Third Circuit on Section 5 Basis for ADA Title II in Prison Context

Today, the Third Circuit issued this opinion in Cochran v. Pinchak. By a 2-1 vote, the panel held that Congress lacked power under Section 5 of the Fourteenth Amendment to apply Title II of the ADA to cases involving irrational disability-based discrimination in the prison context. Judge Alidsert wrote the majority opinion, joined by Judge Fisher. Judge Scirica wrote the dissent.

This decision opens up a 2-1 split in the circuits regarding the Section 5 basis for applying ADA Title II to prison conditions cases. Cert. petitions are currently pending in cases from the Ninth Circuit (in which the court of appeals ruled for the plaintiff) and the Eleventh Circuit (in which the court of appeals, like the Third Circuit here, ruled for the defendant) on that issue. (Disclosure: I'm one of the counsel for the private petitioner in the Eleventh Circuit case.)