Today’s blog entry is a case from the 11th Circuit that I have blogged on before at both the Circuit Court level and the District Court level. A link to both can be found here185180191118201. On November 10, 2020, the 11th Circuit vacated their previous opinion issued back in March and re-issued another one. Since we have discussed this before, no need to go into the facts, which simply put involves a deaf individual’s inability to access legislative streaming of the Florida legislature. So, the categories for this blog entry are: court’s reasoning sovereign immunity; court’s reasoning Ex Parte Young; court’s reasoning Rehabilitation Act sovereign immunity; concurring opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
Majority Opinion ( Judge Martin)
Court’s Reasoning Sovereign Immunity
- Title II of the ADA explicitly abrogates 11th amendment immunity.
- Explicit abrogation of sovereign immunity isn’t enough, the legislation must also have congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.
- In figuring out whether abrogation is congruent and proportional, a three-step test is used: 1) identifying what right or rights Congress sought to enforce when it enacted the ADA; 2) determining whether there was a history of unconstitutional discrimination to support Congress’s determination that prophylactic legislation was necessary; and 3) whether title II is an appropriate response to that history and pattern of unequal treatment.
- In a footnote, the court noted that the Supreme Court has also said, here186181192119202, that sovereign immunity can also be waived if there is an independent violation of the 14th amendment.
- If the identified right triggers heightened scrutiny or is deemed fundamental, then Congress has greater latitude to abrogate immunity.
- The 11th Circuit has held that sovereign immunity was waived where a right to education was at stake even though that particular right is not subject to heightened scrutiny. In particular, the 11th Circuit recognized that the constitutional right to equality in education, though not fundamental, is vital to the future success of our society. That is, denying persons with disabilities the right to equality in education affected their future ability to exercise and participate in the most basic rights and responsibilities of citizenship, including but not limited to voting and participation in public programs and services.
- It doesn’t make sense that Congress could validly abrogate sovereign immunity to protect the rights of students with disabilities to get an education but could not do the same to directly enable those students to participate in the democratic process.
- Defendants gave the court no plausible reason to believe that the 11th Circuit decision saying that sovereign immunity was abrogated when it came to education was wrongly decided or that its reasoning should not apply.
- Congress’s identification of discrimination in public services and voting establishes the necessary history for discrimination with respect to accessing public legislative information relevant to voting.
- Title II of the ADA provides an appropriately limited response to remedy the history of unequal treatment. The burden of adding captioning to legislative videos already provided to the public removes a complete barrier to that information and can be accomplished with limited cost and efforts. In that way, the remedy is a proportionate and reasonable modification of the service already provided and does not change the nature of the service whatsoever.
- If the costs or effort proved to be prohibitively burdensome, affirmative defenses under title II exist.
- When Congress enacted title II of the ADA, it had evidence before it that deaf people often cannot access government meetings either due to a lack of interpreters or other necessary accessibility features.
- Accordingly given the evidence and the limited nature of the remedy, Congress validly abrogated sovereign immunity under the standard for important rights that nonetheless receive only rational basis review.
Court’s Reasoning Ex Parte Young
- Where a plaintiff challenges a state official’s action on federal grounds, Ex Parte Young allows the plaintiff to seek prospective injunctive relief.
- Since the plaintiff seek an injunction based upon violations of a federal law, the ADA, the exception for not allowing a plaintiff to seek injunctive relief for violations of state law does not apply.
- In a footnote, the court noted that plaintiffs are not requesting any special treatment. Instead, they are requesting equal access to information to which the rest of the population already has access. So, persons with disabilities are being placed on an equal footing rather than being given an unfair advantage. In other words, plaintiffs are merely seeking equal footing with the rest of the hearing public. It certainly would be possible that the legislature could remove the links for the legislative streaming altogether. However, so long as they keep the links up they must comply with title II of the ADA by captioning those videos. Any other conclusion would allow the Florida legislature to avoid compliance with federal statutes and undermine the integrity of the statutory scheme.
Court’s Reasoning Rehabilitation Act and Sovereign Immunity
- A state waves its sovereign immunity if they receive federal financial assistance.
- In cases involving factual challenges to subject matter jurisdiction, the District Court must give the plaintiff an opportunity for discovery appropriate to the nature of the motion to dismiss.
- In the 11th amendment context, a District Court may order limited discovery before deciding whether sovereign immunity requires dismissal.
- The 11th Circuit generally requires that plaintiffs have an opportunity to conduct jurisdictional discovery prior to dismissal.
- Since this opinion says the legislative defendants are not entitled to sovereign immunity for plaintiff’s ADA claim, they are required to answer the complaint and provide discovery on plaintiff’s ADA claims.
Concurring Opinion (Judge Tjoflat)
- Congress validly abrogated sovereign immunity regardless of whether the right implicated is fundamental.
- Plaintiffs are entitled to pursue injunctive relief under Ex Parte Young.
- The District Court did not adequately explain its reason for denying the Florida legislature’s motion to dismiss the Rehabilitation Act claims. Accordingly, that part of the case should be remanded to the District Court for further explanation before deciding whether to affirm its ruling.
- The District Court’s analysis of dismissing the motion to dismiss for the Rehabilitation Act claim was inadequate for two reasons. First, the District Court should not have suggested that it was making only a temporary ruling that might be revisited in the future because issues of immunity should be resolved at the earliest possible stage. Second, the District Court completely ignored the affidavit regarding direct financial assistance as self-serving, as all affidavits are, and it also did not mention the Florida legislature’s argument rebutting the plaintiff claims of indirect financial assistance. So, the proper course would be a limited remand on the Rehabilitation Act claim for further explanation of the District Court’s reasoning for denying the motion to dismiss the Rehabilitation Act claims. Absent more explanation, it can’t be properly decided whether the District Court abused its discretion in dismissing the claim.
- As we have discussed previously, both sovereign immunity and equal protection claims very much depend upon what equal protection class persons with disability fall into. People with disabilities are a moving target in that respect. Unlike other groups, the equal protection class that people with disabilities fall into varies depending upon the facts of the case per this case187182193120203. So, people with disabilities are in the rational basis class with respect to employment per this case188183194121204. However, they are at least in the heightened scrutiny class if not higher when it comes to accessing the courts per this case189184195122205.
- Equal protection jurisprudence is incredibly divisive because it separates out people for different levels of protection depending upon their immutable characteristics, whether they are born with it or develop it later in life.
- For why people with disabilities may fall into a rational basis class, take a look at this case190185196123206.
- The equal protection classes are also a bit of a moving target because not every situation involving rational basis review results in a victory for the government when persons with disabilities are adversely affected by governmental action. That rational basis review still results in an equal protection victory for persons with disabilities may have started with City of Cleburne v Cleburne Living Center191186197124207.
- The 11th Circuit continues its strong trend of favoring the rights of persons with disabilities when disability rights issues come before them.
- I would have to do some research, but it would surprise me if every other Circuit has reached the same conclusion as the 11th Circuit with respect to education and sovereign immunity under the ADA.
- Undue burden is an affirmative defense.
- Where a defendant claims they do not receive federal financial assistance, it is perfectly within the realm of the court’s discretion to conduct limited discovery to ascertain whether that is the case.
- This case could conceivably head up to the United States Supreme Court. As I have mentioned before, people with disabilities frequently win before the Supreme Court when employment matters are not involved. Also, it is far from clear whether a fundamental right is not involved here. After all, accessing legislative proceedings is fundamental to being a good citizen.
- The placing of people with disabilities in the rational basis class in Board of Trustees of the University of Alabama v. Garrett192187198125208 in the first place was not based on sound logic. Cleburne was ostensibly a rational basis decision, but it spent pages upon pages discussing why the discrimination by the town of Cleburne against persons with disabilities was inappropriate. You don’t usually see that in typical rational basis cases. If anything, that case might be better looked at as a rational basis plus situation. In Heller v. Doe193188199126209, the U.S. Supreme Court specifically stated that the parties had agreed that the person with disabilities in that case fell into the rational basis class. That is not to say that persons with disabilities may not have had some difficulty with a rational basis classification with respect to employment because state employers for years have been very good about hiring people with disabilities (if you are wondering why many employers have trouble retaining and hiring people with disabilities, check out this blog entry194189200127210 that I wrote for the Federal Bar Association blog) .
- While I have never worked with one of the attorneys on this case, Courtney Cunningham, I do stay in touch with him.
- I have not had a chance to check it myself, but the case gets even more interesting if the Florida legislature removed the videos from its websites (they may have already done so). If that is the case, then the question becomes whether the litigation is moot and likely to recur. I would argue that it is certainly likely to happen again.
- The costs for captioning in real-time or afterwards are decreasing all the time now that automatic speech recognition technology is coming into its own.