Prisons and the ADA

By Laura F. Rothstein
Health Law & Policy Institute

The U.S. Supreme Court has agreed to decide whether state and local prisons and jails are covered by the Americans with Disabilities Act (ADA). The second ADA case to be granted certiorari by the Supreme Court, Yeskey v. Pennsylvania, 118 F.3d 168 (3d Cir. 1997), will be heard on April 28, 1998.  In the first ADA case, Abbott v. Bragdon, the Court will determine the application of the ADA to to the treatment of an HIV positive dental patient. See discussion at Supreme Court to Decide whether Asymptomatic HIV-Positive Status is Disability under the ADA.

The plain language of the statute and the legislative history seem to make it clear that state prisons and local jails are state and local governmental entities subject to the nondiscrimination mandate of Title II of the ADA. Nevertheless, there has been a split among the courts on this issue. The Seventh and Ninth Circuits have held that Title II applies, while the Third and Eleventh Circuits have held that it does not. The Tenth Circuit decision was limited to holding that the ADA does not apply to prison employment. There have been a number of district court opinions as well.

Some of the issues in these cases are unrelated to access to health services. They include a deaf inmate's requests for access to closed captioned videos, telephone service, and interpreters; physical barrier issues (such as access to certain areas of the prison, putting guardrails on the bed of a paraplegic prisoner, and ensuring safe transportation of prisoners using wheelchairs); and accommodations for an obese prisoner. The health-related issues include access to medical needs, access of a paralyzed prisoner to the infirmary, and requests to avoid exposure to second hand smoke. Many of the claims involve prisoners who are HIV positive, where the issues can include conjugal visits, segregation of HIV positive prisoners, screening of prisoners for HIV, and biting by prisoners with HIV.

Unfortunately, some of the lower court cases have been decided on the wrong legal grounds. For example, the Tenth Circuit decision in White v. Colorado, 82 F.3d 364 (10th Cir. 1996), holding that prison employment is not covered by the ADA might have been a result-oriented conclusion. The court was concerned about whether an HIV positive prisoner should be allowed to work in food service. Rather than holding that prison employment is not subject to Title II, the court should have addressed whether prisoners with HIV are otherwise qualified to serve food because of legitimate concerns about prisoner behavior in response to a policy allowing such employment. While customer and coworker preference is rarely allowed as a defense, and food handling by an HIV-infected worker does not usually present a risk, the unique context of prisons might well have allowed such a defense in this case.

Although arguably incorrect, the prison and jail cases are consistent with many courts' narrow view of the ADA generally. Some courts are too willing to dismiss ADA claims by defining who is protected and what programs are covered narrowly, rather than allowing the cases to go forward on the merits and assessing the harder issues, such as whether the individual is otherwise qualified and/or whether the requested accommodations are reasonable.

This issue, including numerous case citations, is addressed in Laura F. Rothstein, Disabilities and the Law, Section 9.10 (Westgroup 1997 and cumulative supplements).