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Published: Thursday, 11/10/2005

Disabilities act applies to prisoners, inmate in wheelchair argues

BY MICHAEL McGOUGH
BLADE WASHINGTON BUREAU

He's denied activities others have, Supreme Court is told

With support from the Bush Administration, a paraplegic prisoner from Georgia yesterday urged the U.S. Supreme Court to allow disabled inmates to sue states for damages under the Americans with Disabilities Act.

The outcome of the case could show whether Chief Justice John Roberts shares the state's rights view of his predecessor, William H. Rehnquist, who led a "federalist revolution" on the court that recently has stalled.

Tony Goodman, an inmate who uses a wheelchair, filed suit against the Georgia prison system under Title II of the ADA, claiming that because of his disability he is excluded from activities available to other prisoners, including religious and educational services, and kept in a cell so small that he can't turn his wheelchair around or keep himself clean without assistance.

Lower federal courts ruled that Mr. Goodman's suit could not go forward because Congress in enacting the ADA did not override Georgia's sovereign immunity to prisoner lawsuits under the 11th Amendment.

Under a controversial 1997 Supreme Court decision known as City of Boerne v. Flores, Congress can abrogate a state's sovereign immunity only when it satisfies the court that there is "congruence and proportionality" between a state's violation of the Fourteenth Amendment, which guarantees "equal protection of the laws," and the legal remedy created by Congress.

U.S. Solicitor General Paul D. Clement said there was such a fit in applying the ADA to prison conditions. He reminded the justices that they ruled last year in a case, Tennessee v. Lane that a disabled criminal defendant could sue the state under the ADA because a county courthouse wasn't wheelchair-accessible.

But Gregory A. Castanias, a lawyer for Georgia, told the court that "this case is not anything like [the courthouse situation]. It doesn't involve an important civic right of access to court proceedings or voting booths."

Noting that Mr. Goodman had complained the prison television lounge wasn't accessible to wheelchairs, Mr. Castanias said: "That was never a constitutional right before the ADA."

Mr. Clement countered that the ADA required only "reasonable accommodation" to a disabled person's needs and that, in light of federal law and other Supreme Court decisions giving broads deference to prison administrators, the court could rule for Mr. Clement on his more serious claims without guaranteeing him a right to TV.

Mr. Clement and Samuel R. Bagenstos, Mr. Goodman's lawyer, told the court that prisoners should be allowed to sue states under the ADA because the Constitution itself imposes a requirement on prisons that they treat inmates humanely.

That argument moved Chief Justice Roberts to comment that Mr. Goodman and the Bush Administration seemed to be saying the ADA offered disabled prisoners "just a little bit extra" in addition to the protections of the Constitution. That conflicted, he suggested, with the impression the ADA made major changes in the law.

In 2001 the high court ruled 5-4 in an opinion by the late Justice Rehnquist that a state university couldn't be sued under the job-discrimination provisions of the ADA because Congress had not compiled a pervasive record of pervasive discrimination against the disabled by public employers.

But last year, in Tennessee v. Lane, a different 5-4 majority held that Congress had relied on "a long history of unequal treatment of disabled persons in the administration of the justice system." The only justice who was in the majority in both cases was Justice Sandra Day O'Connor.

If Judge Samuel A. Alito is confirmed in January as her successor, it is unlikely that Justice O'Connor will still be on the court when this case is decided.

That probably means the four other justices in the Tennessee v. Lane majority - Justices Stephen Breyer, David H. Souter, John Paul Stevens and Ruth Bader Ginsburg - would need the support of either Judge Alito or Chief Justice Roberts to uphold the right of prisoners to sue under the ADA.

Justice Breyer used his questions yesterday to suggest a middle ground on which the court might rule that disabled prisoners could sue "where there's a really serious problem."

Contact Michael McGough at:

mmcgough@nationalpress.com

or 202-662-7025.



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