By: Ben Smart

Despite the Supreme Court ruling that section II of the American with Disabilities Act applies in state prisons, circuit courts have ruled that the ADA will not apply in private prisons. This hole in protection could be patched either judicially, where the exception was created, or legislatively.

Section II of the ADA protects participation in services provided by ‘public entities.’  Public entities are defined as “instrumentalities of the state.” In Pennsylvania Dept. of Corrections v. Yeskey, the Supreme Court ruled that state prisons qualify as public entities, saying “the statute’s language unmistakably includes State prisons and prisoners within its coverage.”[1] Yeskey was denied participation in ‘bootcamp’ that would have enabled him to be paroled early due to his medical history. Importantly, this bootcamp was a statutorily established program for first time offenders, which contributed to the program, and not just the prison, being found a public entity.

The standard that “state prisons and prisoners” are clearly within the ADA seems unambiguous. Despite this, the 8th, 10th, and 11th district courts have held that private prisons are not public entities or instrumentalities of the state. The origin of this reasoning is from Green v. City of New York.[2] This case held that a private hospital, who a patient was taken to by a police officer, was not a public entity. Public entities were defined by Green as traditional government units or an organization created by a governmental unit.

This reasoning was extended to private prisons by Edison v. Douberly[3] in the 11th circuit. An ADA claim was brought against a private prison, but the circuit court dismissed the case, holding that private prisons were not public entities. The basis of their reasoning was that general contractors for governments do not become liable as public entities because of their contract with the government. The 10th and 8th circuits agreed with this reasoning in Johnson v. Neiman[4] and Phillips v. Tiona[5]. These courts do not distinguish between any type of contractors, or what the contractors are doing. The case reasoning simply appears to be “if it’s a contractor, it’s not the state.”

This reasoning seems off at first glance, and the dissent in Edison clearly articulated the issue: when a contractor is acting in a manner that is only legal because its contract with the state gives it the authority of the state, then the company is functioning as a public entity. The question is not whether there is a contract, but whether there is a core function of the state that is being performed. Liability should not be avoided simply by contracting out the state’s functions and authority.

The 9th circuit may be willing to differ from the other circuits on this topic, as a district court in Montana found that private prisons are public entities under RLUIPA[6], but it did not indicate that it was necessarily contradicting the other circuit courts. No ruling has been issued on this topic by the 9th on appeal.

No case directly on this topic has been successfully appealed to the Supreme Court , and so there is no uniform law on the issue. This is ripe for appeal, the Supreme Court would be able to step in and correct the mistakes of the district courts. The States have just found a work-around to the ADA, and this gap should be closed. Of course, this issue could also be solved legislatively, as the text of the ADA could be amended to clearly include private prisons, or government contractors who fulfill certain state functions.

Ben Smart received a B.A. in Philosophy and Sociology from The University of Oklahoma, and is currently a 2L at Sandra Day O’Connor College of Law. He is particularly focused on justice in criminal and international law, and hopes be an ethical prosecutor after graduation. When not working, he enjoys messing with his dog and throwing a line in water, hoping a fish will pity him enough to bite.

[1] Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 209

[2] 465 F.3d 65

[3] 604 F.3d 1307

[4] 504 F. App’x 543

[5] 508 F. App’x 737

[6] Religious Land Use And Institutionalized Persons Act

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