A Helping Hand

44 Pages Posted: 5 Jan 2021

Date Written: January 1, 2019


The Americans with Disabilities Act is a paradigm shifting statute with sweeping implications. It sought to help fill the gap in protections for people with disabilities that had been left open by previous civil rights laws. Furthermore, Title II of the ADA has helped fill the gap left by § 1983. Although § 1983 is the most prevalent civil rights statute, it often runs up against the problem of qualified immunity. To defeat assertions of qualified immunity a plaintiff must show that a constitutional right was violated and that such right had been clearly established. However, qualified immunity does not apply in ADA Title II cases, which deal with suits against the States. In those cases, litigants do face the issue of “sovereign immunity.” To defeat claims of sovereign immunity, ADA litigants must show that either a constitutional right was violated or that abrogation of such immunity in the specific case at hand was in essence close enough to enforcing that right. In either case, a constitutional right must be identified under the facts of the case. It does not matter that the findings of a constitutional right would be under different statutes, litigants may refer to cases under either to find that a right was clearly established. This is so because (1) no case under either Bivens or § 1983 have held they are the exclusive mechanisms for establishing such rights—and indeed they themselves refer to each other frequently; and (2) the very nature of constitutional law is such that it does not matter which statute is used to enforce the constitution—i.e., the government action complained of is still unconstitutional whether under the ADA or § 1983. Therefore, litigants in § 1983 may unabashedly resort to cases under Title II of the ADA, dealing with abrogation of sovereign immunity, to show that a constitutional right was clearly established to defeat assertions of qualified immunity in non-ADA § 1983 cases. The effects of such a theory are clear: (1) it will expand the precedential body from which litigants can draw clearly established law, and (2) it will allow litigants whose rights would otherwise be protected by the ADA, save for minor faults, to resort to § 1983 to assert constitutional rights previously established in ADA abrogation cases.

Suggested Citation

Warden, Derek, A Helping Hand (January 1, 2019). George Mason University Civil Rights Law Journal (CRLJ), Vol. 29, No. 1, 2018, Available at SSRN: https://ssrn.com/abstract=3730760

Derek Warden (Contact Author)

Louisiana Supreme Court ( email )

400 Royal Street
New Orleans, LA 70130
United States

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