Chapter 8.B.2 (or 6.B.2).  Disability Discrimination


Notes: Balancing Risk Reduction with Other Values


Note 3. Direct Threat


See also, McKenzie v. Benton, 388 F.3d 1342 (10th Cir. 2004) (considering controversial issue of burden of proof in direct threat cases; holding that plaintiff properly given burden of proving she did not pose a direct threat). Compare to Branham v. Snow, 392 F.3d 896 (7th Cir. 2004) ( burden of proof for the defence of direct threat placed on the defendant).


For a discussion of the direct threat defense, see Bales, R., HIV and the Direct Threat Defense, 91 Ky. L. J. 851 (2002-2003).


Note 5.  Rereading Jacobson


As noted in the text, in Tennessee v. Lane, 124 S.Ct. 1978 (2004), the Court held that Title II could be applied in cases involving a valid exercise of Congressional power to enforce the Fourteenth Amendment. The Court applied the test developed in City of Boerne v. Flores, 521 U.S. 507, to determine whether a Congressional enactment is a valid effort to enforce the Fourteenth Amendment. The Title II claim was upheld in Lane because the contested state action affected the fundamental right of access to the courts.


For a post-Lane case dealing with whether and how Title II might be applied in public health cases see Phiffer v. Columbia River Correction Inst., 384 F.3d 791 (9th Cir. 2004) (An inmate suffering from osteoarthritis and osteoporosis was denied accommodation for his disabilities. On remand from the Supreme Court, the Court of Appeals held that the State was not entitled to Eleventh Amendment immunity from the inmates’ suit under Title II of the ADA.) cert. denied, 126 S.Ct. 1140 (2006). Post-Lane case law must be monitored to determine whether and how Title II might be applied in other public health cases.


Also as noted in the text, the Rehabilitation Act’s provisions governing recipients of federal funds might grow in importance if Lane signals sharp restrictions in the application of Title II of the ADA to cases involving state public services. See e.g. Constantine v. Rectors and Visitors of George Mason University, 411 F.3d 474 (4th  Cir. 2005). A state university waived its Eleventh Amendment immunity from a disability discrimination claim under the Rehabilitation Act when it accepted federal funds (on the express condition that immunity be waived). The court broadened the application of the Title II analysis in Lane finding that access to public higher education is not a fundamental right, however the accommodation requirement “represents a congruent and proportional response to a history and pattern of unconstitutional disability discrimination

by States and nonstate government entities.”