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Abstract:
Access to the judicial system, a fundamental right that has paramount importance in our society, can often present obstacles to people with disabilities in a variety of significant ways. Yet Title II mandates that state and local judicial facilities be accessible to individuals with disabilities. Recent shifts in paradigmatic approaches to special populations such as drug offenders and offenders with mental disabilities have lead to the creation of mental health courts specifically designed to address the needs of the persons with mental disabilities in order to avoid incarceration. Early outcomes in states like Ohio suggest mental health courts may better serve the purposes of Title II and, more importantly, the needs of individuals with serious mental disabilities.

This paper gives a more detailed account of the background and history of the disability antidiscrimination legislation, takes a closer look at the Supreme Court's decision in Tennessee v. Lane, and discusses the historical context giving rise to the creation of mental health courts. Next, this paper explores the challenges and criticisms faced by these specialty courts, evaluates mental health courts under two integral concepts of Title II, accessibility and integration, and concludes that mental health courts may withstand scrutiny under Title II.

Mental health, ADA, Title II, Mental health courts

Abstract:
Recent Supreme Court cases regarding Congress's abrogation authority have seriously impaired Congress's ability to demonstrate a valid exercise of its Section 5 power under the Fourteenth Amendment to subject nonconsenting states to suit for money damages in federal court. During its 2003 term, the Supreme Court has again granted certiorari to a case involving the proper scope of Congress's section 5 power, Lane v. Tennessee. Lane involves a suit for money damages under Title II of the ADA based on the alleged failure of the State of Tennessee to make its courthouses accessible. Many commentators suggest that the Supreme Court will follow its current precedent and deny a damage remedy in Lane, particularly since the Court barred a suit for damages brought by a state employee for an alleged violation of Title I of the ADA in Board of Trustees of the University of Alabama v. Garrett. This article critiques the Court's current analysis as seen in Garrett and proposes that the Court should evaluate the ADA's Title II damage remedy against the states differently than it did Title I's. It suggests that the Court should adopt an "as applied" analysis when deciding Title II damage remedy claims. By examining the specific state program or service alleged to discriminate against the disabled, the Court may apply a different level of scrutiny to the state's action than the rational basis scrutiny that applied in Garrett. For example, in Lane, the fundamental right of access to the state court system has been denied to disabled plaintiffs in Tennessee because the courthouses are inaccessible to those who cannot walk up the stairs. Because the Lane case involves a fundamental right, the Court should apply strict scrutiny when evaluating Title II's congruence and proportionality. Analyzing the Lane case, and other Title II damages claims on the facts and with respect to the right that has allegedly been abridged is the appropriate federalism standard.

Litigation, Federalism, American with Disabilities Act