Student Note on ADA, Sovereign Immunity, and Education
New on Westlaw: Camille L. Zentner, Note, Between the Hockey Rink and the Voting Booth: The ADA and Abrogation of Sovereign Immunity in the Educational Context, 71 Brook. L. Rev. 589 (2005). From the introduction:
This Note will argue that Lane prescribed the result in Association for Disabled Americans and that McNulty, in contrast, took an inappropriately narrow view of Lane by summarily foreclosing the possibility of maintaining private actions for education claims under the ADA Title II solely because education is not considered a fundamental right under the Federal Constitution. Although the Lane Court gave substantial weight to the fact that the right at issue was access to courts, the fundamental nature of the right is not entirely controlling in the determination of whether federal legislation, and specifically the ADA Title II, may properly abrogate states' immunity to private suits pursuant to the Fourteenth Amendment's section 5 power. Association for Disabled Americans acknowledged this but did not engage in a comprehensive analysis of the claim in the educational context sufficient to support future differentiation from claimed violations in other public service contexts. In arguing that the Eleventh Circuit reached the proper result, this Note also seeks to supplement the Eleventh Circuit's analysis in two ways: First, this discussion more thoroughly demonstrates why the educational context presents a special case for valid abrogation. Second, it argues that abrogation is valid with regard to claims that implicate either the due process or equal protection guarantee.
Part II will briefly discuss the scope, purpose, and requirements of the ADA generally and Title II specifically. Next, Part III will discuss the evolution of the abrogation analysis and what the Lane decision added to the established standard, specifically addressing the question of whether Title II validly abrogates sovereign immunity. Part IV will illustrate, using the case examples of McNulty and Association for Disabled Americans, how courts should apply this standard acknowledging that the fundamental right consideration was not dispositive in Lane. The McNulty court should not have dismissed the claim under Title II relying solely on the premise that when a nonfundamental right is at issue, the ADA's abrogation of sovereign immunity under Title II cannot under any circumstances be valid. Association for Disabled Americans reached the proper result but should have also engaged in a thorough abrogation analysis sufficient to support future similar decisions in the context of public education. This last part of the Note will suggest a comprehensive alternative analysis that district courts, like the McNulty court, should use to maintain consistency with precedent, including Lane. Unlike the McNulty court's method, this analysis considers the impact of the educational context on the abrogation question.