Stein on Disabling Brown
New on Westlaw: Michael Ashley Stein, Disabling Brown, 14 Wm. & Mary Bill Rts. J. 1421 (2006). It's a short introduction to a symposium, and it begins:
On May 17, 1954, the United States Supreme Court issued its decision in Brown v. Board of Education, arguably the most famous American civil rights case of the twentieth century, striking down segregation in public schools. Exactly fifty years later, the Court decided Tennessee v. Lane, finding that disabled citizens may sue states under Title II of the Americans with Disabilities Act of 1990 (ADA) to enforce a right of access to court services.
Though ostensibly a victory for people with disabilities, the majority decision in Lane is the by-product of a fractured Court, and is limited both in scope and applicability. Despite the ADA's prohibition against disabled persons being "excluded from participation in or be[ing] denied the benefits of the services, programs, or activities of a public entity," the Court confined its holding to an individual's right of access to courts. In so doing, it left open the question of whether people with disabilities can gain relief when denied access to other state facilities, programs, and services. Lane is, therefore, of a piece consistent with the Court's positive ADA jurisprudence upholding claims within a narrow set of plaintiff-specific rights -- in this instance, the right of a paraplegic wheelchair-user to be able to physically enter a court of law to attend and answer criminal charges rather than drag himself up and down flights of stairs, as he had done for his first appearance. From a disability rights perspective, Lane is nevertheless preferable to the broad policy statements the Court issues when negatively interpreting the ADA's employment provisions.
What, then, can be learned by examining the respective methodologies and contexts of Brown and Lane?