In next round, will disability rights be broadened further?

The Supreme Court sends six cases back to lower courts after its key decision last week favoring a man in a wheelchair.

George Lane crawled up two flights of stairs to satisfy a judge's order to appear in a second-floor courtroom.

In terms of the fight for disability rights, the imagery of a man leaving his wheelchair behind in order to exercise his constitutional guarantee of access to the courts was stark and brutally effective. It persuaded Justice Sandra Day O'Connor to join forces with the Supreme Court's liberal wing and carve out a new doctrine permitting disabled individuals to sue state governments for money damages whenever discrimination against the disabled interferes with the fundamental freedom of access to the courts.

Yet to what extent the Supreme Court's newly minted protections for the disabled apply to other areas of American society depends on how new cases are decided. This week, the US Supreme Court remanded to the lower courts six cases all involving efforts to hold states accountable for alleged violations of the Americans With Disabilities Act (ADA). In each instance, the case was sent back for further consideration in light of the high court's decision in the Lane case.

Three of the cases involve complaints by disabled inmates in state prisons in New Hampshire, Virginia, and Oregon. Another was filed by a disabled graduate student seeking more permissive test and assignment standards at her state college in Tennessee. A fifth case involves a nursing candidate in Florida with a mental impairment who failed the licensing test because she said the room was too noisy. The last case is a class-action suit challenging a Florida policy of charging a fee for the handicapped parking placard displayed on cars using special-access spots.

In each of these cases, the lower courts must decide whether broader constitutional rights are implicated by the alleged disability discrimination. The judges must also determine whether those rights rise to a high enough level to justify the abrogation of state sovereign immunity, which would otherwise block each of the suits.

A question of access

Arlene Mayerson of the Disability Rights Education and Defense Fund in Berkeley, Calif., says she is hopeful that the courts will expand on the Lane decision and apply the same reasoning to a broader spectrum of disability cases. "Do we have access [only] to fundamental rights, or do we have something more than that?" she says. "It is interesting that the Supreme Court is going to let the lower courts think about that before [the justices] decide to make another move on it."

Samuel Bagenstos, a Harvard Law School professor who has been active in several ADA cases, agrees. "At this point there is a great deal up in the air," he says. "The implications of this [Lane] decision could be very broad."

Yet Marci Hamilton, a constitutional law professor at Cardozo Law School in New York City, says that none of the six cases is likely to result in a win for the disability-rights community. She says that just as in the Lane case, Justice O'Connor may hold the key to the ultimate outcome in these cases. Ms. Hamilton, a former law clerk for O'Connor, says the justice's move to the liberal side in the Lane case was prompted by her view that access to the courts is among the most highly protected rights in the constitutional system.

"She is just fundamentally someone who operates from her sense of moral values and to her, access to the courts is a very highly cherished right, and she wasn't going to rule against that," Hamilton says.

The critical issue, she says, will be determining which rights are likely to be considered by O'Connor as among the most highly protected. "It seems to me Justice O'Connor flips [back to the conservative side of the court] when it is not a highly protected right," she says.

Among the six cases sent back to the lower courts is a lawsuit filed by Matthew Kiman, a former New Hampshire state prison inmate diagnosed with Lou Gehrig's disease. Mr. Kiman's suit says the state violated the ADA and his Eighth Amendment right to be free of cruel and unusual punishment by failing to grant reasonable accommodations. Kiman's condition makes it difficult for him to walk, stand for extended periods, and climb stairs. The suit says prison officials refused to allow him to use a chair while showering and a cane or walker to walk. It says he was assigned to a third-floor cell and that he needed the help of cellmates for routine hygiene. "He has hung on longer than anyone expected him to live," says Kiman's lawyer, Nancy Tierney of Lebanon, N.H. "Basically the only thing that has kept him going is this appeal."

New Hampshire's reply

Andrew Livernois of the New Hampshire Attorney General's Office says the state disputes many of the facts in Kiman's suit. State officials also disagree that any lack of accessibility experienced by Kiman was so severe that it became a form of cruel and unusual punishment.

"It is not as though every inconvenience to a person who is disabled rises to a violation of the Constitution or a violation of the ADA," Mr. Livernois says. "The ADA requires that we make reasonable accommodations, and that depends on a number of factors."

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