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Re: Dkt. No.

ORDER DENYING MOTION TO DISMISS

The motion to dismiss is denied.

The Superior Court argues that Title II of the ADA does not constitute a valid Congressional abrogation of Eleventh Amendment immunity as applied to this case, because the conduct alleged to violate the ADA does not also violate the Fourteenth Amendment. But in Tennessee v. Lane, 541 U.S. 509, 533 , 124 S.Ct. 1978 , 158 L.Ed.2d 820 (2004), which the Superior Court inexplicably failed to cite in its motion, the Supreme Court held that Title II, as applied to cases implicating the right of access to the courts, is “a reasonable prophylactic measure” that may validly proscribe conduct beyond that which directly violates the Constitution. See also id. at 531 , 124 S.Ct. 1978 (“Title II unquestionably is valid § 5 legislation as it applies to the class of cases implicating the accessibility of judicial services”); id. at 533-34, 124 S.Ct. 1978 (“Title II, as it applies to the class of cases implicating the fundamental right of access to the courts, constitutes a valid exercise of Congress’ § 5 authority ... ”). This is a case “implicating the fundamental right of access to the courts,” and therefore…