In order for a state to assert an 11th Amendment defense against a Title II lawsuit, the state must meet a three step analysis about the constitutionality regarding the level of state violation versus the congressional legislation in place to combat it. The test itself is preformed first by identifying the constitutional right in question. In Garrett, the issue was equal protection. Secondly, the Court decided that Congress had not adequately provided a pattern or history of record of continued unconstitutional discrimination by the state against people with disabilities (the second question a case must satisfy). This showing of past behavior is a result of Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), in which the Court examined similar damage remedies in the Age Discrimination Employment Act. The Kimel decision insisted on a record of prior constitutional violations by states to justify congressional action that prohibits states from engaging constitutional activity (NCOD). This progression of sovereign immunity set the stage for the Courts review of Title I of the ADA in Garrett. And lastly, the proposed remedy must be congruent and proportional to the violation. The three part analysis/ test that was developed to help determine Garrett is now being used by lower courts to decide the same questions of state immunity but this time in regards to Title II of the same Act which we did not rule on in Garrett. The question of its appropriateness in use in Title II cases when created for Title I cases is one question before this court. In Garrett this court made clear in its opinion that the two titles of the ADA differ in significant respects. The basis for the 6th Circuit’s decision in Lane v. Tennessee lies in its own decision in Popovich v. Cuyahoga County Court of Common Pleas, 276 F.3d 808 (6th Cir. 2002) (en banc), a case in which this court denied cert. It used the three part test to determine that although Title I claims fall under Equal Protection, Title II claims of participation and access to facilities fall under the category of due process and are therefore are a valid exercise of Congressional power to enforce state adherence by way of legislation. Based on the record Congress considered, it was reasonable for Congress to conclude that it needed to enact legislation to prevent states from unduly burdening constitutional rights, including the right of access to the courts.

It is the opinion of this court that the 6th Circuit Court of Appeals is correct in their decisions in both Popovich and in their most recent decision in Lane v. Tennessee. The Circuit Court draws it decision of denying Tennessee immunity from the section of the ADA which reads, “[a] state shall not be immune under the 11th Amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter” (Medill). We see an inherent difference between Title I claims of equal protection and Title II claims dealing with due process. Discriminatory practices by states have been upheld by this court in the past that violate equal protection. This Court ruled in Cleburne v. Cleburne Living Center Inc., 473 U.S. 432 (1985) that “people with disabilities are not a suspect class for equal protection analysis” and can be treated differently, and that, “any action by the state is constitutional provided there is a rational relationship between the disparate treatment [administered and some stated, legitimate] purpose.” This court struck down attempts to include Title I claims in with Congress’ power to legislate under §5 because it “prescribed standards that far exceeded what the Constitution required.” The Court found that Congress was, “trying to redefine the guarantees of the 14th Amendment.” We do not imp

Some topics in this essay:
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