The Americans with Disabilities Act: The Opinions of Justice O'Connor
CRS Report for Congress
The Americans with Disabilities Act: The
Opinions of Justice O’Connor
Nancy Lee Jones
Legislative Attorney
American Law Division
Summary
The Americans with Disabilities Act (ADA) is a civil rights statute that has as its
purpose “to provide a clear and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities.”1 Since its enactment in 1990, it
has been the subject of numerous lower court decisions and the Supreme Court has
decided nineteen ADA cases. Justice O’Connor has been in the majority in almost all
of these decisions and has been a deciding vote in several 5-4 decisions, notably in the
recent decisions of Garrett v. University of Alabama and Tennessee v. Lane regarding
the application of the Eleventh Amendment to the ADA. This report will not be
updated.
Justice O’Connor has taken part in every ADA case presented to the Supreme Court
and her influence on ADA jurisprudence has been significant, if not always easy to
categorize.2 One commentator has described Justice O’Connor as “frequently sid(ing)
with business interests against the interests of individuals with disabilities” but
“nonetheless...sid(ing) with people with disabilities in a number of important disability
rights cases.”3 Her approach has been labeled “pragmatic” and one where the specific
issues were central to her decisions.4
1 42 U.S.C. §12101 et seq. For a detailed discussion of the ADA see CRS Report No. 98-921,
The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues, by Nancy
Lee Jones.
2 For a discussion of the Supreme Court decisions on the ADA see CRS Report RL31401, The
Americans with Disabilities Act: Supreme Court Decisions, by Nancy Lee Jones.
3 “Significance of O’Connor Resignation for Disability Rights,” [http://www.jfanow.org/jfanow
/index.php?mode=A&i d=2372;&s ort=D]
4 “Justice O’Connor’s ADA Legacy Marked by Pragmatic Conservatism,” 30 Disability
Compliance Bulletin (July 21, 2005).
Congressional Research Service ˜ The Library of Congress
One of the most discussed aspects of Justice O’Connor’s legacy is her role in the
Court’s federalism decisions and a key question is to what extent her retirement will tip
the delicate balance in these decisions.5 Justice O’Connor’s vote in Tennessee v. Lane,
541 U.S. 509 (2004), finding that the ADA guarantees the access to court for individuals
with disabilities, was critical to forging a majority opinion limiting the often referred to
“federalism revolution.” In her absence the results of subsequent cases relating to the
ADA, especially those involving federalism, are uncertain.
Application of the Eleventh Amendment to the ADA
The impact of Justice O’Connor’s views has been critical in the area of federalism.
She voted with the majority in several decisions that placed limitations on federal power6
but in the recent decision of Tennessee v. Lane she was the swing vote in a case that found
Congress had validly exercised its authority. In the ADA context, federalism issues have
arisen regarding the circumstances where section 5 of the Fourteenth Amendment can be
used to abrogate the Eleventh Amendment.
The Eleventh Amendment states: “The Judicial power of the United States shall not
be construed to extend to any suit in law or equity, commenced or prosecuted against one
of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign
State.” The Supreme Court has found that the Eleventh Amendment cannot be abrogated
by the use of Article I powers but that section 5 of the Fourteenth Amendment can be used
for abrogation in certain circumstances. Section 5 of the Fourteenth Amendment states:
“The Congress shall have the power to enforce, by appropriate legislation, the provisions
of this article.”
Recent Supreme Court decisions in College Savings Bank v. Florida Prepaid
Postsecondary Educ. Expense Board,7 Florida Prepaid Postsecondary Educ. Expense
Board v. College Savings Bank,8 and Kimel v. Florida Board of Regents9 reiterated the
principle that the Congress may abrogate state immunity from suit under the Fourteenth
5 For a discussion of the future of the “federalism revolution” see Linda Greenhouse, “The
Rehnquist Court and Its Imperiled States’ Rights Legacy,” The New York Times (June 12, 2005);
and Herman Schwartz, “A Deeply Rooted Revolution: Rehnquist and O’Connor’s Federalism
Legacy will Thrive Long After They’ve Left,” Legal Times (July 8, 2005)
6 For a discussion of this issue, with an emphasis on the Tenth Amendment, see CRS Report
RS22199, Federalism Jurisprudence: The Opinions of Justice O’Connor, by Kenneth R. Thomas
and Todd B. Tatelman.
7 527 U.S. 666 (1999) (The Trademark Remedy Clarification Act, TRCA, which subjected states
to suit for false and misleading advertising, did not validly abrogate state sovereign immunity;
neither the right to be free from a business competitor’s false advertising nor a more generalized
right to be secure in one’s business interests qualifies as a property right protected by the Due
Process Clause).
8 527 U.S. 627 (1999)(Congress may abrogate state sovereign immunity but must do so through
legislation that is appropriate within the meaning of section 5 of the Fourteenth Amendment;
Congress must identify conduct that violates the Fourteenth Amendment and must tailor its
legislation to remedying or preventing such conduct).
9 528 U.S. 62 (2000).
Amendment and found that there were three conditions necessary for successful
abrogation.
!Congressional power is limited to the enactment of “appropriate”
legislation to enforce the substantive provisions of the Fourteenth
Amendment.
!The legislation must be remedial in nature.
!There must be a “congruence and proportionality” between the injury
to be prevented and the means adopted to that end.
The ADA uses both the Fourteenth Amendment and the Commerce Clause of the
Constitution as its constitutional basis.10 It also specifically abrogates state immunity
under the Eleventh Amendment.11 The ADA, then, is clear regarding its attempt to
abrogate state immunity; the issue is whether the other elements of a successful
abrogation are present. The Supreme Court in Garrett v. University of Alabama,531 U.S.
the Court upheld title II13 as it applies to the access to courts.14
In Garrett v. University of Alabama, a 5-4 decision where Justice O’Connor was the
swing vote, the Court held that the Eleventh Amendment bars suits to recover monetary
damages by state employees under title I of the Americans with Disabilities Act (ADA).
Garrett involved two consolidated cases brought by separate Alabama employees. One
of the employees, Patricia Garrett, had been undergoing treatment for breast cancer when,
she alleged, she was transferred to a lesser position after having been told that her
supervisor did not like sick people. The second plaintiff, Milton Ash, alleged that the
Alabama Department of Human Services did not enforce its non-smoking policy and that,
therefore, he was not able to control his asthma. The Eleventh Circuit held that the state
was not immune from suits for damages. The Supreme Court reversed stating that
“Congress is the final authority as to desirable public policy, but in order to authorize
private individuals to recover money damages against the States, there must be a pattern
of discrimination by the States which violates the Fourteenth Amendment, and the remedy
imposed by Congress must be congruent and proportional to the targeted violation. Those
requirements are not met here....”15
In Tennessee v. Lane, another 5-4 decision where Justice O’Connor was the swing
vote, the Supreme Court retreated somewhat from its recent approaches to the application
10 42 U.S.C. §12101(b)(4). The Commerce Clause would not be sufficient authority on which to
abrogate state sovereign immunity since the Supreme Court’s decision in Seminole Tribe of
Florida v. Florida, 517 U.S. 44 (1996).
11 42 U.S.C. §12202.
12 Title I of the ADA prohibits discrimination against a qualified individual with a disability in
employment. 42 U.S.C. §12111 et seq.
13 Title II of the ADA prohibits discrimination by a state or local government. 42 U.S.C. §12131
et seq.
14 It should be noted that the Eleventh Amendment applies only to states, not municipalities. See
e.g., Ability Center of Greater Toledo v. City of Sandusky, 385 F.3d 901 (6th Cir. 2004).
15 Id. at 374.
of the Eleventh Amendment, holding that Title II of the ADA, as it applies to the
fundamental right of access to the courts, constitutes a valid exercise of congressional
authority under section 5 of the Fourteenth Amendment.16 Lane was an action brought
by George Lane and Beverly Jones, both paraplegics who use wheelchairs for mobility,
against the state of Tennessee. Mr. Lane alleged that he was compelled to appear in court
to answer criminal charges and had to crawl up two flights of stairs to get to the court
room. Ms. Jones, a certified court reporter, alleged that she was been unable to gain
access to a number of county courthouses, thus losing employment opportunities. The
Court noted that when analyzing an Eleventh Amendment immunity issue, first the issue
of whether Congress unequivocally expressed its intent to abrogate must be resolved. The
ADA specifically provides for abrogation17 so the Court then applied the test set out in
City of Boerne v. Flores,18 which found that legislation enacted pursuant to section 5 of
the Fourteenth Amendment is valid if it had “a congruence and proportionality between
the injury to be prevented or remedied and the means adopted to that end.”19
Justice Stevens’ opinion found that title II of the ADA, like title I, sought to prohibit
irrational discrimination but noted that title II also sought to enforce a variety of basic
constitutional guarantees, including the right of access to the courts. Noting the pattern
of disability discrimination that led to the enactment of the ADA, and the “sheer volume
of evidence demonstrating the nature and extent of unconstitutional discrimination against
persons with disabilities in the provision of public services,” the Court held that the
inadequate provisions of public services and access to public facilities was an appropriate
subject for remedial prophylactic legislation. The final issue was whether title II was an
appropriate response to this history and pattern of discrimination. Although the Court had
been urged to consider the entire sweep of title II, Justice Stevens declined to broaden the
ruling beyond the issue of the accessibility of judicial services. The Court held that the
remedies were congruent and proportional to the goal of enforcing the right of access to
the courts and emphasized that title II of the ADA requires only “reasonable
modifications” that would not fundamentally alter the nature of the service provided and
that do not impose an undue financial or administrative burden, or threaten historic
preservation interests. Thus, the Court concluded, title II “as it applies to the class of
cases implicating the fundamental right of access to the courts, constitutes a valid exercise
of Congress’ section 5 authority to enforce the guarantees of the Fourteenth Amendment.”
Tennessee v. Lane did not settle all the issues regarding when Congress may use
section 5 of the Fourteenth to abrogate the Eleventh Amendment; on its face, it limited
its holding to access to courts. Currently pending before the Court, and scheduled for oral
argument November 9, 2005, are the consolidated cases of United States v. Georgia and
16 The Court has upheld the Family and Medical Leave Act, 29 U.S.C. §2601 et seq., as a valid
exercise of congressional power pursuant to section 5 of the Fourteenth Amendment. Nevada
Department of Human Resources v. Hibbs, 538 U.S. 721 (2003). The majority opinion for this
17 42 U.S.C. §12202.
18 521 U.S. 507 (1997).
19 Id. at 520.
Goodman v. Georgia20 which raise the issue of whether Congress has validly abrogated
state immunity from damage suits under title II of the ADA in situations involving
accommodations for prisoners with disabilities. Whether the reasoning of Tennessee v.
Lane will be found to be applicable in the context of prisons or whether the Court will
continue its previous trend of deference to states is unclear but what is certain is the fact
that the loss of Justice O’Connor’s pivotal vote makes the Court’s direction even less
certain.21
Other ADA Decisions
In Sutton v. United Airlines, 527 U.S. 471 (1999), Justice O’Connor wrote the
decision for the Court which limited the definition of disability. Since being defined as
a person with a disability is a threshold issue in any ADA complaint, the Sutton holding
that “the determination of whether an individual is disabled should be made with
reference to measures that mitigate the individual’s impairment....”22 was an interpretation
with important ramifications. This decision limited who would be considered to be a
person with a disability thus decreasing the number of potentially successful suits.23
Similarly, in Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002), Justice
O’Connor penned the Court’s unanimous decision, holding that to be an individual with
a disability under the ADA, an individual must have substantial limitations that are central
to daily life, not just limited to a particular job.
In U.S. Airways v. Barnett, 535 U.S. 391 (2002), Justice O’Connor was again with
the majority in 5-4 decision concerning reasonable accommodations under the ADA. In
Barnett the Court held that an employer’s showing that a requested accommodation by
an employee with a disability conflicts with the rules of a seniority system is ordinarily
sufficient to establish that the requested accommodation is not “reasonable” within the
meaning of the ADA. Thus, the times when an employer must provide reasonable
accommodation were limited. In her separate concurrence, Justice O’Connor stated that
she would prefer to say that the effect of a seniority system on the ADA depends on
whether the seniority system is legally enforceable but that since the result would be the
same in most cases as under the majority’s reasoning, she joined with the majority to
prevent a stalemate.
However, in the landmark case of Olmstead v. Georgia, Justice O’Connor voted with
the majority in a 6-3 decision widely heralded as an important expansion of the rights of
individuals with disabilities. Olmstead held that title II of the ADA requires states to
place individuals with mental disabilities in community settings rather than institutions.
20 120 Fed. Appx. 785 (2004), cert. granted, 161 L.Ed.2d 1052; 1255 S.Ct. 2256; 73 U.S.L.W.
21 For a discussion of this issue see Tony Mauro, “An Early Crucible,” The Legal Times (Aug.
22 527 U.S. 471, 475 (1999). See also Murphy v. United Parcel Service, Inc., 527 U.S. 516
(1999), where the mitigating measure at issue was high blood pressure medication. Justice
O’Connor also authored this decision.
23 See National Council on Disability, Righting the ADA (Dec. 1, 2004), which called for
legislation to change the result of this definitional interpretation.
However, there were certain limitations imposed on this right: the state’s treatment
professionals have to determine that community placement is appropriate, community
placement cannot be opposed by the individual with a disability, and the placement must
be reasonably accommodated. Nonetheless, the Olmstead decision has been a significant
factor in the movement toward community based services for individuals with
disabilities.24
24 See “Long-Term Care: Implications of Supreme Court’s Olmstead Decision Are Still
Unfolding,” GAO-01-1167T (September 24, 2001).