Eleventh Circuit revives disability bias lawsuits against states.

Two years ago, the U.S. Supreme Court dealt what looked like a death blow to disability discrimination claims against states, ruling that state workers could not sue their employers for money damages under the Americans with Disabilities Act (ADA). (Bd. of Trustees of the Univ. of Ala. v. Garrett, 121 S. Ct. 955 (2001) (Garrett I).)

But the case that took the hit was recently revived by a federal appellate court and may be headed back to the High Court for round two.

On remand, the Eleventh Circuit concluded that state sovereign immunity, which had felled the Garrett plaintiffs' ADA claims at the Supreme Court level, had been waived under [section] 504 of the Rehabilitation Act when the defendants--the University of Alabama and that state's departments of corrections and youth services--accepted federal funding. (344 F.3d 1288 (11th Cir. 2003) (Garrett II).)

"The decision is extremely significant," said Deborah Mattison of Birmingham, Alabama, who represents two of the three plaintiffs in the case. "At least within the Eleventh Circuit, any state entity that accepts federal financial assistance--and I think most state-run agencies do--will be affected by it."

The Rehabilitation Act--a somewhat obscure civil rights law--has come under increased scrutiny since the Supreme Court's Garrett I ruling. Victims of disability discrimination who have since been barred from seeking compensation under the ADA have found that some courts are receptive to similar claims when they are brought under the Rehabilitation Act.

Section 504, enacted in 1973, prohibits discrimination against people with disabilities by "any program or activity receiving federal financial assistance." In 1985, the Supreme Court held that Congress had not made clear whether states that accepted federal funds waived their Eleventh Amendment sovereign immunity from lawsuits. (Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985).)

The following year, Congress clarified its intent by enacting 42 U.S.C. [section] 2000d-7, which says, "A state shall not be immune under the Eleventh Amendment ... from suit in federal court for a violation of [section] 504 ..., or the provisions of any other federal statute prohibiting discrimination by recipients of federal financial assistance."

In Garrett II, the Eleventh Circuit noted that it had already decided the immunity issue in favor of a plaintiff in a Title VI case--Sandoval v. Hagan--that the Supreme Court ultimately overruled on other grounds. (121 S. Ct. 1511 (2001).)

In that case, the Eleventh Circuit noted, it had concluded "that [section] 2000d-7 manifested an "unmistakable intent to condition federal funds on a state's waiver of sovereign immunity.'" Because the defendants in this case had also accepted federal financial assistance, the court ruled, they could not now claim Eleventh Amendment immunity.

The defendants argued that they could not have knowingly waived their Eleventh Amendment protections because they believed that they had lost their immunity when Congress enacted the ADA in 1990. The defendants claimed that until the Supreme Court's ruling in Garrett I, which held that that was not so, they did not think they had any immunity to waive.

The Eleventh Circuit rejected that argument outright: "Where Congress has unambiguously conditioned the receipt of federal funds on a waiver of immunity, Sandoval does not leave open the possibility that a state can continue to accept federal funds without knowingly waiving its immunity."

The same argument has been raised in other circuits, with mixed results. The Third, Eighth, Ninth, and Eleventh Circuits have ruled against states, but the Second and Fifth Circuits have sided with them. The Fifth Circuit decision is under review by an en banc panel of that court.

Given the split among the circuits, Mattison said, the Supreme Court could take up the immunity issue soon, perhaps in her clients' case. Ultimately, Mattison said, the justices might decline to review the issue because the defense argument has limited application--it works only in cases brought before Garrett I.

But, she added, "I have a sinking feeling in my gut that we're going to go up [before the Court] again."