddies the State Sovereign Immunity Water
Bible, Jon D., Labor Law Journal
Between 1996 and 2001, a Supreme Court majority consisting of Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas issued seven decisions that greatly expanded the scope of the Eleventh Amendment to the Constitution, which prohibits suits for damages against unconsenting states.1 After the last decision, Bd. of Trustees of the Univ. of Alabama v. Garrett,2 in which these Justices disparaged Congress and used disingenuous reasoning in voiding Title I of the Americans with Disabilities Act (ADA),3 which bars employment discrimination against the disabled, it seemed safe to assume that no law could survive an immunity attack.4 In 2003, however, in Nevada Dept. of Human Resources v. Hibbs? Rehnquist and O'Connor surprised everyone by jumping ship to form a 6-3 majority, with Justices Stevens, Souter, Cinsburg, and Breyer, that took a deferential approach to Congress in upholding the Family and Medical Leave Act (FMLA);" indeed, Rehnquist wrote the opinion.7 Then, in May 2004, a 5-4 Court in Tennessee v. Lane8 again confounded observers by upholding Title II of the ADA, which bans discrimination against the disabled in public services, programs, and activities, partly on the strength of evidence that was discredited in Garrett. In Lane, Rehnquist rejoined Scalia, Kennedy, and Thomas, while O'Connor, without indicating why she did not follow Garrett, stuck with the others in the Hibbs majority. After Lane, the only thing that one can say with certainty about state sovereign immunity law today is that there is no certainty to it.
This article focuses on Lane. It discusses the reasoning and outcome in the case, compares Lane with Garrett and Hibbs, and speculates on where the law in this area now stands. The article argues that Lane is a very limited ruling that is hardly a major victory for disability rights. Lane is logically irreconcilable with Garrett and Hibbs, has left the law in more of a shambles than it was after those decisions, and will generate an onslaught of litigation designed to pin down its meaning and scope.
The plaintiffs in Lane, paraplegics in wheelchairs, claimed that they were denied access to, and the services of, the lennessee state court system because of their disabilities. Lane alleged that he had to crawl up the stairs to make his first appearance in a case in the second floor of a courthouse with no elevator, but that when he returned for a hearing he refused to crawl again or to be carried by officers and was jailed for failing to appear. Jones, a certified court reporter, alleged that she lost both work and the opportunity to participate in the judicial process because she could not gain access to several courthouses. seeking damages and equitable relief, they sued in 1998 under Title IT of the ADA, which provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity."·' The state moved to dismiss the suit under the Eleventh Amendment, but a panel of the Court of Appeals for the Sixth Circuit allowed the suit to proceed.10
No doubt the state filed its motion confidently, for by 1998 the Court had issued two sweeping decisions, Seminole Tube of Fla. v. Fla.11 and City of Boerne v. Flores,12 that rewrote the law of sovereign immunity and put the Rehnquist-led majority firmly on the side of the states. These decisions, however, only represented the bud; the full flower came in the rulings issued between 1999-2001, in which the Court, increasingly harsh in its criticism of Congress, struck down five laws. Of these decisions, Kimelv. FIa. Bd. of Regents and Garrett are the most relevant for present purposes.13
Analytical framework for deciding Eleventh Amendment issues
According to this line of cases, Congress may abrogate state immunity only under section 5 of the Fourteenth Amendment, which allows it to enforce the equal protection and due process rights in section 1. …