Under Tennessee v. Lane, the equal protection class persons with disabilities fall into is going to depend upon the facts and circumstances of the individual case. That equal protection class is also going to dictate how likely a state is going to be able to defend on the grounds of sovereign immunity. The question raised by this blog entry is whether a plaintiff can get around that by focusing on the Rehabilitation Act instead of or in addition to title II of the ADA.

A case that explores this question is Gaylor v. Georgia Department of Natural Resources, 2013 WL 4790158 (N.D. Ga. September 6, 2013). In this case, the plaintiff suffered from multiple sclerosis and desired to access various state parks in Georgia, but during his visits to those various state parks he faced difficulties accessing their goods, services, programs and activities within the parks due to architectural barriers. Accordingly, he sought declaratory relief that the parks were inaccessible in violation of the ADA and the Rehabilitation Act. He also sought injunctive relief against the state of Georgia to stop them from the discriminatory practices and to require them to make the necessary improvements to correct the violations. Importantly, he also sought compensatory damages as well as attorneys fees. The state of Georgia defended on the grounds of sovereign immunity, among other arguments.

The particular decision cited above is actually the second decision. In the first decision, the court said that the plaintiff had adequately pled the waiver of immunity as to his Rehabilitation Act claim because defendant received federal funds. There is a line of cases saying that if you can show that the particular state agency or State Department being sued takes federal funds, then that particular state agency or State Department waves its sovereign immunity under the Rehabilitation Act. With respect to Rehabilitation Act cases, it is not statewide but rather individual to each department or state agency as to the waiver of sovereign immunity.

Whenever a court considers sovereign immunity vis-à-vis the ADA, they will look at three factors per City of Boerne v. Flores, 521 U.S. 507 (1997): 1) The constitutional right(s) Congress sought to enforce in enacting the ADA; 2) whether there is a history of unconstitutional discrimination to support Congress’s determination that prophylactic legislation was necessary; and 3) whether title II of the ADA was an appropriate response to that history and pattern of unequal treatment.

With respect to the ADA, in its first decision, the court said that while persons with disabilities may be in the rational basis class, nevertheless, persons with disabilities had a right to be free of irrational discrimination in accessing state parks and recreational facilities under the equal protection clause of the 14th amendment. The court also said in its first decision that Congress had documented a sufficient history of unconstitutional disability discrimination in the providing of public services in order to justify enactment of title II of the ADA. In its first decision, the court left it for another day as to whether title II and its regulations were an appropriate response to the history of discrimination faced by persons with disabilities since the plaintiff was not specific in alleging what regulations the state violated. The plaintiff then responded with an amended complaint specifying the regulations that were violated. Once again, the state of Georgia defended on sovereign immunity grounds, among other reasons. The United States then intervened in the case and filed a brief against the State of Georgia arguing that the court need not decide whether title II and its regulations were a proportionate response since the Georgia Department of Natural Resources had waived its 11th immunity under the Rehabilitation Act and the Rehabilitation Act (the two acts being essentially the same except for causation language).

The court agreed with the Department of Justice that whether title II of the ADA and its regulations were a proportional response was purely an academic matter that did not need to be decided in this case. In reaching that conclusion, the N.D. of Georgia reasoned as follows:

1. The court cited to a Fifth Circuit case, there are others, saying that receipt of federal funds waived sovereign immunity under § 504 of the Rehabilitation Act.

2. The only material difference between the rights and remedies that a plaintiff has under § 504 of the Rehabilitation Act and title II of the ADA is in their causation requirements. However, that difference is immaterial where the plaintiff’s claim is based on a failure to make reasonable accommodations for persons with disabilities.

3. Since the plaintiff was challenging architectural barriers in the parks, title II of the ADA and § 504 of the Rehabilitation Act have the same rights and remedies. Accordingly, unless the state of Georgia could show that the Department of Natural Resources did not take federal funds, it would seem very unlikely that they could do that, the N.D. of Georgia felt no need to visit the title II sovereign immunity issue.

This case involves more than just sovereign immunity. Once the court got beyond sovereign immunity, the state of Georgia defended on the ground that no private right of action existed for violating the regulations themselves. The court was having none of that argument either and reasoned as follows:

1. The court noted it had already found that the plaintiff was not attempting to alleged violations of specific regulations as the basis for a private cause of action.

2. As mentioned previously in another blog entry, the Supreme Court of the United States in Alexander v. Sandoval, 532 U.S. 275 (2001), discussed when a regulation will support a private cause of action. What the court said there was where a statute creates a private cause of action and authorizes the issuance of implementing regulations, those valid and reasonable regulations carrying out that statute are equally as enforceable by a private cause of action as violations of the statute itself. The specific regulations alleged by the plaintiff in this case where the kinds of regulations that validly and reasonably carried out the statute and therefore, allowed for private cause of action for their violation.

Another issue that Georgia brought up was perhaps the regulation went too far or exceeded statutory authority. The court was having none of that argument either.

1. The court said that the definition of qualified in title II of the ADA, which echoes the Rehabilitation Act, as well as the findings that Congress made in enacting title II of the ADA where they noted the discriminatory effects of failure to make modification to existing facilities and practices, meant that the Department of Justice regulations requiring reasonable modifications to procedures to avoid discrimination prohibited by title II were consistent with their statutory authority to implement the statute.

2. Georgia also tried to argue the architectural requirements were not in the statute and therefore went too far when it came to implementing the statute. However, the court dismissed that argument because the ADA specifically references by statute that title II implementing regulations had to include architectural and design standards ensuring accessibility to public buildings and facilities by individuals with disabilities. Further, those regulations went through the proper process for becoming final regulations.

The last issue was whether the plaintiff had properly pleaded his claim. The court said that the plaintiff had in the given the defendant sufficient notice as to the facts of the claim and therefore, that argument failed as well.


1. Title II of the ADA and § 504 of the Rehabilitation Act are substantially the same BUT causation is different. Accordingly, if you don’t mind dealing with the stricter causation standard of the Rehabilitation Act and you can show that the State Department or state agency you are suing received federal funds, adding a claim under the Rehabilitation Act could very well get you around sovereign immunity;

2. The ADA regulations pertaining to intentional discrimination supports private causes of action alleging violations of those regulations;

3. With respect to the Rehabilitation Act and sovereign immunity, the plaintiff will have to show that the particular state agency or State Department being sued takes federal funds