Popovich v. Cuyahoga County Court of Common Pleas

276 F.3d 808, 2002 WL 23903

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 10, 2002
• Docket: Nos. 98-4100, 98-4540
• Status: Published

Opinions

MERRITT, J., delivered the opinion of the court, in which seven of the thirteen judges of the en banc court joined in Sections II and III and in the judgment of the court reversing the judgment of the district court and remanding for a new trial; namely, BOYCE F. MARTIN, JR., C.J., MERRITT, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN. Six Judges, RYAN, BOGGS, ALAN E. NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, would reverse the judgment of the district court and dismiss the case. BOYCE F. MARTIN, JR., C.J., MERRITT, RYAN, BOGGS, ALAN E. NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, JJ., concur in Section I of Judge MERRITT’s opinion for the court. MOORE, J. (pp. 818-821), delivered a separate concurring opinion, in which DAUGHTREY, COLE, CLAY, and GILMAN, JJ., joined. RYAN, J. (pp. 821-829), delivered a separate opinion concurring in part and dissenting in part, in which BOGGS, ALAN E. NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, JJ., joined. GILMAN, J. (pp. 829-832), delivered a separate opinion concurring in the judgment and dissenting from the composition of the en banc court.

OPINION

MERRITT, Circuit Judge.

The state sovereign immunity provision of the Eleventh Amendment, ratified in 1795 to overrule Chisholm v. Georgia) 2 U.S. (2 Dali.) 419, 1 L.Ed. 440 (1793), prohibits Congress from directing the federal courts to hear suits by citizens against a state or its executive, legislative or judicial departments.¹ On the other hand, the Fourteenth Amendment in Section 5, ratified 73 years later, partially abrogates this state immunity from suit in federal courts by giving Congress the “power to enforce [Section 1 of the Amendment] by appropriate legislation,” including the creation of federal causes of action against states in federal court.² How exactly to reconcile these two conflicting provisions has in recent years divided constitutional scholars, the federal courts, and the Supreme Court.³ This appeal to the en banc court asks us to examine further the relationship between these two constitutional amendments. The case arises under Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, which 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” (emphasis added). The statute does not define “excluded from participation” or “discrimination.”

Here, a hearing-impaired person brought an action in federal court under Title II against a state court for allegedly failing to provide him with adequate hearing assistance in his child custody case. He obtained a jury verdict in the district court below against the state court for $400,000 in compensatory damages based on an equal protection-type claim of discrimination, a due process-type claim of unreasonable exclusion from participation in the custody proceeding, and a claim of retaliation for filing an administrative complaint for failing to accommodate his disability. The state has asserted it is immune from this suit under the Eleventh Amendment. The questions before us are whether Congress in Title II of the Disabilities Act has validly abrogated the state court’s Eleventh Amendment immunity from suit; and, if so, whether the plaintiff has a valid case under the Act. We conclude that the plaintiffs action is barred by the Eleventh Amendment in so far as the action relies on congressional enforcement of the Equal Protection Clause, but it is not barred in so far as it relies on congressional enforcement of the Due Process Clause. As applied to the plaintiffs cause of action, Title II is “appropriate legislation” under section 5 and the Due Process Clause of section 1 of the Fourteenth Amendment. We also conclude that, on the facts, the $400,000 verdict below must be set aside and the case remanded for a new trial under the Disabilities Act.

I. Enforcement of The Equal Protection Clause

The original three judge panel in this case agreed with the state’s equal protection argument that it was immune from plaintiffs suit under the Eleventh Amendment, and the Court dismissed the suit without reaching the merits. Judge Ryan’s opinion for the Court concluded that Congress had improperly expanded the Equal Protection Clause by imposing “heightened scrutiny” in disability cases when it only requires “rational basis” scrutiny. The Court said that “[i]t is well established that disability is not a suspect class for purposes of equal protection analysis” and so “the State may discriminate on the basis of disability if such classification is rationally related to a legitimate state interest.” Popovich v. Cuyahoga County Court of Common Pleas, Domestic Relations Div., 227 F.3d 627, 637 (6th Cir.2000). The panel did not reach any question concerning whether Congress had authority under the Due Process Clause to require accommodation of the disabled in state child custody proceedings.

On December 12, 2000, we elected to rehear this case en banc, but delayed consideration until the Supreme Court announced its decision in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955, 148 L.Ed.2d 866, decided February 21, 2001. In June of 2001, the en banc court heard oral argument. In Garrett, the Supreme Court, 5 to 4, held that the Eleventh Amendment bars federal employment discrimination suits against a state based on disability, as authorized by Title I of the Americans with Disabilities Act. The Court, noting that the Title I legislation is limited to employment discrimination against the disabled, said that “the scope of the constitutional right at issue” is simply “equal protection.” Id. at 963, 121 S.Ct. 955. Title I does not encompass claims based on substantive rights under the Due Process Clause, and therefore the scope of the constitutional right Congress is enforcing does not go beyond equal protection liability. The Court then held that Section 5 of the Fourteenth Amendment does not give Congress the power to enforce the Equal Protection Clause by authorizing federal employment discrimination suits against states based purely on disability. Like Judge Ryan’s opinion for the panel in this case, the Court reasoned that under equal protection principles, disability — unlike race — is not a “suspect category” and does not deserve “heightened scrutiny.” Therefore, States may make reasonable employment decisions on the basis of disability. Title I of the Disabilities Act, which addresses discrimination in employment based on disability, may only trigger “minimum rational-basis review,” id., and Congress may not enforce the Equal Protection Clause by creating a higher standard of liability and enforcing it against the states in federal court. Sovereign immunity under the Eleventh Amendment forbids heightened state liability in federal courts in disability claims because such claims have never before received more constitutional protection than rational basis review. The Court held that Title I is not “congruent” with the Equal Protection Clause because it greatly expands “discrimination” liability by adding a very large new suspect class of plaintiffs. Id. at 967-68. Thus the Supreme Court followed the same line of reasoning constraining congressional enforcement of the Equal Protection Clause as the panel of this Court suggested in its opinion in this case. It is clear after Garrett that congressional authority under section 5 to enforce the Equal Protection Clause is limited and will not sustain the Disabilities Act as an exception to Eleventh Amendment state immunity.⁴

II. Title II Appropriately Enforces The Due Process Clause

The Supreme Court indicated, however, that Title II of the Disabilities Act is different from Title I. Although the Court had granted certiorari to consider the appropriateness of Title II as an exception to Eleventh Amendment immunity, the majority in Garrett reserved judgment on the validity of Title II under Section 5. It concluded that Title II, dealing with “services, programs, or activities of a public entity,” rather than employment, “has somewhat different remedial provisions from Title I” and is not controlled by the Court’s decision restricting equal protection claims against states. Id. at 960 n. 1. Title II, unlike Title I, encompasses various due process-type claims with varying standards of liability and is not limited to equal protection claims. In addition to briefly noting differences between the two titles, the Court in Garrett also noted that Section 5 allows Congress to prohibit a “broader swath of conduct” than the courts have themselves identified as unconstitutional. Id. at 963.

In Garrett, the Supreme Court advised the lower federal courts that “the first step” in reconciling the Eleventh Amendment with legislation adopted under Section 5 is “to identify with some precision the scope of the constitutional right at issue” that Congress is “enforcing,” and to define the “metes and bounds” of that particular right.” Id. at 963-64. Obviously, standards of constitutional liability differ depending on the nature of the constitutional right in question. In the case before us, the essential constitutional right sounds most clearly not in equal protection but in due process. The general claim is that the state court in a child custody proceeding denied the partially deaf plaintiff a reasonable way to participate meaningfully in the proceeding so that he could assert his child custody rights. He was, he claims, “excluded from participation in” the proceeding — to use the precise words of Title II. In defining the “metes and bounds” of the constitutional right before us, we must consider whether plaintiffs due process-type claim to participate fully in the hearing in his child custody suit is an exception to Eleventh Amendment immunity.

The Supreme Court has recognized the special nature of parental rights and has consequently imposed special due process guarantees so that states may not lightly terminate parents’ relationships with their children. The procedural guarantees that the Court has previously had an occasion to discuss include the requirements that states provide indigent parents with court-appointed counsel during certain parental rights hearings, Lassiter v. Department of Social Servs., 452 U.S. 18, 30, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (noting that courts have “generally held that the State must appoint counsel for indigent parents at termination proceedings”); utilize a “clear and convincing” evidentiary standard when considering the termination of parental rights, Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); and provide indigent parents, free of charge, with the trial records necessary for proper consideration of appeals challenging termination of their parental authority, M.L.B. v. S.L.J., 519 U.S. 102, 128, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). Cf. Little v. Streater, 452 U.S. I, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981) (striking down Connecticut’s requirement that indigent defendants bear the cost of paternity tests if taken at the indigent’s request). In fact, although the Court has issued a number of divided opinions in deciding these questions, it has unanimously agreed that “the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment.” Santosky, 455 U.S. at 774, 102 S.Ct. 1388 (Rehnquist, J., dissenting).

In Lassiter, the Court said that state termination or alteration of parental rights requires procedural safeguards under the Due Process Clause in order to insure “the accuracy and [justice] of the decision,” 452 U.S. at 27, 101 S.Ct. 2153, and in order to avoid “the risk that a parent will be erroneously deprived of his or her child.” Id. at 28, 101 S.Ct. 2153. Thus the appointment of counsel for indigent parents may be required in complex judicial proceedings that may include the need for “[e]xpert medical and psychiatric testimony, which few parents are equipped to understand.” Id. at 30, 101 S.Ct. 2153. Lassiter makes it clear that in analyzing the safeguards needed in child custody proceedings, the Due Process Clause requires a balancing of “the private interests at stake, the government’s interest, and the risk that the procedures used will lead to erroneous decisions.” Id. at 27, 101 S.Ct. 2153. This broad balancing standard under due process — unlike the flat rule giving only rational basis analysis under equal protection in disability matters — is open to interpretation by Congress as well as the courts, for otherwise the Court’s admonition in Garrett that Congress may seek to deter a “broader swath of conduct than the courts have themselves identified as unconstitutional” would have no real meaning or effect. Otherwise the “congruence” required between a piece of Section 5 legislation and the specific constitutional provision enforced by the legislation would mean that Congress may only provide remedies to enforce a specific court decision. This would effectively usurp congressional authority to pass “appropriate” legislation and would give less deference to Congress than courts ordinarily give to administrative agencies in interpreting statutes.

The institutional role of Congress under Section 5 in interpreting the Fourteenth Amendment should be no less expansive than the role of the courts in interpreting statutes at common law. Congress should have at least the same power as Lord Coke described for judges in interpreting statutes in 1628:

a construction made by the judges, that cases out of the letter of a statute, yet being within the same mischiefe, or cause of the making of the same, shall be within the same remedie that the statute provideth; and the reason hereof is, that for the lawmakers could not possibly set downe all cases in expresse terms.⁵

Judges must adjudicate one case at a time and usually do not go beyond the case at hand to anticipate or rule on other fact patterns that may fall “within the same mischiefe.” Law making for future cases with different fact patterns is usually the role of the legislator, not the role of courts in a single decision on a single set of facts after a courtroom battle by adversaries. Therefore, the courts should not tie the hands of Congress under Section 5 merely to the implementation of previous court decisions. Congress should have under Section 5 at least the power that common law judges possess to enforce “the equity of the statute,” as described by Lord Coke.⁶

Here the plaintiffs due process interest is significant in that the judicial proceeding will determine the amount of time, if any, he can spend with his daughter. Failure to accommodate his hearing disability may render him unable to participate meaningfully in that determination. If he cannot understand what is happening during the custody hearing, it will be impossible for him to refute claims made against him, or to offer evidence on his own behalf. Consequently, a state’s failure to accommodate plaintiffs deafness may greatly increase the risk of error in the proceeding, precluding one side from responding to charges made by the opposing party, an essential element of our adversary system. From Ohio’s perspective, the paramount governmental interest is to insure that the State’s most vulnerable citizens are placed with the parent best suited for providing for their welfare. This interest is achieved through a proceeding that permits both parents to understand and to respond to the arguments made by their adversaries, thereby giving the judge a complete picture of each parent’s abilities to care for the child in question. At the same time, Ohio has an obvious need to administer its decisions in a cost-conscious and time-effective manner, and at some point the requested accommodations may become so expensive or onerous as to outweigh their usefulness in reaching a decision.

In legislating on the subject of disability, Congress may require states in child custody proceedings to consider (1) the “vital” and “fundamental” nature of the rights at stake in parental custody hearings, Santo-sky, 455 U.S. at 753, 102 S,Ct. 1388, (2) the fact that costs of supplying the requested accommodation are fairly low, and (3) that parties may be virtually “excluded from participation in” the state proceeding unless adjustments are made to accommodate the party’s disability. The subject matter involved in the instant case — a father seeking to force the state to provide him with hearing assistance for use in a state judicial proceeding determining his custody rights with respect to his daughter — raises obvious due process concerns which Congress has the authority to address under Section 5. Based on the Supreme Court cases concerning the process required in child custody suits, it is clear that Ohio is required to provide Popovich with some level of hearing assistance, depending on the degree of his disability, for his daughter’s custody hearing and may not retaliate against him for making such a request. As applied to the case before us, the “participation” requirement of Title II serves to protect Popovich’s due process right to a meaningful hearing. In child custody cases involving hearing-impaired parents, Congress is well within its express authority under Section 5 to require states to accommodate parental disability and to refrain from retaliation, for Congress is “enforcing” the due process right rather than “expanding” it. There is no separation of powers problem here, as in Garrett, where Congress, according to the view of the majority, failed to observe a clear rule of equal protection law. Congress has not changed the nature of the due process right or watered down the constitutional standard. The congressional “exclude from participation” standard, as applied here, certainly does not prohibit a “broader swath of [state judicial] conduct” than the Supreme Court suggests is within the congressional power under Section 5.

III. The Merits of Plaintiffs Claims under the Disabilities Act

This case, which resulted in a $400,000 damage award for plaintiff, was tried in the district court on three basic theories: (1) retaliation by the state domestic relations court against plaintiff for requesting hearing assistance and then filing an administrative complaint with the Department of Justice under the Disabilities Act in violation of 42 U.S.C. § 12203;⁷ (2) exclusion from participation in the custody case because of plaintiffs disability; and (3) discrimination against plaintiff by denying him — in the language of the district court’s jury charge — “an equal opportunity ... to enjoy the benefits of a service conducted by the public entity [the state court]” and “the opportunity to participate equally in the proceeding pending before the court.” Popovich v. Cuyahoga County, No. 98^4100 (N.D.Ohio), charge to jury, April 3,1998, trial transcript at 770.

We reverse and remand the case for a new trial because the charge to the jury appears to permit the jury to find in favor of the plaintiff if it finds discrimination against him or exclusion from public proceedings based on equal protection principles. After Garrett, this is an impermissible basis on which to base federal jurisdiction under the Eleventh Amendment or a verdict and damages against a state court under the Disabilities Act. Garrett, however, does not foreclose a trial and verdict based on retaliation or unreasonable exclusion from judicial proceedings based on disability in a due process-type claim. We believe that the facts presented in the court below raise jury issues on the retaliation and exclusion claims.

The trial in the district court that resulted in the $400,000 damage award consisted of ten witnesses presented over four days. Much of the testimony described plaintiffs custody dispute over his daughter and the initial ex parte hearing in August 1992 that led to a state court order transferring custody of his daughter to her mother. This testimony about the custody dispute and the initial ex parte hearing is relevant only to the extent that it provides the context or background in which the facts concerning retaliation and exclusion were presented. On the retaliation claim, Mr. Thomas Kondzer, plaintiffs lawyer during the custody dispute and hearings held in 1992, testified that his client was presented with an “option” in December of 1992 by the presiding judge of the custody proceeding that required plaintiff to either give up his rights under the Disabilities Act or suffer a delay in the adjudication of the custody ease. Testimony of Thomas Kondzer, Mar. 31, 1998, trial transcript at 173. Mr. Kondzer testified that the waiver “wasn’t a waiver for that day. It was a total waiver.” Id. at 243. According to Mr. Kondzer “the option was to withdraw the motion [for closed-captioning or real time transcription], waive your rights under the ADA and proceed today” or have the proceeding postponed. Id. With Mr. Kondzer’s advice, the plaintiff refused to waive his Disabilities Act claim or withdraw his motion. After his refusal, the hearing was then discontinued and did not resume again until the fall of 1994, over a year and a half later. In fact, the parties stipulated in the court below that the judge presiding over the custody proceeding “gave the plaintiff two options. Plaintiff could withdraw his motion for a hearing accommodation and the court could proceed today, ‘with the continued hearing’ or [the judge] could, ‘schedule a hearing to determine the extent of his hearing disability and what if any accommodation needed to be made for that’.” Stipulated Facts of the Parties, Apr. 1, 1998, trial transcript at 390-91. The long delay in the proceedings then ensued.

At a pretrial conference held on February 2, 1995, the new judge assigned to the case presented plaintiff with a proposed stipulated order in which one of the provisions was that plaintiff would agree to waive any objection to or appeal of “this proceeding” and “any prior proceedings on the basis of Joseph Popovich’s hearing disability.” Def. Ex. B-5; Testimony of Judge Anthony Russo, Apr. 2, 1998, trial transcript at 439. Again, plaintiff, with the advice of his attorney, refused to sign the proposed order.

These facts raise a viable jury issue of retaliation. The jury, based upon these facts, would be entitled to find that forcing Popovich to choose between going forward with the custody hearings and waiving his disability claim — and then upon his refusal to waive, discontinuing the proceedings for a year and a half — could constitute retaliation in violation of § 12203.

These same facts concerning the long delay in the custody case based on plaintiffs refusal to waive his disability claims, plus the claimed refusal of the state court to provide plaintiff with closed captioned translation of the proceeding, or other forms of hearing assistance, may constitute an unreasonable exclusion of plaintiff from participation in the proceeding under principles of due process of law. The case may be retried on both theories of liability under the Disabilities Act.⁸

Hence, the plaintiffs claims based on equal protection type principles of discrimination are foreclosed, as stated above, and the jury verdict of $400,000 is set aside and the case remanded for retrial on the retaliation and unreasonable exclusion from participation claims.

1 . The Eleventh Amendment provides as follows:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), gives a brief history of its interpretation.

2 . The pertinent provisions of the Fourteenth Amendment are as follows:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

3 . Laurence H. Tribe, American Constitutional Law § 5-16 (3d ed.2000); Evan H. Caminker, Symposium: Shifting The Balance of Power? The Supreme Court, Federalism, and State Sovereign Immunity: "Appropriate” Means-Ends Constraints on Section 5 Powers, 53 Stan. L.Rev. 1127 (2001).

4 . Judge Moore, who concurs in our opinion on due process but not equal protection, states quite clearly in her concurring opinion the problem with upholding Title II on equal protection grounds:

I recognize that a subset of discriminatory state action may be rational under the Constitution but unreasonable under Title II. In other words, Title II may 'prohibit conduct which is not itself unconstitutional and intrude into legislative spheres of autonomy previously reserved to the states.' City of Boerne v. Flores, 521 U.S. 507, 518, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) ... But Judge Moore then concludes:

However, this possibility does not necessarily mean that Title II exceeds Congress’s enforcement power under Section 5 of the Fourteenth Amendment. The Supreme Court has instructed that Congress may enact 'reasonably prophylactic legislation’ when faced with 'difficult and intractable problems!, which] often require powerful remedies.' Kimel v. Florida Bd. of Regents, 528 U.S. 62, 88, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). In enacting the ADA, Congress noted that discrimination against individuals with disabilities was 'a serious and pervasive problem,’ 42 U.S.C. § 12101(a)(2). Judge Moore's position applies to Title II

the reasoning of Justice Breyer's dissenting opinion in Garrett. But the problem in following this line of argument is that the majority of the Supreme Court in Garrett seems to have rejected this position in rejecting Justice Breyer's dissenting viewpoint. Rather, the majority of the Supreme Court appears to have established a clear rule that disability discrimination deserves only rational basis review and that Congress may not go beyond this standard under the Equal Protection Clause by imposing new liabilities on the states. This Garrett rule would appear to apply to both Title I and Title II, although the Court has not made this holding explicit as to Title II, and it is possible, though unlikely, that a majority of the Supreme Court might distinguish Garrett along the lines Judge Moore proposes in her concurring opinion.

5 . Sir Edward Coke, The First Part of the Institutes of the Laws of England § 21, at 24.b (Philadelphia, Robert H Small 1853) (1628).

6 . See John F. Manning, Textualista and the Equity of the Statute, 101 Colum. L.Rev.l (2001); William N. Eskridge, Jr., All About Words: Early Understandings of the "Judicial Power" in Statutory Interpretation, 1776 1-806, 101 COLUM. L. REV. 990 (2001).

7 . 42 U.S.C. § 12203, Prohibition against retaliation and coercion under the ADA, states in relevant part:

(a) Retaliation

No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter, or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.

(b) Interference, coercion, intimidation

It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.

8 . In response to Judge Ryan’s dissenting opinion complaining that the en banc court should not reach the Due Process Clause theory for upholding Title II, we should point out that until the grant of en banc rehearing no party had a reasonable opportunity to advance this argument. In the District Court, no party advanced an Eleventh Amendment immunity argument barring this action, and therefore no party was called upon to advance any justification for Title II based on equal protection or due process under Section 5 of the Fourteenth Amendment. Before the original panel, the State as appellant advanced no argument based on the Eleventh Amendment in its original brief and only mentioned in its last reply brief. The State’s immunity argument before the original panel was based only on an equal protection argument. The panel accepted the State's equal protection theory and dismissed plaintiff’s action even though the State waived any such argument by not raising it in the trial court or in its original brief.

Once the Civil Rights Division of the Justice Department learned that Title II was under constitutional attack before the original panel, it sought to intervene under 28 U.S.C. § 2403(a). Even though § 2403(a) grants the government a right to intervene when the constitutionality of a federal statute is attacked (the Court "shall permit the United States to intervene ... for argument on the question of constitutionality”), the panel issued a one-line order denying intervention. Thus the panel prevented the government from making any argument and reached its conclusion in the absence of any argument based on the Due Process Clause. The en banc court allowed the government to intervene, and it then filed a brief raising the due process justification for upholding Title II in this case. Moreover, Mr. Michael Kirkman of the Ohio Legal Rights Service filed an extensive amicus brief supporting the government's due process justification for Title II. We therefore believe it appropriate to reach the due process basis for upholding Title II. It is not the fault of the en banc Court, or the government, that the original panel chose to ignore the Due Process Clause as a basis for Title II.