WHAT HAPPENS WHEN A VAGUE, sweeping civilrights law is put at the disposal of antisocial citizens famous for the variety, multiplicity, and shamelessness of their lawsuits? We may be about to find out. On April 28, the Supreme Court will hear oral argument on whether the Americans with Disabilities Act applies to a prisoner. The court is likely to find in favor of the inmate. The Clinton administration seems poised to celebrate such a ruling with attempts to expand further the rights of convicts. And the blame for this legal absurdity lies not with our imperial judiciary but with Congress and the Bush administration.
In Pennsylvania Dept. of Corrections v. Yeskey, the high court will consider the appeal of a Pennsylvania inmate who was denied admission to a “motivational boot camp program” because of a history of high blood pressure. Yeskey sued the state prison system for violating his rights under the Americans with Disabilities Act. The ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
In July 1997, the Third U.S. Circuit Court of Appeals ruled that Yeskey and his fellow prisoners should not be barred from bringing disabilities lawsuits. The disabilities act, the court said, “must be held to apply to state and local correctional facilities.” Both the Seventh and the Ninth Circuits have agreed with this portentous interpretation. Congress, the courts noted, drafted the law so broadly as to apply even to prisoners. If the Supreme Court endorses this view, the ADA may turn out to be the greatest wellspring of prisoner litigation since the invention of habeas corpus in the Middle Ages.
Last year, Judge Richard Posner of the Seventh U.S. Circuit Court of Appeals handed down a compelling analysis of the ADA’s application to prisons, on which the Third Circuit relied heavily in Yeskey. Posner noted in Crawford v. Indiana Dept. of Corrections that the ADA doles out rights to all “qualified [individuals] with a disability” who are denied access to “services, programs, or activities of a public entity.” The state of Indiana conceded that the ADA applied to prison employees but contended that inmates fell outside its ambit. “The difficulty” with this interpretation, Posner noted, “is that the statute furnishes us with no implement for drawing the line there.”
The statute’s language is generous indeed — much of it borrowed from the Rehabilitation Act of 1973. By 1990, when Congress passed the ADA, the courts had interpreted the Rehabilitation Act as applying to prisons and prisoners. When Indiana urged a different interpretation of the ADA, it was effectively “asking us to amend the two statutes,” noted Posner. And while judges do from time to time unveil “judge- made statutory exceptions so weakly rooted in the statute as to be fairly described as judicial amendments,” the Seventh Circuit would not do the same on Posner’s watch. Congress, he found, seemed to regard disability-based discrimination as so “unfair and even odious” that it designed the ADA to penetrate even the walls of penitentiaries.
The two circuits that have refused to apply the ADA to inmates, the Fourth and the Tenth, have done so with rulings that seem strained and result-oriented compared with Posner’s opinion. The case that thrust the issue before the Fourth Circuit, Torcasio v. Murray, had as its star plaintiff an inmate pressing an ADA claim based on obesity. The court ruled that when Congress wishes to regulate prisons, a ” core state function,” it must express this intention unambiguously. In White v. Colorado, the Tenth Circuit ruled tersely that the inmate’s ADA claims were not “viable.”
While these cases were wending their way through the courts, the Clinton administration was aggressively pursuing a second front in the campaign to extend prisoners’ rights. The Individuals with Disabilities Education Act of 1975 (IDEA) guarantees a “free appropriate public education” to all disabled Americans through high school or age 21. The act defines “disabilities” as including “serious emotional disturbances,” which under the regulations cover “inappropriate types of behavior or feelings” and “a general pervasive mood of unhappiness or depression.” In September 1992, as one of its last acts, the Bush administration published a regulation that applied IDEA to educational programs in “state correctional facilities.” Since then, the Department of Education has scoured the country for scofflaws, citing at least 20 states for noncompliance and threatening to withhold federal education funds in retaliation.
Last year, Gov. Pete Wilson of California fired off a letter to Education secretary Richard Riley excoriating the Clinton administration for enforcing IDEA in prisons and mandating “special education for death row inmates and violent criminals.” Failure by the Golden State to provide this costly instruction could lead to the loss of over $ 300 million in federal special-education funding. Wilson pointed out that the youths transferred to adult prisons typically are hardened criminals; California has more than 700 such inmates sentenced to life without parole and two currently on death row.
The Americans with Disabilities Act has enough problems without applying it to inmates. Deliberately open-ended, the ADA invites exploratory litigation. It is therefore ripe for abuse when placed in the hands of criminals practiced in barratry. Congress should make it clear that rights under the ADA and IDEA are among those that convicts leave behind when they pass through the prison gate.
Andrew Peyton Thomas is an attorney in Phoenix.
