From Volume 80, Number 2 (January 2007)
On July 26, 2005, President George W. Bush released a proclamation celebrating the fifteenth anniversary of the Americans with Disabilities Act (“ADA”), signed into law by the former President Bush. In the proclamation, President Bush “call[ed] on all Americans…to fulfill the promise of the ADA [and] to give all people the opportunity to live with dignity, work productively, and achieve their dreams.” At the time of its signing there were more than forty-three million disabled persons in the United States; this number has grown to more than forty-nine million. The purpose of the ADA was to eliminate discrimination against this growing population in a number of areas by providing a “legal recourse to redress such discrimination.”
While the overall success of the ADA is debatable, it is clear that private enforcement of the ADA has been under attack for the last ten years – at least when the defendant is a sovereign state. Since the controversial Seminole Tribe of Florida v. Florida decision in 1996 – holding that Congress can abrogate a state’s sovereign immunity only through a valid exercise of Section 5 of the Fourteenth Amendment – the survival of a private cause of action against a state entity under the ADA has been questionable. In the last five years, the Court has attempted to provide an answer. In Board of Trustees of the University of Alabama v. Garrett, the Court held that Title I of the ADA, which prohibits disability discrimination in the context of employment, was not a valid exercise of Section 5 and therefore could not abrogate state immunity. Although the Garrett decision was limited to Title I, many of the lower courts assumed that the sovereign immunity bar would extend to Title II, which regulates access to public services and programs. Then, in Tennessee v. Lane, the Court held that Title II’s application to the fundamental right of access to the courts was a valid exercise of Section 5, and the immunity bar was tentatively lifted.