Fall 2004 Municipal Law Update
by Amanda Bigbee, Associate

1. Tennessee v. Lane, et al, 124 S. Ct. 1978 (2004).

Title II of the ADA applies to the class of cases implicating the fundamental right of access to the courts and constitutes a valid exercise of Congress’ authority to enforce the guarantees of the Fourteenth Amendment.

Respondents George Lane and Beverly Jones, both paraplegics and in wheelchairs, filed this suit against the state of Tennessee alleging violations of Title II.   They claim that they were denied access to the Tennessee court system because of their disabilities.  Lane was forced to appear before the court on the second floor of the courthouse to answer criminal charges.  The courthouse had no elevator, and he had to crawl up the stairs to appear before the court.  Lane refused to crawl or to be carried by court officers for his second court appearance, and was then arrested and jailed for failing to appear.  Jones, a court reporter, has alleged that she has been denied access to several county courthouses, and therefore, alleges she has lost work opportunities and the opportunity to participate in the judicial system. 

Title II of 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.”   The issue before the Court was whether Title II of the ADA applies to cases implicating the fundamental right of access to the courts and whether it exceeds Congress’ power under § 5 of the Fourteenth Amendment.

The Court held that that Title II applies to cases denying disabled persons the right of access to public facilities.   The Court further found “that Title II unquestionably is valid § 5 legislation as it applies to the class of cases implicating the accessibility of judicial services, we need go no further.”  The Court observes that states are only required to “take reasonable measures to remove architectural and other barriers to accessibility.”  In the case of facilities constructed after 1992, they must comply with “specific architectural accessibility standards.”  For older facilities, a state may take measures such as “relocating services to alternative, accessible sites and assigning aides to assist persons with disabilities in accessing services.” 

2.Freeman, et al v. Texas Dep’t of Criminal Justice, et al, 369 F.3d 854 (5^th Cir. 2004).

The Texas Department of Criminal Justice religious accommodations policy does not violated the Free Exercise Clause of the First Amendment or the Equal Protection Clause of the Fourteenth Amendment.

A class of inmates subscribing to the Church of Christ Faith appealed a summary judgment in favor of the Texas Department of Criminal Justice (“TDCJ”).  The class claims they were not provided an adequate opportunity to practice the Church of Christ faith.  One Plaintiff, Freeman, also filed a §1983 claim, asserting that he was retaliated against after publicly criticizing the Church of Christ chaplain provided for the inmates in a way that incited approximately 50 other inmates to leave the service.  TDCJ provides weekly religious services in five major religious sub-groups:  Roman Catholic, Christian/non-Roman Catholic, Jewish, Muslim, and Native American.  TDCJ asserts that it cannot further divide religious services because of legitimate penological concerns.  TDCJ also provides inmates with the opportunity for immersion baptism services, permits the possession of religious literature, and allows inmates to meet with an approved spiritual advisor.

The Court held that the regulations at issue are valid because they relate to legitimate penological interests.  The Court determined that TDCJ had legitimate, neutral reasons for not providing a separate Church of Christ services, including staff supervision requirements, security concerns, availability of religious volunteers, limited meeting time and space, and the percentage of the offender population that the requesting faith group represents.  Further, there is no evidence that TDCJ targeted the Church of Christ or favored one religious group over another.  The Court pointed out that the arrangements TDCJ made for Church of Christ inmates constituted an “alternative means” of exercising their religion and, therefore, there was no Equal Protection violation.  Finally, the Court determined that Freeman was not able to prove the denial of Constitutional right, so his retaliation claim failed.  TDCJ’s summary judgment was affirmed.

3. Whitesell v. Newsome, 2004 WL 414074 (Tex.App.--Houston [14^th Dist.] 2004). 

No educator immunity when an act by a school employee does not involve the exercise of judgment or discretion.

Plaintiff brought an action in federal court, asserting a §1983 claim and state law claims for battery and negligence against the school district, the district's bus transportation contractor, the contractor's bus driver, and other individuals.   The suit related to the bus driver's alleged sexual misconduct towards a child.  The United States District Court for the Southern District of Texas granted summary judgment for the school district and the contractor on the §1983 claim and declined to exercise supplemental jurisdiction over the remaining state law claims.   The Plaintiff then brought an action in state court against the contractor, the bus driver, and the bus driver's supervisor claiming negligence and negligence per se claims. The 335th District, Washington County, denied the supervisor's motions for summary judgment, and the supervisor brought an interlocutory appeal.

The court concluded that the supervisor did not have educator immunity as to the negligence and negligence per se claims because the supervisor failed to disclose to the school district that the bus driver under his supervision had a prior felony conviction involving burglary of an automobile.   The court found that the Education Code left nothing to the supervisor’s exercise of discretion or judgment with respect to hiring or recommending a bus driver who has been convicted of a felony.   The Education Code provides immunity only with respect to acts involving exercise of judgment or discretion.

4. Ramirez v. Fifth Club, Inc., et al, 2004 WL 903912 (Tex. App.—Austin 2004).

Individuals hired as security officers for a private college are entitled to the same immunities as peace officers, including official immunity, while performing the duties of a peace officer outside of their jurisdiction.

Three nightclub patrons brought action against nightclub and nightclub security personnel following altercation where Plaintiffs were allegedly injured by nightclub security.   Plaintiffs’ alleged assault, false imprisonment, malicious prosecution, intentional infliction of emotional distress, and malice.   The security personnel were also employed by a private college as campus security personnel. Texas Education Code §51.212 states that a campus officer has the powers, privileges, and immunities of peace officers “while on the property… or otherwise in the performance of his assigned duties” (emphasis added).  Since these individuals were commissioned by the college to function as peace officers, they asserted that they were entitled to official immunity. 

The court held that the district court did not err in submitting the question of official immunity to the jury because the education code provides the same immunities as peace officers to security personnel for private colleges who function as peace officers outside of their jurisdiction.

******************************************

If you have any questions about any of these cases or would like copies of specific cases, please contact Amanda Bigbee (ABigbee@fhmlaw.com).

******************************************

© Fanning, Harper & Martinson, P.C., July 2004.

Fanning, Harper & Martinson, P.C.
Two Energy Square
4849 Greenville Ave., Suite 1300
Dallas, Texas 75206
Phone: (214) 369-1300
Fax: (214) 987-9649

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Copyright © by Fanning Harper & Martinson P.C.. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.