28-C-5. What Kind of Damages Can You Seek Against a State
What you can win in court depends on the facts of your case, and on whether you sue under Title II or Section 504. You should carefully consider what you want the court to do before you file your suit.
(a) Money Damages
Courts are divided over whether you can sue a state for money damages under the ADA and Section 504. This is because they are split as to states' Eleventh Amendment immunity (also known as "sovereign immunity").
Under the Eleventh Amendment, states (but not federal and local government) have what is called "sovereign immunity."226 This means individuals cannot sue them for money in federal court-unless Congress creates an exception. You can always sue states for injunctive relief. It is true that both the ADA and Section 504 apply to state prisoners.227 But it is not clear whether states have waived their immunity, so that you can sue them for money damages under those laws.
States do not want to have to pay money when they lose lawsuits. So they argue that, in enacting the ADA and Section 504, Congress did not have the authority to create an Eleventh Amendment exception to sovereign immunity. Therefore, states argue, people bringing claims under the ADA and Section 504 should not be able to win money damages against the states. Once courts decide that states cannot be sued for money damages, individuals suing states can only receive "injunctive relief,"228 discussed in subsection (b), below.
(b) Sovereign Immunity and the ADA
The Supreme Court has taken the middle road between allowing and not allowing state prisons to be sued for money damages under Title II of the ADA. Recently, in Tennessee v. Lane, the Supreme Court held that states may be sued for money damages for violations of Title II, at least when the violations relate to court access for a disabled person.229 Prior to Lane, most federal courts had held that states could not be sued for money damages at all.230 Then, in United States v. Georgia, the Supreme Court held that prisoners may sue states for money damages under Title II, at least in situations where the alleged misconduct actually violates the parts of the Constitution that apply to the states.231 In that case, the plaintiff alleged Eighth Amendment violations.232 However, the ruling is broad, and applies to more than just the Eighth Amendment. The court did not say whether the Eleventh Amendment waiver also applies to ADA violations that do not involve constitutional violations.233
So the current rule is that prisoners may sue states for money damages under Title II when a state prison system (1) violates any of the rights that are part of the Fourteenth Amendment and (2) violates Title II.234 The Fourteenth Amendment includes most of the rights in the first eight amendments to the Constitution. Specifically, it includes the following rights from the first eight amendments:
(1) Guarantee against establishment of religion;235
(2) Guarantee of free exercise of religion,236
(3) Guarantee of freedom of speech,237
(4) Guarantee of freedom of the press,238
(5) Guarantee of freedom of assembly,239
(6) Right to keep and bear arms,240
(7) Right to be free from unreasonable search and seizure,241
(8) Warrant requirements,242
(9) Protection against double jeopardy,243
(10) Privilege against self-incrimination,244
(11) Protection against taking of private property without just compensation,245
(12) Right to a speedy trial,246
(13) Right to a public trial,247
(14) Right to trial by jury,248
(15) Right to confront adverse witnesses,249
(16) Right to assistance of counsel,250
(17) Protection against cruel and unusual punishment.251
Additionally, the 14th Amendment itself provides that:
(1) No State shall make or enforce any law which shall abridge the privileges or immunities of U.S. citizens;
(2) No State shall deprive any person of life, liberty, or property without due process of the law; and
(3) No State shall deny equal protection of the law.
So, if any of these rights are violated in addition to Title II, you may be able to sue for money damages. It appears that, after Lane and Georgia, lower courts will take a case-by-case approach, considering the particular circumstances, in determining whether the plaintiff can sue the state for money damages.252 And, of course, some courts will be more likely than others to permit money damages.253
If you are considering bringing a disability discrimination claim under Title II, you should look at how the decisions in Lane and Georgia have been analyzed and interpreted by other courts, disability rights organizations, and academics. See Chapter 2 of the JLM for information on performing legal research.
(c) Sovereign Immunity and Section 504
Courts are divided over whether states are protected by sovereign immunity under Section 504. Most Courts of Appeals that have addressed this issue have held that you can seek monetary damages under Section 504.254 But the Second Circuit has held that you might not be able to get monetary damages from states under Section 504, since states only agreed to be sued for money damages under Title II, and not Section 504.255
Overall, though, the arguments supporting Section 504 sovereign immunity are weak. This is because so many state agencies receive federal funding, and Congress only offers them federal funding in exchange for complying with Section 504-thus waiving their state's sovereign immunity. Therefore, even Second Circuit courts would find that, in reality, most states have waived their sovereign immunity under Section 504, and...
