Betsy Ginsberg


People with disabilities are all too well represented in America’s prisons and are frequently not provided with the accommodations necessary to ensure their full participation in prison life. The Supreme Court’s 1997 pronouncement that Title II of the ADA applies to their claims of failure to accommodate and disability-based discrimination has been making its way through the prison grapevine (and hopefully the prison law libraries) over the last dozen years, inspiring prisoners, their advocates and the federal government to use this broad civil rights statute to enforce these rights. Their efforts have been thwarted to some extent by the states’ assertion of sovereign immunity from suits for money damages. To ensure greater success and ease in litigating claims of disability-based discrimination, prisoners and their advocates should be strategic about the claims they raise rather than employ a kitchen-sink approach to litigation. Determinations must be made about whether to abandon constitutional claims in favor of statutory ones and whether the ADA’s predecessor statute, Section 504, provides equivalent protection and should be invoked in lieu of the ADA to avoid dismissal on sovereign immunity grounds.