State Independent Living Council Discussion Archive

NATSILC: Major Legal Victory For ADA Cases

Posted by: Lou Diehl
Date Mailed: Wednesday, October 8th 2003 05:31 AM

From: Teresa Torres
Date: Thu, 2 Oct 2003 22:50:25 EDT
Subject: Major Legal Victory for ADA Cases

September 26, 2003
ABA Journal and Report
State Waives Sovereign Immunity by Accepting Federal Funds, 
Appeals Court Says

The congressional spending clause of the U.S. Constitution may be mightier
than the 14th or 11th Amendments, at least when it comes to suing a state
agency in federal court over disability discrimination. 

In a Sept. 11 decision, the 11th U.S. Circuit Court of Appeals allowed
claims by three Alabama state employees under a section of the 1973
Rehabilitation Act, which generally protects government employees from
disability discrimination. The section applies to state workers for
federally funded programs. 

The three-judge appellate panel cited a provision that says a state waives
immunity from federal suit if it continues to receive federal funds.
Garrett v. University of Alabama at Birmingham Board of Trustees, No. 

The ruling revives claims of plaintiffs who were prevented two years ago
by the U.S. Supreme Court from suing under the 1990 Americans With
Disabilities Act. In a milestone ruling on state sovereign immunity, the
high court held that Congress exceeded its power under the 14th Amendment
in abrogating state immunity. Board of Trustees of the University of
Alabama Birmingham v. Garrett, 531 U.S. 356. 

However, the Atlanta-based 11th Circuit cited a provision that
"unambiguously conditions the receipt of federal funds on a waiver of 11th
Amendment immunity to claims under section 504 of the Rehabilitation Act.
By continuing to accept federal funds, the state agencies have waived
their immunity." The provision, 42 U.S.C.  2000d-7, does not mention the

The decision upholds the claims of Patricia Garrett, Milton Ash and Joseph
Stephenson. In separate cases in 1997, Garrett sued the University of
Alabama at Birmingham; Ash, the Alabama Department of Youth Services; and
Stephenson, the Alabama Department of Corrections. All three made claims
under the ADA and the Rehabilitation Act. 

The state agencies had argued that they were immune from the disability
suits under the 11th Amendment, which generally prevents a state from
being sued in federal court. Two years ago, the supreme court agreed, at
least as far as the ADA was concerned. The high court also rejected
Congress' power to abrogate state immunity under the 14th Amendment,
which, among its provisions, recognizes plaintiffs' equal protection

"Abrogation is different from waiver," says Birmingham attorney Deborah
Mattison, who represents Garrett and Ash. "With abrogation, Congress just
says, 'States, you have no immunity.' With waiver, a state waives its
immunity by taking federal financial assistance. 

"Congress' power under the spending clause is more extensive than under
the 14th Amendment," she says. 

Employment lawyer James P. Reidy of Manchester, N.H., says the extent of
Congress' authority under the spending clause is "an open question" likely
to go to the supreme court eventually. 

"I think there is a trend in the country by states to challenge how far
Congress has gone in curtailing the sovereign immunity with respect to
various employment laws," Reidy says. 

Already the decision has created a split with the 2nd Circuit in New York
City, which ruled that a state could not knowingly waive immunity under
section 504 because the state would believe that Congress had already
abolished its immunity under the ADA. Garcia v. S.U.N.Y. Health Sciences
Center of Brooklyn, 280 F.3d 98 (2001). In other words, how could the
state knowingly waive its immunity when it did not believe it had immunity
in the first place? The 11th Circuit rejected that reasoning. 

Nevertheless, Mattison says, the decision "presents an extremely important
avenue for people with disabilities to have their cases heard. The supreme
court's [2001] decision in Garrett was such a devastating blow because it
left those victims of disability discrimination by state agencies with no
meaningful remedy under the ADA. At least with respect to section 504 of
the Rehabilitation Act, this decision may rectify the damage done to the
disability community." 


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