Goodman and United States v. Georgia: The Supreme Court 

Hears Another Case Challenging the Constitutionality of Title 

II of the Americans with Disabilities Act 

National Council on Disability 

1331 F Street, NW, Suite 850 

Washington, DC 20004 

202-272-2004 Voice 

202-272-2074 TTY 

202-272-2022 Fax 

Lex Frieden, Chairperson 

November 8, 2005 

Abstract

On November 9, 2005, the United States Supreme Court will hear oral arguments 

in Goodman v. Georgia, No. 04-1236. The Goodman case will determine whether 

Congress acted within its power under the Fourteenth Amendment to apply Title II of the 

Americans with Disabilities Act (ADA) to state prisons, jails, and other correctional 

facilities. This paper provides an overview of how the Goodman case fits into the larger 

context of federalism challenges to Congress’s power to enact various parts of the ADA 

as well as other civil rights laws. It then examines the Goodman case in detail and 

concludes that Congress had ample authority to apply Title II to correctional facilities. 

Congress acted based on a long history of unconstitutional treatment of inmates with 

disabilities, including myriad forms of cruel and unusual punishment. In light of this 

disturbing record and the limited remedies that Congress put in place in Title II of the 

ADA, Title II’s requirements are an appropriate way to remedy and prevent further 

unconstitutional treatment in this context. 

The importance of Goodman extends beyond the question of whether Congress 

acted within its power under the Fourteenth Amendment. States have challenged 

Congress’s power to enact parts of the ADA on multiple fronts, sometimes arguing that 

certain applications of the ADA are simply invalid because Congress lacks any authority 

to pass these applications. Thus, Goodman presents the opportunity for the Supreme 

Court to establish that correctional facilities have an obligation to comply with Title II of 

the ADA. Additionally, the case may have a significant impact on how courts view the 

constitutionality of other applications of Title II. In light of the extraordinary record of 

discrimination that Congress attempted to address in the ADA, it is critical that the 

ADA’s protections be upheld. 

I. Introduction
2

 This paper discusses the significance of the latest case to be considered by the 

United States Supreme Court concerning Congress’s power to enact the Americans with 

Disabilities Act (ADA), Goodman v. Georgia.

1

 In Goodman, the Court will decide 

whether Congress acted within its authority under the Fourteenth Amendment in applying 

the ADA to state prisons. This is the third time that the issue of Congress’s power to 

enact portions of the ADA has reached the Supreme Court, and it is not likely to be the 

last time. What the Court says in Goodman will determine whether the remedies of Title 

II of the ADA may be enforced against state prisons, jails, and other correctional 

facilities. More broadly, it may have a significant impact on the viability of claims under 

Title II of the ADA involving a variety of other issues as well. 

 It is NCD’s position that Congress acted well within its authority in applying the 

ADA to prisons and jails. Congress acted based on a long and appalling history of 

discrimination against individuals with disabilities in correctional facilities. In fact, the 

discrimination experienced by people with disabilities at the hands of state and local 

correctional officials includes some of the most egregious conduct to which people with 

disabilities have been subjected in any context. 

In prisons and jails, “the government’s power is at its apex”2 and consequently the 

Constitution imposes affirmative obligations on states to ensure that the medical and 

mental health needs of inmates with disabilities are met, and that they have access to 

correctional programs and services. Yet the record that was before Congress when it 

passed the ADA, and that continues to the present day, shows that states have frequently 

shown deliberate indifference to the needs of inmates with disabilities, failed to make 

simple accommodations that would allow these individuals to use the basic amenities 

such as toilet facilities and showers, failed to provide needed mental health services to 

inmates with psychiatric disabilities, and failed to protect inmates who have been targeted 

for abuse because of their disabilities. In some cases, state officials have themselves 

targeted inmates with disabilities for abuse. In one case, prison guards repeatedly taunted 

inmates with paraplegia, assaulted them with a knife, and called one of them a “crippled 

bastard” who “should be dead.”3

 States’ treatment of inmates with disabilities has 

frequently resulted in severe injuries and broken bones, humiliation, extreme mental 

anguish, and even suicide. In light of this history, the ability to use the ADA to enforce 

the rights of inmates with disabilities to equal treatment and reasonable modifications is 

absolutely critical. 

This paper discusses the basis for Congress’s application of the ADA’s 

requirements to state and local correctional facilities as well as the broader implications 

of the Goodman case for the rights of people with disabilities. The paper provides an 

overview of how the Goodman case fits into the larger context of federalism arguments 

and constitutional challenges to the ADA, a description of the Goodman case, an analysis 

of Congress’s power to apply Title II of the ADA to state correctional facilities, and a 

discussion of the potential implications that a decision in Goodman may have for the 

future of the ADA. 
3

NCD previously published papers discussing the implications of the Supreme 

Court’s two previous cases concerning Congress’s power to enact portions of the ADA. 

The Americans with Disabilities Act: The Implications of the Supreme Court’s Decision 

in Board of Trustees of the University of Alabama v. Garrett (Feb. 26, 2003), was part of 

a series of policy briefs entitled Righting the ADA. It is available at 

http://www.ncd.gov/newsroom/publications/2003/alvgarrett.htm. Tennessee v. Lane: The 

Legal Issues and the Implications for People with Disabilities (Sept. 4, 2003) is available 

at http://www.ncd.gov/newsroom/publications/2003/legalissues.htm. Also relevant is the 

Council’s recent paper, The Civil Rights of Institutionalized Persons Act: Has It Fulfilled 

Its Promise? (Aug. 8, 2005), available at 

http://www.ncd.gov/newsroom/publications/2005/personsact.htm 

II. Background

 The issue of Congress’s power to enact the ADA has become increasingly 

important over the last several years, as states have routinely argued that Congress 

exceeded its authority in enacting various applications of the ADA. These challenges 

have been raised primarily by state entities trying to assert their sovereign immunity to 

ADA claims. Because the Supreme Court has said that Congress can only take away a 

state’s sovereign immunity through its power to legislate under Section 5 of the 

Fourteenth Amendment,4

 states have argued that Congress lacks the authority to enact 

portions of the ADA under the Fourteenth Amendment, and thus lacks the authority to 

take away their sovereign immunity. States’ assertions of sovereign immunity are 

designed primarily to prevent damage suits, since state officials may be sued for 

prospective injunctive relief despite a state’s sovereign immunity. 

Nonetheless, the challenges to Congress’s Fourteenth Amendment power to enact 

the ADA have far greater significance than simply the availability of damage claims 

against states. The Fourteenth Amendment is one of the two sources of authority that 

Congress invoked when it passed the ADA.5 If portions of the ADA are found to be 

invalid Fourteenth Amendment legislation, the remaining source of Congress’s authority 

to enact these provisions is its power to regulate interstate commerce. If a court were to 

conclude that an application of the ADA is not authorized by Congress’s Fourteenth 

Amendment power or its commerce power, that application would not be valid. This is 

particularly important in the area of correctional facilities, as states have challenged 

Congress’s use of its commerce power in ADA Title II cases involving state prisons far 

more frequently than in any other type of ADA case. 

Occasionally, courts have invalidated portions of the ADA altogether based on a 

conclusion that neither of the powers invoked by Congress authorized those portions of 

the ADA. For example, in Klingler v. Director, Department of Revenue,

6

 the Eighth 

Circuit invalidated the ADA's application to handicapped parking placard surcharges. It 

ruled that Congress lacked commerce authority for this application of Title II. Because 

the Eighth Circuit had previously held that Title II was not valid Fourteenth Amendment 

legislation,7

 its decision in Klingler completely invalidated the application of Title II in 

this context. Fortunately, the Supreme Court has vacated this decision and ordered the 
4

Eighth Circuit to reconsider its ruling. In Pierce v. King,

8

 a North Carolina district court 

ruled that Title II of the ADA was completely inapplicable to state prisons because it 

went beyond both the fourteenth Amendment and commerce powers of Congress. 

As challenges to the commerce authority supporting various provisions of Title II 

of the ADA have become more common, the scope of Congress’s power to enact these 

provisions under its Fourteenth Amendment authority has become increasingly 

important.9 Thus, what is at stake in Goodman, together with possible future cases, is 

whether Title II of the ADA applies at all to state prisons, jails, and other correctional 

facilities. 

 During the confirmation hearings of Supreme Court Chief Justice John Roberts, 

Senators from both sides of the aisle repeatedly expressed frustration, anger and 

disappointment about the Supreme Court’s decisions narrowing the scope of Congress’s 

power to pass civil rights laws and second-guessing Congress’s judgment about the 

sufficiency of the massive record of disability-based discrimination compiled by 

Congress to support the need for the ADA. Senators pointed out seeming inconsistencies 

between Board of Trustees of Univ. of Alabama v. Garrett,10 where the Court ruled that 

Congress exceeded its Fourteenth Amendment authority in applying Title I of the ADA 

to the states, and Tennessee v. Lane,

11 where the Court ruled that Congress acted within 

its Fourteenth Amendment power in enacting Title II of the ADA insofar as it applies to 

access to the courts. 

After the confirmation hearings, it remained unclear how Chief Justice Roberts 

would analyze the Goodman case or other potential challenges to the ADA’s Fourteenth 

Amendment basis, but it was apparent that many members of Congress felt strongly that 

the Supreme Court had acted inappropriately in casting itself as Congress’s fact-checker 

and substituting its own judgment for that of Congress. 

With Justice O’Connor’s recent announcement of her retirement, the future of the 

ADA hangs in the balance. Justice O’Connor was the deciding vote in both Garrett and 

Lane, voting against Congress’s authority to enact Title I in Garrett and for Congress’s 

authority to enact Title II in Lane. Because of Justice O’Connor’s role as the “swing” 

voter on these issues, her views in each case have been extremely important. Her 

successor’s views on Congress’s power to enact the ADA could potentially work a 

dramatic shift in the Court’s jurisprudence in this area. 

III. Overview: The New Federalism

The challenges to the constitutionality of the ADA and other civil rights laws over 

the past decade are part of a movement sometimes called “the New Federalism” aimed at 

reducing federal power over the states. These challenges were fueled in part by a 1996 

Supreme Court decision that overruled previous precedent allowing Congress to use its 

commerce power to take away states’ sovereign immunity under the Eleventh 

Amendment.12 The result of this 1996 case was that the only means available to 

Congress to take away states’ immunity from suit was to use its power under Section 5 of 
5

the Fourteenth Amendment to pass laws that enforce the guarantees of that Amendment. 

To make matters more difficult, in 1997 the Court issued another decision that set forth a 

stringent test for determining when Congress can validly legislate under Section 5 of the 

Fourteenth Amendment.13 

Following these decisions, states began routinely challenging Congress’s 

enactment of the ADA and other laws as outside of its authority. In a series of 

“federalism” cases, the Supreme Court concluded that Congress lacked the power under 

the Fourteenth Amendment to pass a number of important civil rights laws. In Kimel v. 

Florida Bd. of Regents,

14 the Supreme Court concluded that the Age Discrimination in 

Employment Act was not a valid exercise of Congress’s power under Section 5 of the 

Fourteenth Amendment. In United States v. Morrison,

15 the Court held that Congress 

lacked authority under both Section 5 of the Fourteenth Amendment and the Commerce 

Clause to enact the civil remedies provisions of the Violence Against Women Act. In 

Board of Trustees of Univ. of Alabama v. Garrett,

16 the Court held that Title I of the 

ADA, the ADA’s employment title, was not a valid exercise of Congress’s authority 

under Section 5 of the Fourteenth Amendment. 

The Garrett case marked the first time that the Supreme Court considered the 

constitutionality of the ADA. In Garrett, the Court seemed to ignore the vast record of 

state discrimination against people with disabilities, concluding that Congress had 

assembled only “minimal evidence of unconstitutional state discrimination in 

employment against the disabled.”17 Additionally, the Court found that Title I was not 

congruent and proportional to the history of state discrimination in employment. It came 

to this conclusion based primarily on the notion that the Fourteenth Amendment’s Equal 

Protection Clause forbids disability-based discrimination in employment only where 

there is no rational basis for it, whereas Title I of the ADA forbids much more.18 For 

example, the Court believed that the Constitution would not forbid a state employer from 

acting “rationally” by conserving resources and hiring individuals who are able to use 

existing facilities rather than individuals with disabilities who would need 

accommodations. The ADA, on the other hand, requires employers to make reasonable 

accommodations for employees with disabilities unless it would be an undue hardship to 

do so.19 The ADA also bars the use of standards or criteria that have a disparate impact 

on individuals with disabilities, regardless of whether there is a rational basis for doing 

so.20 

In 2003, the Court finally issued a decision breaking from its trend of invalidating 

civil rights laws. In Nevada Dep’t of Human Resources v. Hibbs,

21 the Court concluded 

that Congress did have the power under Section 5 of the Fourteenth Amendment to enact 

the family leave provision of the Family and Medical Leave Act. That provision gave 

eligible employees the right to take up to 12 weeks of unpaid leave annually because of a 

serious health condition of a spouse, child or parent. 

The difference between the Court’s decision in Hibbs and its Garrett and Kimel

decisions turned on the fact that Hibbs involved a history of gender discrimination in 

employment leave policies by the states, and this triggered a more stringent level of 
6

review of state-based discrimination. Gender discrimination, unlike discrimination based 

on disability and age, is viewed by the courts with heightened scrutiny rather than being 

reviewed merely to determine whether there is some rational basis for it. The application 

of heightened scrutiny was important in Hibbs both because it meant that more of the 

history of discrimination was considered unconstitutional and because the Court 

considered the constitutional standard of review to be closer to the statutory requirement 

than in Garrett and Kimel. 

The Hibbs decision suggested that legislation involving areas where the courts 

apply heightened scrutiny to state actions would be more likely to be upheld. Because 

heightened scrutiny is applied not only to decisions involving race or gender, but also to 

decisions implicating fundamental rights, Title II of the ADA stands on firm ground as 

Fourteenth Amendment legislation. Unlike the employment provisions of Title I, Title II 

– which prohibits discrimination in state and local government services, programs, and 

activities - applies to many areas that implicate fundamental rights, such as access to the 

courts, voting, marriage and family rights, institutionalization, and prisoners’ rights. 

Indeed, Title II has fared better than Title I in the Supreme Court. In Tennessee v. 

Lane,

22 the Supreme Court was asked to decide whether Title II of the ADA was a valid 

exercise of Congress’s power under Section 5 of the Fourteenth Amendment in a case 

involving access to the courts.23 The Court upheld Congress’s Section 5 power, but 

limited its holding to the area of access to the courts. The primary reason Lane came out 

differently than Garrett is that the Court recognized that unlike Title I, which sought to 

enforce the guarantee of equal protection in the area of employment, Title II also sought 

to enforce “a variety of other basic constitutional guarantees, infringements of which are 

subject to more searching judicial review.”24 

Chronicling the history of state and local government discrimination25 against 

people with disabilities, the Court concluded in Lane that “Congress enacted Title II 

against a backdrop of pervasive unequal treatment in the administration of state services 

and programs, including systemic deprivations of fundamental rights.”26 While the Court 

provided an expansive analysis of the history of governmental discrimination against 

people with disabilities in many different areas, it determined that the congruence and 

proportionality analysis must be limited to the application of the ADA at issue in the case 

before the Court rather than Title II in its entirety.27 Thus, the Court considered the 

congruence and proportionality of Title II to the record of constitutional violations only 

with respect to access to courts. Based on the long history of unequal treatment of people 

with disabilities in this arena and the limited remedies of Title II, the Court found this 

application of the ADA congruent and proportional.28 

In the wake of Lane, many questions remain as to how the Court will analyze the 

Fourteenth Amendment basis for other applications of Title II. Lane contained many 

broad and helpful statements that suggest that all, or at least most, of Title II must be 

upheld as valid Fourteenth Amendment legislation. Yet by limiting its holding to the area 

at issue in Lane – access to the courts – the Court created a great deal of confusion among 

lower courts about how to apply Lane. A number of cases involving challenges to the 
7

Fourteenth Amendment basis for other types of Title II claims have been percolating in 

the federal courts. As the first such case to reach the Supreme Court following Lane, 

Goodman is likely to determine how courts will address a number of important questions 

in analyzing constitutional challenges to the ADA’s Fourteenth Amendment basis.

IV. The Case of Goodman v. Georgia

Facts 

Petitioner Tony Goodman filed this suit about his treatment at the Georgia State 

Prison in Reidsville, Georgia, where he was incarcerated from 1996 to 1999 and from 

2004 to the present.29 Goodman has paraplegia and uses a wheelchair for mobility. While 

in the prison, Goodman has been held in a cell that is so narrow (12 by 3 feet) that he 

cannot turn his wheelchair. He is confined to that cell for 23 to 24 hours each day because 

other prison facilities are not wheelchair accessible. Because the bed in his cell is 

inaccessible, he often has to sleep in his wheelchair to avoid injuring himself by 

transferring to the bed.30 

Goodman also alleges that the prison has failed to provide toilet and bathing 

facilities that are accessible to him, and that he has injured himself numerous times trying 

to transfer from his wheelchair to inaccessible toilets and showers, sometimes breaking 

bones. He was sometimes forced to sit in his own waste because he could not reach the 

toilet, and he was denied cleaning supplies and help cleaning his wheelchair and his cell. 

He was even punished for not cleaning the waste in his cell. 31

Because the showers are not accessible, Goodman has fallen and injured himself 

repeatedly while trying to transfer from his wheelchair to a shower stall seat. Goodman 

has been denied access to virtually all prison services, programs and facilities, including 

religious services and the prison law library, because of the inaccessibility of the prison’s 

facilities.32 Finally, he claims that the prison has failed to provide him adequate medical 

care, including refusing requests for medical care and failing to provide him with the 

treatment and medication prescribed by his doctors.33

The Legal Proceedings 

 Goodman filed suit pro se in the United States District Court for the Southern 

District of Georgia in 1999 against the State of Georgia, the Georgia Department of 

Corrections, and a number of Georgia prison officials. He alleged that the defendants had 

violated his Eighth Amendment right to be free of cruel and unusual punishment and 

discriminated against him on the basis of his disability in violation of Title II of the ADA. 

He sought money damages for both his constitutional and ADA claims and also sought 

injunctive relief on his ADA claim. In an unpublished opinion, the district court 

dismissed Goodman’s constitutional claims but held that his ADA claims could proceed. 

Following the Supreme Court’s decision in Garrett, the defendants filed a motion for 

summary judgment on Goodman’s ADA claims, arguing that Goodman’s ADA claim for 

money damages was barred by the Eleventh Amendment and that his ADA claim for 
8

injunctive relief was rendered moot by Goodman’s transfer from the prison. In an 

unpublished opinion, the district court granted the defendants’ motion and dismissed 

Goodman's ADA claims. 

 Goodman appealed to the Eleventh Circuit, and the United States intervened to 

defend the constitutionality of the ADA. After the Supreme Court’s decision in Lane, the 

Eleventh Circuit in an unpublished decision affirmed the dismissal of Goodman’s ADA 

claim for money damages, but allowed his constitutional claims and his claim for 

injunctive relief under the ADA to proceed. The Eleventh Circuit found that he had stated 

a claim for violation of the Eighth Amendment based on the claims that the State 

imposed some form of total restraint 23 or more hours per day without justification; that 

he was forced to sit in his own waste because no one would assist him with toileting; and 

that the State was deliberately indifferent to his serious medical conditions by failing to 

provide adequate medical treatment.34

 The Eleventh Circuit affirmed the district court’s dismissal of Goodman’s ADA 

claim for money damages on Eleventh Amendment immunity grounds. The Court relied 

on its decision in Miller v. King,

35 which was argued on the same day as Goodman and 

involved another prisoner in the same facility. In Miller, the same three-judge panel that 

decided Goodman held that Title II of the ADA, as applied to Eighth Amendment claims 

in state prisons, was not valid Fourteenth Amendment legislation.36 The Eleventh Circuit 

focused its analysis narrowly, stating that “the only right at issue in this particular case is 

Miller’s Eighth-Amendment right to be free from cruel and unusual punishment.”37 The 

Court stated that it was bound by the Supreme Court’s conclusion in Lane that Congress 

enacted Title II based on a sufficient history of constitutional violations: 

[I]n applying the second step of the Boerne test, the Supreme Court in 

Lane considered evidence of disability discrimination in the administration 

of public services and programs generally, rather than focusing only on 

discrimination in the context of access to the courts, and concluded that 

Title II in its entirety satisfies Boerne’s step-two requirement that it be 

enacted in response to a history and pattern of States’ constitutional 

violations.38 

However, the Court concluded that Title II was not an appropriate response to the history 

and pattern of unconstitutional treatment. The Court distinguished the case at hand from 

Lane, despite the documented pattern of disability discrimination in prisons, concluding 

that Title II’s requirements were too far removed from the Eighth Amendment’s 

requirements: 

Even if a documented history of disability discrimination specifically in 

the prison context justifies application of some congressional prophylactic 

legislation to state prisons, what makes this case radically different from 

Lane is the limited nature of the constitutional right at issue and how Title 

II, as applied to prisons, would substantively and materially rewrite the 

Eighth Amendment.39 
9

The Eleventh Circuit characterized the Eighth Amendment as having no effect on 

most prison services, programs and activities and as being limited to punishment, 

whereas Title II of the ADA applies to all services, programs and activities of a public 

entity. The Court thus concluded that “Title II’s affirmative duty to accommodate 

qualified, disabled prisoners is markedly different than, and cannot be said to be perfectly 

consistent with, traditional protections afforded by the Eighth Amendment” and “fails to 

meet the requirement of proportionality and congruence."40

V. The History of Discrimination Against Prisoners with Disabilities

 

 As the Supreme Court found in Tennessee v. Lane, Congress enacted the ADA 

against a backdrop of pervasive unequal treatment of people with disabilities in many 

different contexts, including in the “penal system.”41 The ADA was the culmination of 

many years of Congressional concern about, and efforts to address, discrimination against 

individuals with disabilities in prisons and jails as well as in other settings. 

CRIPA Hearings 

As early as 1971, Congress was gathering evidence about the mistreatment of 

state prisoners, including prisoners with disabilities. In a series of hearings about state 

prison conditions in 1971 and 1972, Congress considered evidence about an inmate with 

paralysis who was unable to take showers or use the sink in his cell, and was denied the 

right to use a wash basin; about a prison’s failure to move a suicidal inmate from an 

unsafe cell, resulting in the inmate taking his own life; and about a prison’s failure to 

make dietary accommodations for inmates with diabetes.42

In 1980, Congress passed the Civil Rights of Institutionalized Persons Act 

(CRIPA) in order to address widespread violations of the rights of individuals in prisons, 

jails and other institutions. The law authorized the Department of Justice to bring suits to 

enforce the constitutional and statutory rights of individuals in state institutions.43 The 

hearings held by Congress before the passage of CRIPA brought to light extensive 

violations of the constitutional rights of individuals with disabilities in prisons and jails. 

For example, Congress heard testimony about an inmate who used a wheelchair and was 

placed in an inaccessible cell that he could not leave for years, an inmate with 

quadriplegia who developed bedsores infested with maggots due to the facility’s failure 

to bathe him, and inmates who had to wait months or years for prosthetic devices.44 An 

inmate who was partially incontinent due to a stroke was forced to sit day after day on a 

wooden bench beside his bed in order to keep the bed clean, even though he frequently 

fell from the bench and his legs became blue and swollen. One leg was eventually 

amputated and the inmate died the following day.45 The CRIPA hearings also revealed 

that inmates with mental and physical disabilities were frequently subjected to physical 

abuse by officers and other inmates, and were sometimes raped.46 Jailers took away 

inmates’ wheelchairs as a form of punishment.47
10

During the CRIPA hearings, Congress heard testimony that prison inmates with 

psychiatric disabilities were deliberately given inadequate food that was different from 

the food given to other inmates, because the corrections officials believed that “mental 

cases don’t know what they eat anyway.”48 Additionally, the CRIPA hearings contained 

extensive testimony that states had failed to provide inmates with psychiatric disabilities 

with basic mental health treatment required by the Constitution.49 Congress heard about 

court findings in Alabama that inmates received constitutionally inadequate care where 

one psychologist working one afternoon per week treated 2400 inmates with mental 

retardation or mental illness, where psychotic inmates who became violent were left 

unattended in lockup cells unequipped with padding or restraints, and where “the large 

majority of mentally disturbed prisoners receive no treatment whatsoever.”50

Congress also heard about repeated instances of bedridden inmates receiving no 

medical treatment, living in substandard and filthy conditions with rats; inmates with 

draining bedsores; inmates with urinary tract infections due to their catheters not being 

changed for weeks; untrained inmates being allowed to provide medical treatment to 

other inmates; an inmate with a mental disability confined for weeks in a 7 foot by 5 foot 

cell with a room temperature of 102 degrees and no air movement, sleeping on floors 

soaked with urine and feces; and overtly psychotic inmates housed without treatment or 

supervision in dimly lit, unventilated and filthy 5 foot by 8 foot cells 24 hours a day.51

Reports 

A 1983 report of the United States Commission on Civil Rights detailed a long 

history of discrimination against individuals with disabilities, including discrimination 

occuring in prisons and jails. This history continued after the enactment of CRIPA. The 

Commission noted, for example, that many penal facilities had inadequate ability to deal 

with accused persons and convicts with physical disabilities because they lacked 

adaptations such as accessible jail cells and toilet facilities.52 Additionally, it highlighted 

abuse of inmates with disabilities by other inmates, and inadequate treatment and 

rehabilitation programs.53 Congress referenced the Civil Rights Commission report 

throughout the legislative history of the ADA. 

Other reports also documented the history of unconstitutional discrimination 

against individuals with disabilities in jails and prisons. A report of the California 

Attorney General’s Commission on Disability discussed an incident in which a parole 

agent sent a man who used a wheelchair back to prison because he did not show up for 

his appointments since he was unable to obtain accessible transportation.54 The report 

also noted instances of police officers removing individuals “unsafely from their 

wheelchairs to transport them to jail.”55 A Kentucky report stated that “Kentucky 

Corrections offers no appropriate treatment to the retarded and subjects them to varied 

institutional abuse,” and documented problems dealing with inmates with mental 

retardation in more than half of the states.56 A study of inmates in the Chicago area noted 

that while the courts mandate that jails conduct routine mental health evaluations, given 

the immediate needs of inmates with mental illnesses, many jails do not do so.57
11

Task Force on Rights and Empowerment of Americans with Disabilities 

Widespread unconstitutional discrimination against prisoners with disabilities was 

also reported by a Task Force on the Rights and Empowerment of Americans with 

Disabilities appointed in 1988 by the chair of the House Subcommittee on Select 

Education and Civil Rights. The Task Force gathered information from every state 

concerning the proposed legislation that became the ADA. It heard numerous accounts of 

discrimination against people with disabilities in state programs and services, including 

jails and prisons. For example, the Task Force heard about inmates with developmental 

disabilities being subjected to longer prison terms and being placed in settings where they 

were particularly vulnerable to abuse by other inmates, inmates with disabilities being 

denied needed medical and psychiatric treatment, police arresting and jailing deaf 

individuals without providing interpreter services, state prisons failing to provide 

telecommunications services for deaf inmates, over half of inmates in solitary 

confinement having serious mental illness, and an inmate with serious mental illness 

being kept in solitary confinement for a total of 35 years.58

ADA Hearings 

Congress also heard testimony about unconstitutional treatment of prisoners with 

disabilities during hearings concerning the passage of the ADA. The House Judiciary 

Committee’s report on the ADA observed that people with epilepsy and other disabilities 

are frequently deprived of medications while in jail, resulting in seizures.59 Testimony at 

the hearings on the ADA revealed that adults with traumatic brain injury are often jailed 

based on aberrant behavior caused by their disability, that jail inmates who were deaf or 

hard-of-hearing were denied interpreters and could not understand their rights, and that 

jail inmates with HIV were isolated without reason and humiliated by corrections officers 

– including an inmate with HIV being forced to spend the night in a car in an open 

parking lot which attracted onlookers who stared and pointed.60 

Caselaw 

 In addition to all of the other evidence before Congress when it applied the ADA 

to prisons and jails, Congress acted based on an extraordinarily massive record of 

caselaw finding unconstitutional treatment of prison and jail inmates with disabilities. 

Many of these cases generated specific court findings of violations of these individuals’ 

constitutional rights. This record of caselaw began long before the ADA was passed, and 

unconstitutional discrimination continues to the present. 

 Many courts have found violations of the Eighth Amendment rights of inmates 

with disabilities based on their confinement in cells that are not accessible to individuals 

who use wheelchairs, making them unable to move around in the cells; based on the 

refusal to provide accessible facilities such as toilets and showers; based on the denial of 

needed medical or psychiatric care; based on the refusal to provide interpreters; based on 

the failure to ensure that inmates with disabilities receive appropriate medical care; based 

on the failure to protect inmates with disabilities from harm by other inmates, by suicide, 
12

or by poor conditions that aggravated inmates’ disabilities; and based on abuse 

specifically targeted at inmates with disabilities. Courts have also found violations of the 

Due Process and First Amendment rights of inmates with disabilities, including failure to 

accommodate the needs of inmates with disabilities in disciplinary hearings and denial of 

access to prison law libraries based on disability. 

 We detail here only a small sampling of the cases involving unconstitutional 

treatment of individuals with disabilities in the penal system. In Parrish v. Johnson, 800 

F.2d 600 (6th Cir. 1986), two inmates who were paraplegic were forced to sit in their own 

feces for hours, putting one of them at risk of infection of his decubitous ulcers; were 

denied supplies to clean themselves; were assaulted multiple times by a prison guard with 

a knife; were taunted by the guard and told he had contaminated their food; had their food 

placed out of reach by the guard; had private phone conversations interrupted by a guard 

shouting obscenities; and had food extorted at knifepoint by the guard. The prison guard 

called one of the prisoners a “crippled bastard” and told him he should be dead. Id. at 

602-03. In Lafaut v. Smith, 834 F.2d 389, 392 (4th Cir. 1987), a prisoner who used a 

wheelchair was denied adequate toilet facilities, and had to drag his body across the floor 

and pull himself up onto the commode in order to use it. He would often slip into the 

commode, and one time fell off the toilet and broke his leg. Id. at 392-93. The inmate was 

forced to rely on a catheter because of these conditions, and developed a kidney infection. 

The prison could have assisted the inmate by simply installing a grab bar, but instead 

took no action for months. Id. 

In Owens-El v. Robinson, 442 F. Supp. 1368, 1380 (W.D. Pa. 1978), inmates with 

epilepsy who experienced seizures and inmates with severe mental disorders were 

routinely and inappropriately shackled to cots while naked or in hospital gowns, and 

some were held in these restraints for as long as 29 days. In Durham v. Nu’Man, 97 F.3d 

862, 866 (6th Cir. 1996), an inmate who was mentally ill was restrained by shackles and 

was refused access to a bathroom and then beaten for ten minutes and had his arm broken 

by two guards after he refused to clean up his urine from the floor. In Ramos v. Lamm, 

485 F. Supp. 122, 142 (D. Colo. 1979), aff’d in relevant part, 639 F.2d 559 (10th Cir. 

1980), the court found that the “emergency situation” for prisoners with mental health 

needs in a maximum security prison constituted a “time bomb ready to explode.” The 

prison’s psychology department had been abolished, and acutely psychotic inmates, 

suicidal inmates, inmates on psychotropic medication, and inmates with [intellectual 

disabilities] were housed in the most restrictive cellhouse along with prisoners in 

administrative and punitive segregation being punished for disciplinary violations. Id. at 

144-45. Prisoners in that cellhouse were locked for more than 22 hours each day in small 

cells that were filthy, inadequately lighted, improperly ventilated and infested with 

vermin and rodents. Id. at 138, 145. In Littlefield v. Deland, 641 F.3d 729, 730-32 (10th

Cir. 1981), an inmate with mental illness was confined for 56 days, without notice or 

opportunity to be heard, in a cell with no windows, no interior lights, no bunk, no floor 

covering, no toilet except for a hole in the floor, no personal hygiene articles, no access to 

reading materials, and frequently with no clothing or bedding material. In Nolley v. 

County of Erie, 776 F. Supp. 715, 717-18, 732-33 (W.D.N.Y. 1991), a prison 

automatically segregated all HIV-positive inmates, denied them access to the law library 
13

and religious services, and identified them by placing red stickers on their personal items 

and documents. 

 Numerous other cases finding unconstitutional discrimination against inmates 

with disabilities are detailed in the various briefs filed with the Supreme Court in support 

of the plaintiff in Goodman.

61 Additionally, the United States attached to its brief in 

Goodman addenda detailing findings of unconstitutional treatment of inmates with 

disabilities in some of its CRIPA investigations, as well as a summary of settlements of 

the Disability Rights Section of the Civil Rights Division of the Department of Justice in 

cases involving correctional institutions.62 From 1980 until the filing of its brief in 

Goodman, the Department of Justice had found unconstitutional conditions in 88 

different correctional facilities in 33 states and two United States territories.63

The Plight of Prisoners with Mental Disabilities 

Individuals with mental disabilities face particularly troubling issues in the 

criminal justice system. These individuals frequently find themselves in jail or prison as a 

result of their mental disability.64 While these individuals are not unusually likely to 

commit criminal acts, factors such as chronic underfunding of community mental health 

and mental retardation systems and the unavailability of needed services have contributed 

to the placement of individuals with mental disabilities in the criminal justice system.65 

Law enforcement officers have frequently responded to individuals with mental 

disabilities who violate minor criminal legislation with criminal charges rather than 

diversion to mental health services.66 In recent years, it has been widely noted that 

prisons and jails have effectively become a large part of the mental health system.67 

Once people with mental disabilities are incarcerated, prison conditions can lead 

to a substantial worsening of the symptoms of prisoners with mental illness and to 

deterioration of the skills of prisoners with mental retardation.68 Inmates with mental 

disabilities are particularly likely to suffer from certain types of mistreatment in 

correctional facilities, including the failure to provide them with needed mental health 

treatment or habilitation, failure to protect them from abuses by predatory inmates,69 and 

placement in administrative segregation due to their mental disabilities.70 Inmates with 

mental illness may have an increased risk of suicide, and are frequently at increased risk 

of becoming a victim and of decompensation and deterioration.71 The practice of 

routinely placing these individuals in administrative segregation may further exacerbate 

symptoms for inmates with mental illnesses.72 

VI. The Constitutional Rights At Issue

In determining whether a law is valid Fourteenth Amendment legislation, the 

Supreme Court has first identified the constitutional rights that Congress sought to 

enforce when it enacted the law.73 The devastating record of unconstitutional treatment 

of individuals with disabilities in the correctional system shows that Congress was 

addressing a variety of constitutional concerns when it applied the ADA to correctional 

facilities. In addition to the prohibition on irrational discrimination in the Equal 
14

Protection Clause, Congress was addressing a number of other constitutional rights 

triggering greater scrutiny, including the Eighth Amendment right against cruel and 

unusual punishment, the right to Due Process, and First Amendment rights. 

 These various constitutional protections require accommodation of inmates with 

disabilities because of the state’s control over inmates and their environment. The state 

has affirmative constitutional obligations for the safety and general well-being of 

prisoners due to the state’s absolute control over prisoners and their dependence on the 

state for their basic needs.74 For example, the Eighth Amendment’s prohibition on cruel 

and unusual punishment, which has been incorporated through the Fourteenth 

Amendment, imposes affirmative obligations on the state. The Supreme Court has held 

that the Eighth Amendment requires state prisons to provide humane conditions of 

confinement. See, e.g., Farmer v. Brennan, 511 U.S. 825, 832 (1994). “[P]rison officials 

must ensure that inmates receive adequate food, clothing, shelter, and medical care, and 

must 'take reasonable measures to guarantee the safety of the inmates.'” Id. In particular, 

the Eighth Amendment forbids states to act with “deliberate indifference” to the serious 

medical needs of prisoners. Estelle v. Gamble, 429 U.S. 97, 104 (1976). For jail inmates, 

the Due Process Clause provides at least as much protection as the Eighth Amendment 

provides to convicted prisoners. See, e.g., City of Revere v. Massachusetts General 

Hospital, 463 U.S. 239, 244 (1983). 

Numerous courts have concluded that the Eighth Amendment requires states to 

make accommodations for prisoners with disabilities. See, e.g., LaFaut v. Smith, 834 F.3d 

at 394 (prison officials act with deliberate indifference in violation of the Eighth 

Amendment when they “ignore the basic needs of a handicapped individual or postpone 

addressing those needs out of mere convenience or apathy”); Simmons v. Cook, 154 F.3d 

805, 807-08 (8th Cir. 1998) (placing inmates with paraplegia in inaccessible cells without 

accessible toilet violated Eighth Amendment); Weeks v. Chaboudy, 984 F.2d 185, 187 

(6th Cir. 1993) (refusal to provide wheelchair to inmate with paralysis, leaving him unable 

to shower independently or leave his cell, violated Eighth Amendment); Leach v. Shelby 

County Sheriff, 891 F.2d 1241, 1243 (6th Cir. 1989) (failure to bathe paraplegic inmate 

for several days, forcing him to remain in his own urine for long periods of time due to 

inadequate catheter supplies, and inadequate aid for his bowel training needs violated 

Eighth Amendment); Beckford v. Irvin, 49 F. Supp.2d 170, 180 (W.D.N.Y. 1999) 

(depriving inmate of use of his wheelchair for extended periods of time, leaving him 

unable to use the shower, and refusing to permit him to bathe by taking water out of his 

cell toilet or drinking fountain with a cup violated Eighth Amendment). 

Additionally, the appeals court in the Goodman case held that Goodman stated an 

Eighth Amendment claim based on his confinement in a cell too small for him to move 

his wheelchair, his being forced to sit in his own waste, the prison’s knowing failure to 

provide physical therapy and adequate medical treatment, and his exclusion from 

virtually all prison programs and activities because of his disability. 

In addition to accommodations to avoid deliberate indifference to medical needs, 

the Eighth Amendment requires states to accommodate prisoners with disabilities in 
15

order to ensure safety. “The fact that unusual accommodations may be necessary, in light 

of their special needs, to accomplish the provision of minimal conditions of incarceration 

does not absolve prison officials of their duty toward handicapped inmates.” Ruiz v. 

Estelle, 503 F. Supp. 1265, 1346 (S.D. Tex. 1980), aff’d in relevant part, 679 F.2d 1115 

(5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983). In Ruiz, the court found that the state 

had violated the Eighth Amendment by, among other things, failing to protect prisoners 

with mental retardation from abuse and physical harm by other inmates. Id. In Jacobs v. 

West Feliciana Sheriff’s Dep’t, 228 F.3d 388, 395-96 (5th Cir. 2000), the court held that 

placement of a suicidal jail inmate in a cell with a significant blind spot and points from 

which she could hang herself, and from which a previous inmate had hung himself, was 

sufficient evidence for a jury to conclude that this was deliberate indifference. In Madrid 

v. Gomez, 889 F. Supp. 1146, 1265 (N.D. Cal. 1995), the court found that placing 

individuals with mental illness, mental retardation, or brain damage in an isolation unit 

with windowless cells violated the Eighth Amendment because these inmates were at 

“particularly high risk for suffering very serious or severe injury to their mental health” in 

light of the extreme social isolation and reduced environmental stimulation. 

Additionally, the Constitution provides inmates with First Amendment rights to 

have reasonable opportunities to practice religion, and adequate opportunities to present 

constitutional violations to the courts – for example by providing access to law libraries, 

legal assistance, or other means. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987); 

Lewis v. Casey, 518 U.S. 343 (1996). While prison regulations that are reasonably related 

to legitimate penological interests may be permissible even if they impinge on certain 

rights of inmates, states may be required to provide inmates with accommodations to 

exercise their rights in alternative ways. See, e.g., Turner v. Safley, 482 U.S. 78, 89-90 

(1987), O’Lone, 482 U.S. at 350. Finally, the Due Process Clause provides inmates with 

procedural protections when the state seeks to take certain actions, such as the 

involuntary administration of antipsychotic drugs. Washington v. Harper, 494 U.S. 210, 

222 (1990). See also Bonner v. Arizona Dep’t of Corrections, 714 F. Supp. 420, 425-26 

(D. Ariz. 1989) (inmate who was deaf and visually impaired had a constitutionally 

protected liberty interest in having the assistance of a sign language interpreter in 

disciplinary proceedings). 

VII. Title II of the ADA is Congruent and Proportional to the Record of 

 Unconstitutional Treatment of Inmates with Disabilities

 As noted above, the Supreme Court has upheld Congress’s power to pass 

legislation to enforce the Fourteenth Amendment where Congress enacts a law that is 

congruent and proportional to a history of unconstitutional conduct.75 In Lane, the Court 

concluded that Title II of the ADA was a congruent and proportional response to the 

“long history” of “unequal treatment of disabled persons in the administration of judicial 

services” that had “persisted despite several legislative efforts to remedy the problem of 

disability discrimination.”76 Title II is similarly congruent and proportional to the history 

of discrimination in state correctional facilities.77 As with the area of access to the courts, 

the record of discrimination in the area of correctional systems demonstrates a long 

history of intractable problems that have persisted despite other legislative efforts, such 

as the Civil Rights of Institutionalized Persons Act. 
16

 Moreover, Title II’s requirements closely mirror the affirmative constitutional 

obligations of states toward inmates with disabilities described above. For example, Title 

II’s prohibitions on targeting inmates for unequal treatment based on their disabilities and 

failure to make needed accommodations to inmates’ disabilities bar conduct that would 

frequently violate inmates’ constitutional rights. In light of the long and egregious record 

of unconstitutional treatment of inmates with disabilities, Title II’s imposition of 

requirements that overlap substantially with constitutional requirements makes it an 

appropriate measure to “prevent and deter unconstitutional conduct.”78

 As the Supreme Court described in Lane, Congress chose a very limited remedy 

in enacting Title II. The same limits described in Lane apply equally in this context. For 

example, “Title II does not require States to employ any and all means to make 

[correctional] services accessible to persons with disabilities, and it does not require 

States to compromise their essential eligibility criteria for public programs. It requires 

only ‘reasonable modifications’ that would not fundamentally alter the nature of the 

service provided, and only when the individual seeking modification is otherwise eligible 

for the service.”79 Additionally, the reasonable modification requirement may be 

satisfied in a number of ways. While newly constructed facilities must comply with 

specific accessibility standards, “in the case of older facilities, for which structural 

change is likely to be more difficult, a public entity may comply with Title II by adopting 

a variety of less costly measures, including relocating services to alternative, accessible 

sites and assigning aides to assist persons with disabilities in accessing services.”80 And 

covered entities are not required to undertake measures that would impose an undue 

financial or administrative burden, threaten historic preservation interests, or effect a 

fundamental alteration in the nature of the service.81 These limited requirements are 

consistent with the obligations the Constitution imposes on states with respect to inmates 

with disabilities. 

VIII. Potential Implications of a Decision in Goodman

As discussed above, the decision in the Goodman case will be critical to 

determining the future of enforcement of Title II of the ADA with respect to state 

correctional facilities. While the case concerns Congress’s Fourteenth Amendment power 

to apply Title II to state correctional facilities, its significance is broad. First, challenges 

to this application of Title II have not been limited to Congress’s Fourteenth Amendment 

power, but also have been leveled at Congress’s commerce power. With both sources of 

Congress’s authority to apply the ADA to correctional facilities under attack, the 

Goodman case will help determine whether Title II of the ADA is enforceable at all in 

state prisons, jails, and other penal facilities. 

Additionally, the Goodman case is likely to play an important role in defining 

how the constitutionality of other applications of the ADA is analyzed in the wake of 

Tennessee v. Lane. Lane left open many questions about the precise contours of the 

analysis for determining when Congress acted within its power under the Fourteenth 

Amendment, and the lower courts have applied Lane in differing ways. To the extent that 
17

Goodman clarifies any of these issues, it will help determine the extent to which 

Congress’s authority to apply the ADA in other areas will be upheld. 

One question that has arisen in light of Lane is how broadly or narrowly the areas 

of application must be defined. ADA plaintiffs typically describe the areas of application 

broadly in order to point to an array of constitutional rights at issue and a broader history 

of constitutional violations, whereas states typically describe the areas of application as 

narrowly as possible. 

Lane described the application it considered as access to the courts, and discussed 

a variety of constitutional rights that arise in this context – Due Process and Sixth 

Amendment rights of a criminal defendant to be present at all stages of a trial where his 

absence might frustrate the fairness of the proceedings, Due Process rights of certain civil 

litigants to have a meaningful opportunity to be heard and have obstacles to their full 

participation in judicial proceedings removed, the Sixth Amendment right of criminal 

defendants to a jury composed of a fair cross section of the community, and the First 

Amendment right of the public to have access to criminal proceedings.82 The Court’s 

recitation of the record of discrimination relating to court access, however, was not 

specifically confined to those types of claims,83 nor did the ADA claim of one of the

Lane plaintiffs (Beverly Jones, a court reporter with paraplegia who had to be carried to 

inaccessible courtrooms) fit within those types of claims. 

While some states have argued that Lane’s holding is limited to those areas of 

court access where the Court specifically identified fundamental rights at stake, at least 

one court has read Lane to apply to cases involving access to the courts generally. In 

Badillo-Santiago v. Naveira-Merly,

84 the First Circuit upheld the Fourteenth Amendment 

basis for an ADA claim involving a defendant in a civil case concerning a property sale. 

Some states have argued that the abrogation analysis must be limited to the 

specific type of constitutional right that is asserted by the plaintiff or that is closest to the 

plaintiff’s ADA claims. As noted above, the Eleventh Circuit held in Miller v. King and 

in Goodman that the constitutional right at issue was only the Eighth Amendment right to 

be free of cruel and unusual punishment, and rejected the Justice Department’s argument 

that a broader panoply of constitutional rights was implicated in the prison context.85 

The Court’s opinion in Goodman may shed some light on how broadly the 

application at issue should be framed. Notably, the application at issue in Goodman has 

been defined differently in the various briefs, including “state prisons,” “the penal 

system,” and “the system of administration of justice.” In light of the obvious difficulty 

of determining precisely what the area of application is, it is possible that the Court may 

choose to offer some type of guidance about how this determination should be made. 

Another issue that Goodman may help clarify is whether the Fourteenth 

Amendment basis for Title II may extend to applications that do not directly involve 

fundamental rights. Some states have argued that Lane supports Congress’s Fourteenth 

Amendment authority to enact only applications of Title II that involve fundamental 
18

rights. Lane’s analysis, however, suggests that it is not so limited. In fact, at least two 

appeals courts have relied on Lane to uphold Congress’s Section 5 authority to enact the 

ADA’s requirements with respect to higher education, despite the absence of allegations 

that a specific fundamental right was at stake.86 These courts relied on Lane’s conclusion 

that Congress had amassed a sufficient record of constitutional violations in public 

services generally to justify a prophylactic remedy, and the limitations of Title II’s 

remedies that made it congruent and proportional to the long history of constitutional 

violations in public education. 

A decision in Goodman will likely also give guidance on whether the Supreme 

Court’s decision in Lane decided the second abrogation step – whether Congress acted 

based on a sufficient record of a history and pattern of constitutional violations by states 

– for all Title II cases or only for cases involving access to courts. Plaintiffs and the 

Justice Department have argued, and several courts of appeals have agreed, that Lane’s 

analysis of the historical record applies to all Title II cases, regardless of the area at issue. 

For example, the Eleventh Circuit in Miller held that the second step of the abrogation 

analysis “already has been decided by the Supreme Court in Lane.”87 The court noted 

that Lane had considered evidence of disability discrimination in public services and 

programs generally and concluded that "Title II in its entirety satisfies Boerne's step-two 

requirement that it be enacted in response to a history and pattern of constitutional 

violations.”88 Likewise, the Fourth Circuit in Constantine stated that “[a]fter Lane, it is 

settled that Title II was enacted in response to a pattern of unconstitutional disability 

discrimination by States and nonstate government entities with respect to the provision of 

public services,” and held that “[t]his conclusion is sufficient to satisfy the historical 

inquiry into the harms sought to be addressed by Title II.”89

On the other hand, if a decision in Goodman makes clear that courts must 

examine whether a history and pattern of constitutional violations by states exists for the 

particular area at issue in each case, the question may then become how extensive and 

specific the history and pattern of constitutional violations must be. While the Lane Court 

considered the record supporting Title II as a whole, it also examined the historical record 

of discrimination against individuals with disabilities in access to courthouses and court 

proceedings.90 It is unclear how a court would address step two of the abrogation 

analysis in a Title II case involving an area that is not specifically addressed, or is only 

briefly mentioned, in the legislative history or case law in existence at the time the ADA 

was passed. 

Moreover, even if a decision in Goodman shows that Lane should be interpreted 

as having already determined that Title II meets the second abrogation step in all Title II 

cases, a decision in Goodman might set forth other ways in which the strength of the 

historical record of state discrimination in the particular area at issue is relevant. For 

example, states have argued, citing the Supreme Court’s decision in Hibbs and Kimel, 

that in determining whether a statute is congruent and proportional, there is a relationship 

between the level of scrutiny applied by courts in a particular area and the strength of the 

record of discrimination required. That is, a less extensive record of discrimination is 

required for a fundamental right than for a right reviewed under rational basis scrutiny. 
19

Finally, a decision in Goodman may clarify whether the third abrogation step – 

the congruence and proportionality analysis – turns primarily on how closely the statutory 

requirements mirror the constitutional standard in the relevant area, on how extensive the 

history of discrimination is in that area, or on how carefully tailored the statutory 

requirements are generally. In Garrett, the Supreme Court seemed to focus on how 

closely the statutory requirements mirrored the constitutional standards. The Court stated 

in dicta that the remedial provisions of Title I would raise serious congruence and 

proportionality concerns because they went far beyond what the constitution would 

require.91 States have relied on this line of reasoning from Garrett, including in 

Goodman, to argue that Title II is not congruent and proportional because the statutory 

requirements go beyond the constitution. 

In contrast, while Lane relied on all of these factors, the Court’s analysis focused 

primarily on the limitations of Title II and the appropriateness of these limited remedies 

in light of the extensive history of discrimination in court access. Rather than discuss 

Title II’s requirements specifically with respect to courthouse access and compare them 

with the constitutional requirements, the Court discussed the requirements of “program 

access” and reasonable modification generally and observed that Title II’s requirements 

are limited, carefully tailored, and reasonable in numerous ways.92 While the Court 

compared Title II’s requirements to the due process standard of “meaningful opportunity 

to be heard” in certain judicial proceedings, its broad statements about the carefully 

tailored remedies of Title II would seem to be applicable in most other contexts as well. 

Plaintiffs - including the plaintiff in Goodman - as well as several courts of appeals, have 

relied on this analysis in Lane to demonstrate that Title II is congruent and proportional 

in other contexts. For example, the Fourth Circuit in Constantine “consider[ed] the 

limitations that Congress placed on the scope of Title II” in determining that Title II is a 

congruent and proportional response in the higher education context.93

In sum, a lot is at stake in Goodman. What the Court says in Goodman may have 

a significant impact on the viability of claims under Title II of the ADA involving not 

only state prisons or other correctional facilities, but a variety of other areas as well. 

Moreover, a finding in Goodman that Title II in the prison context is invalid Fourteenth 

Amendment legislation would not only implicate claims for money damages but could 

also jeopardize application of Title II to all prison claims, even those only involving 

claims for injunctive relief, if courts take a restrictive view of Congress’s authority to use 

its interstate commerce power to enact Title II’s provisions. Finally, a decision in 

Goodman will likely impact the analysis for abrogating states’ sovereign immunity not 

only under the ADA, but also under other civil rights statutes. 

Acknowledgement 

This paper was prepared for the National Council on Disability by Jennifer Mathis, 

Senior Staff Attorney, Bazelon Center for Mental Health Law. 
20

 1

 No. 04-1236, cert. granted, 125 S.Ct. 2266 (2005). 

2 Johnson v. California, 125 S.Ct. 1141, 1150 (2005). 

3

 This case, Parrish v. Johnson, 800 F.2d 600 (6th Cir. 1986), is discussed in Section V. 

4 Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). 

5

 See 42 U.S.C. § 12101(b)(4) (“It is the purpose of this Act . . . to invoke the sweep of 

congressional authority, including the power to enforce the fourteenth amendment and to 

regulate commerce, in order to address the major areas of discrimination faced day-today by people with disabilities.”). 

6

 366 F.3d 614 (8th Cir. 2004), cert. granted, vacated and remanded, 2005 WL 1383725 

(June 13, 2005). The decision was vacated and remanded in light of both Tennessee v. 

Lane (concerning Congress's Fourteenth Amendment power) and also Gonzales v. Raich, 

125 S. Ct. 2195 (2005) (concerning Congress's commerce power). 

7 Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999) (en banc), cert. granted, 548 

U.S. 1146 (2000), cert. dismissed, 529 U.S. 1001 (2000). 

8

 918 F. Supp. 932, 938-42 (E.D.N.C. 1996), aff'd on other grounds, 131 F.3d 136 (4th 

Cir. 1997), vacated and remanded on other grounds, 525 U.S. 802 (1998). 

9

 In a very recent decision concerning Congress’s power to regulate the growth and use of 

marijuana for medicinal purposes, the Supreme Court seemed to take a significantly more 

expansive view of Congress’s commerce power than it had in recent years. This decision, 

Gonzales v. Raich, 125 S.Ct. 2195 (2005), is likely to have an important impact on how 

courts view Congress’s power to use the Commerce Clause to enact portions of the ADA. 

Indeed, the Court has already vacated and remanded an Eighth Circuit decision finding 

no commerce authority for ADA claims challenging the imposition of surcharges for 

handicapped parking placards, and directed the Eighth Circuit to reconsider its decision 

in light of Raich. Klingler v. Department of Revenue, 2005 WL 1383725 (June 13, 2005). 

See supra note 5. 

10 531 U.S. 356 (2001). 

11 541 U.S. 509 (2004). 

12 Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). The Court had previously 

held that Congress could use its commerce power to remove states’ immunity. 

Pennsylvania v. Union Gas, 491 U.S. 1 (1989). 

13 City of Boerne v. Flores, 521 U.S. 507 (1997). It was in Boerne that the Supreme Court 

articulated the “congruence and proportionality test,” holding that Congress must have 

identified a history of constitutional violations and its legislation must “exhibit 

congruence and proportionality between the injury to be prevented or remedied and the 

means adopted to that end.” Id. at 520. 

14 528 U.S. 62, 91 (2000). 

15 529 U.S. 598, 619, 627 (2000). 

16 531 U.S. 356 (2001). 

17 531 U.S. at 371. 

18 Id. at 372-73. 

19 Id. at 372. 

20 Id.

21 538 U.S. 721 (2003). 

22 541 U.S. 509 (2004). 
21

 23 One plaintiff was a defendant in a criminal trial who was forced to crawl up the stairs 

to a second floor courtroom because of the court’s refusal to accommodate his paraplegia 

by moving his hearing to an accessible courtroom. When he refused to crawl up the stairs 

on another occasion, he was arrested for failing to appear. The other plaintiff was a court 

reporter who used a wheelchair and was forced to ask strangers to carry her up stairs to 

inaccessible courtrooms on many occasions. 

24 541 U.S. at 524. 

25 While the Court in Garrett refused to consider local government conduct in the 

congruence and proportionality analysis on the ground that the case was about whether 

Congress abrogated states’ sovereign immunity, the Court in Lane did consider local 

government conduct because such conduct has always been considered relevant to the 

Section 5 inquiry (except in Garrett and Kimel because the purpose of using Section 5 

authority in passing the employment statutes in those cases was solely to ensure that 

states could be sued). Id. at 527 n.16. 

26 Id. at 524. 

27 Id. at 530-31. 

28 Id. at 530-33. 

29 Brief for Petitioner Goodman (“Goodman Br.”) at 1-4. All of the briefs filed with the 

Supreme Court in Goodman are available on the website of the Bazelon Center for 

Mental Health Law at 

http://www.bazelon.org/issues/disabilityrights/resources/goodman.htm. 

30 Id. at 2. 

31 Id. at 2-3. 

32 Id. at 3. 

33 Id. at 4. 

34 Goodman v. Ray, No. 02-10168 (11th Cir. Sept. 16, 2004). 

35 384 F.3d 1248 (11th Cir. 2004). 

36 Miller, 384 F.3d at 1272-76. 

37 Id. at 1272. The Court rejected the United States’ contention that Miller’s case 

involved a panoply of constitutional rights other than the Eighth Amendment right to be 

free from cruel and unusual punishment, stating that the parties themselves had agreed 

that the Eighth Amendment was the only right at issue. Id.

38 Id. While the holding in Lane was limited to the area of access to courts, the Court 

appeared to conclude that the record of disability-based discrimination in state programs 

and services was sufficient to support Title II of the ADA in its entirety. Id. at 524. 

39 Id. at 1273. 

40 Id. at 1275. 

41 Lane, 541 U.S. at 525 and n.11. 

42 Goodman Br. at 22 & n.8 (citing Corrections, Part VIII, Prisons, Prison Reform, and 

Prisoners’ Rights: Michigan: Hearings Before Subcomm. No. 3 of the House Comm. on 

the Judiciary, 92d Cong., 2d Sess. 136, 153, 154 (1972)). 

43 42 U.S.C. § 1997 et seq.

44 Goodman Br. at 23 & n.9 (citing Civil Rights of Institutionalized Persons: Hearings on 

S. 1393 Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 

95th Cong., 1st Sess. 639, 1066, 1067). 
22

 45 Brief for United States as Petitioner in Goodman (“United States Br.”) at 24-25 (citing 

Hearings on S. 1393, at 1067). 

46 Goodman Br. at 23 & n.10 (citing Civil Rights of the Institutionalized: Hearings on S. 

10 Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 96th

Cong., 1st Sess. 474 (1979), 126 Cong. Rec. S1860 (daily ed. Feb. 27, 1980)). 

47 United States Br. at 23 (citing House Comm. on Educ. & Labor, Legislative History of 

Pub. L. No. 101-336: The Americans with Disabilities Act 1190 (1990) [“ADA Legislative 

History”]). 

48 Goodman Br. at 24 (citing CRIPA: Hearings on S. 1393, at 234 (statement of Dr. 

Bailus Walker)). 

49 Goodman Br. at 24 (citing several different CRIPA hearings between 1977 and 1979 

containing testimony about inadequate mental health treatment in Louisiana, Los 

Angeles, Alabama, Oklahoma, and Florida jails and prisons). 

50 United States Br. at 24 n.18 (citing Hearings on S. 1393, at 1066-67). 

51 United States Br. at 25-26 nn. 19-20 (citing various CRIPA hearings). 

52 United States Br. at 22 (citing United States Comm’n on Civil Rights, Accommodating 

the Spectrum 168 (1983)). 

53 Goodman Br. at 24-25 (citing Accommodating the Spectrum at 168). 

54 ADAPT Br., at 11 (citing California Attorney General, Commission on Disability: 

Final Report 103 (Dec. 1989)).

55 United States Br. at 22 (citing California Attorney General, Commission on Disability: 

Final Report, at 110). 

56 United States Br. at 22 (citing Kentucky Legis. Research Commission, Research 

Report No. 125, Mentally Retarded Offenders in Adult and Juvenile Correctional 

Institutions, at A-3, A-29-A-34). 

57 United States Br. at 22-23 n.16 (citing Linda Teplin, The Prevalence of Severe Mental 

Disorder Among Male Urban Jail Detainees: Comparison with the Epidemiologic 

Catchment Area Program, 80 Am. J. Pub. Health 663, 666 (June 1990)). 

58 Goodman Br. at 25 (citing Lodging of United States in Board of Trustees of Univ. of 

Alabama v. Garrett, No. 99-1240, at 1091 (New Mexico), 55 (Alaska), 331 (Delaware), 

572 (Illinois), 673 (Kansas), 787 (Maryland), 1161 (North Carolina); Brief of ADAPT 

and 18 other organizations as Amici Curiae in Support of Petitioners in Goodman 

[“ADAPT Br.”], at 11 (citing same); United States Br. at 28 n.22 (citing same at 23-24 

(New York)). 

59 Goodman Br. at 26 (citing ADA Legislative History at 490) 

60 Goodman Br. at 26 (citing Legislative History at 1080 (testimony of Ilona Durkin), 

1331 (testimony of Justin Dart, 1005 (testimony of Belinda Mason)). 

61 See Goodman Br. at 26-36; ADAPT Br. at 11-22; United States Br. at 30-32 and 

Addendum A; Brief Amici Curiae for Paralyzed Veterans of America, Easter Seals, and 

Ten Other Organizations Supporting Petitioners, at 7-13; Brief of the American 

Association on Mental Retardation et al. in Support of Petitioners, at 14-20 [“AAMR 

Br.”]. 

62 United States Br., Addenda B and C. 

63 United States Br., Addendum B at 1b. 
23

 64 See, e.g., AAMR Br. at 6-14 (citing studies and discussing numerous factors resulting 

in the placement of individuals with mental disabilities in the criminal justice system). 

65 See, e.g., T. Howard Stone, Therapeutic Implications of Incarceration for Persons with 

Severe Mental Disorders: Searching for Rational Health Policy, 24 American Journal of 

Criminal Law 283 (1997); Robert D. Miller, Economic Factors Leading to Diversion of 

the Mentally Disordered from the Civil to the Criminal Commitment Systems, 15 

International Journal of Law & Psychiatry 1 (1992). 

66 See, e.g., Linda Teplin, Policing the Mentally Ill: Styles, Strategies, and Implications in 

Jail Diversion for the Mentally Ill 10, 12-14 (Henry J. Steadman ed., 1990); American 

Bar Association, Standards for Criminal Justice § 7-2.5 cmt. at 40. 

67 See, e.g., Human Rights Watch, Ill-Equipped: U.S. Prisons and Offenders with Mental 

Illness (2003); Bureau of Justice Statistics, U.S. Department of Justice, Mental Health 

and Treatment of Inmates and Probationers (July 1999) (16% of state prison inmates 

have a “mental condition” or have received inpatient psychiatric treatment). 

68 AAMR Br. at 11-13 (citing Craig Haney, Mental Health Issues in Long-Term Solitary 

and ‘Supermax' Confinement, 49 Crime & Delinquency 124, 130 (2003); Ford v. 

Wainwright, 477 U.S. 399, 402-03 (1986); Wilkinson v. Austin, 125 S.Ct. 2384, 2394-95 

(2005); Youngberg v. Romeo, 347 U.S. 307, 327 (1982)). 

69 AAMR Br. at 15 (citing Joel A. Dvoskin & Henry J. Steadman, Chronically Mentally 

Ill Inmates: The Wrong Concept for the Right Services, 12 International Journal of Law 

& Psychiatry 203, 205 (1989); Richard J. Freeman & Ronald Roesch, Mental Disorder 

and the Criminal Justice System: A Review, 12 International Journal of Law & Psychiatry 

105, 110 (1989)). 

70 AAMR Br. at 19-20. 

71 AAMR Br. at 15 (citing Marjorie Rock, Emerging Issues with Mentally Ill Offenders: 

Causes and Social Consequences, 28 Administration & Policy in Mental Health 165, 171 

(2001)). 

72 AAMR Br. at 20 (citing cases in which inmates with mental illnesses deteriorated due 

to conditions of confinement in supermax or segregation units that amounted to cruel and 

unusual punishment). 

73 See, e.g., Lane, 541 U.S. at 522. 

74 See Cutter v. Wilkinson, 125 S.Ct. 2113, 2121-22 (2005) (describing the “degree of 

control unparalleled in civilian society” that the government exercises in prisons, making 

inmates “dependent on the government’s permission and accommodation.”); DeShaney v. 

Winnebago County Dep’t of Social Services, 489 U.S. 189, 199-200 (1989) (Constitution 

imposes duty on state to assume some responsibility for a person’s “safety and general 

well-being” when it takes the person into custody and holds him involuntarily). 

75 See, e.g., Lane, 541 U.S. at 530. 

76 Id. at 531. 

77 Indeed, it is NCD’s position that Title II in its entirety is congruent and proportional to 

the history of discrimination against individuals with disabilities in a wide range of 

contexts, but here we discuss only the application to state correctional facilities. 

78 Nevada v. Hibbs, 538 U.S. at 728. 

79 Lane, 541 U.S. at 531-32. 

80 Id. at 532. 
24

 81 Id. 82 541 U.S. at 523. 

83 Id. at 524-25 & n. 9, 14. 

84 378 F.3d 1 (1st Cir. 2004). 

85 384 F.3d at 1272. 

86 Constantine v. Rectors and Visitors of George Mason Univ., 411 F.3d 474 (4th Cir. 

2005); Association for Disabled Americans, Inc. v. Florida International Univ., 405 F.3d 

954 (11th Cir. 2005) (hereinafter ADA). 

87 Miller, 384 F.3d at 1272. 

88 Id.; see also ADA, 405 F.3d at 958 (citing Miller, 384 at 1272). 

89 411 F.3d at 487. 

90 Lane, 541 U.S. at 527-29. 

91 Garrett, 531 U.S. at 372 (stating, for example, that “the accommodation duty far 

exceeds what is constitutionally required”). 

92 Lane, 541 U.S. at 530-32. 

93 Constantine, 411 F.3d at 488-89. See also ADA, 405 F.3d at 959 (discussing how Title 

II’s remedy is limited).