Court can be sued under ADA for failing to provide hearing assistance to hearing-inpaired individual involved in custody suit

Law Reporter, May 2002

Popovich v. Cuyahoga County Ct. Com. Pl., 276 F.3d 808 (6th Cir. 2002).

The Sixth Circuit Court of Appeals held that a state court can be sued under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. 12132, for failing to provide adequate hearing assistance to a hearing-impaired individual involved in a child custody suit.

The Sixth Circuit first noted that the Eleventh Amendment prohibits Congress from ordering federal courts to hear suits by citizens brought against a state. However, the Fourteenth Amendment partially abrogates this immunity from suit by giving Congress the authority to enforce due process guarantees by enacting appropriate legislation.

Addressing plaintiffs discrimination claim, the court cited U.S. Supreme Court case law holding that the Eleventh Amendment bars federal employment discrimination suits brought against states under Title I of the ADA because the constitutional right at issue in disability discrimination claims does not go beyond equal protection. Under equal protection principles, the court explained, disability is not considered a suspect category and, therefore, does not deserve heightened scrutiny. Consequently, Congress may not enforce the Equal Protection Clause by creating a higher standard of liability and enforcing it against states. Sovereign immunity under the Eleventh Amendment forbids heightened state liability in disability claims because such claims have never before received more constitutional protection than rational basis review, the court said. Thus, plaintiffs discrimination claim is barred by the Eleventh Amendment.

Turning to plaintiffs unreasonable exclusion claim, the court agreed with the U.S. Supreme Court that Title II of the ADA is different from Title I in that Title II encompasses due process claims, not just equal protection claims. Plaintiff's unreasonable exclusion claim is based on denial of due process in that defendant reportedly denied plaintiff a reasonable way to participate in a proceeding so he could assert his child custody rights. The court noted that the Supreme Court has recognized the special nature of parental rights and has consequently imposed special due process guarantees so that states cannot easily terminate parents' relationships with their children. Denying plaintiff accommodation for his disability, the court said, could preclude him from adequately responding to charges made by the other party, which is an essential part of the adversarial system. Therefore, Congress is within its authority to require states to accommodate parental disability because to do so would be enforcing plaintiffs due process rights under the Fourteenth Amendment, the court concluded.

Plaintiffs Counsel Richard C. Haber, Cleveland, Ohio Brian D. Sullivan, Cleveland, Ohio

Comment: See also Duvall v. County of Kitsap, 260 EM 1124 (9th Cir. 2001), 44 ATLA L. Rep. 377 (Dec. 2001), in which the Ninth Circuit Court of Appeals held that a trial court's refusal to provide videotext display to an individual with a hearing impairment violated the reasonable accommodation requirement of the ADA. Lonnie Davis and Christopher K. Steuart, both of Seattle, Wash., represented plaintiff.