Friday, May 27, 2005

Eighth Circuit: Lane is Limited to Access-to-Courts

In Bill M. v. Nebraska Dep't of Health and Human Services, the Eighth Circuit today held that Title II does not validly abrogate state sovereign immunity in an Olmstead-type case. The court did not engage in any analysis of the congruence and proportionality of the statute to actual or threatened constitutional violations in the Olmstead context. Instead, it pointed to its pre-Lane en banc ruling in Alsbrook v. City of Maumelle, which held that Title II was not valid Section 5 legislation in any circumstances. The court recognized that Tennessee v. Lane abrogated Alsbrook insofar as the statute applies to demands for access to judicial services, but it held that outside of that narrow context Alsbrook controls and Title II is not valid Section 5 legislation. That analysis seems to me inconsistent with Lane's as-applied approach, and it conflicts with the Eleventh Circuit's recent Florida International University opinion. This begs for rehearing en banc.


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