Judge Sweet on Abrogation Under the ADA/Rehabilitation Act

In a decision issued Monday, now available on Westlaw, Judge Sweet of the Southern District of New York held that the Second Circuit's decision in Garcia v. SUNY Health Sciences Center, 280 F.3d 98 (2d Cir. 2001), applies to bar an ADA Title II/Rehabilitation Act suit by a prisoner who alleged that correction officers destroyed his hearing aids. Degrafenreid v. Ricks, 2004 WL 2793168 (SDNY Dec. 6, 2004). Judge Sweet held, without much discussion, that nothing in Tennessee v. Lane contradicts Garcia's Title II holding -- that "a private suit for money damages under Title II of the ADA may only be maintained against a state if the plaintiff can establish that the Title II violation was motivated by either discriminatory animus or ill will due to disability." Garcia, 280 F.3d at 112. And the court held that Garcia's Rehabilitation Act holding -- that there was no valid waiver of sovereign immunity because at the time it accepted federal funds the state couldn't have known it had any immunity to give up -- applied in full force. The Rehabilitation Act point is especially curious, because Garcia involved conduct that ended by 1995. Crucial to the Second Circuit's ruling in that case was the conclusion that by 1995 -- pre-Boerne and pre-Seminole -- "even the most studied scholar of constitutional law would have had little reason to doubt the validity of Congress's asserted abrogation of New York's sovereign immunity as to private damage suits under Title II." Garcia, 280 F.3d at 114 n.4. The Second Circuit reasoned that a state that accepted federal funds at that point would have thought that its immunity was already abrogated by the ADA and thus would not have made a knowing decision to waive its immunity by accepting federal funds. But the conduct at issue in Degrafenreid occurred in 2002, well after Seminole and Boerne, and even after Garrett and Garcia itself. A state that accepted federal funds at that point would have known that there was at least a real chance that the ADA didn't validly abrogate its immunity. Garcia's Rehabilitation Act holding is already pretty hard to defend; Degrafenreid takes it well past even the defense the Second Circuit offered.