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States May Be Liable For Damages For Violations Of Title II Of Americans With Disabilities Act


On January 10, the United States Supreme Court held that in certain circumstances state governments may be liable for damages to individuals for violations of Title II of the Americans with Disabilities Act (ADA).  (United States v. Georgia, No. 04-1203.)  The Court held that the provision in the ADA denying sovereign immunity to the states "for a violation of this chapter" is valid, at least where the violation of the ADA would also be a violation of some provision of the U.S. Constitution.  This decision is of importance in California beyond agencies that are traditionally considered state agencies, because some local agencies and districts are also considered agencies of the state.  (E.g., Belanger v. Madera Unified School District, 963 F. 2nd 248 (9th Cir. 1992), holding that local school districts are agencies of the State of California.)

In United States v. Georgia,  a Georgia state prisoner who is paraplegic sued for damages for violation of the Eighth Amendment (cruel and unusual punishment) and the ADA, because, among other things, he could not move his wheelchair within the confines of his cell, was unable to use the toilet without assistance and had been forced to sit in his own feces and urine, because assistance was denied.  The district court dismissed the prisoner’s lawsuit, holding among other things that he could not sue the state for monetary damages under the ADA.  The  Court of Appeals reinstated the suit in part but affirmed the dismissal of the ADA claims against the state.  The Supreme Court reversed and reinstated the ADA claims.

The Court’s reasoning was closely limited to the circumstance that in this case the ADA claims were basically the same as the Eighth Amendment claims.  The Court noted that the Eighth Amendment is incorporated in the Fourteenth Amendment, which provides that the states may not deprive their citizens of due process of law and that cruel and unusual punishment is a subset of due process.  Further, the Fourteenth Amendment gives Congress the power to enforce its provisions.  Hence, the Court held that the provision in the ADA holding states liable for violations of the ADA is valid if those violations also violate the Eighth Amendment, as alleged here.  While the Court did not go beyond that limited holding in this case, it suggested that there are other constitutional violations  which could also be violations of the ADA.  The Court also did not foreclose the possibility that "Congress’s purported abrogation of sovereign immunity…is valid" even if a violation of the ADA is not also a violation of the Fourteenth Amendment.  That question was left open for a later case.

It should be noted that Title II, unlike other provisions of the ADA, is directed to governmental discrimination against the disabled by making it a violation of the law to exclude a qualified individual with a disability from the services, programs or activities of a public entity.  (The Court noted that it had already held that prison services are included within the scope of Title II.)  Before United States v. Georgia most state agencies probably considered that they could only be sued for injunctive relief under the ADA.  That is no longer a valid assumption, and disabled plaintiffs are entitled to seek damages for violations under certain circumstances.  This means that state agencies, including school districts in California, must re-examine their policies and practices regarding disabled access to a wide panoply of facilities, services and activities, unless they get hit in the pocketbook for neglect in this area.

John Hansen, a Partner in Nossaman’s San Francisco office, specializes in disability law under the ADA and California’s Fair Employment and Housing Act and can be reached at

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