Disability Rights Under State Constitutions 

More than 70 million U.S adults — greater than one in four — have some type of disability. Some experience temporary periods of disability, while others have disabilities for life. Most people are likely to experience disability at some point in their lives.

People with disabilities benefit from legal protections against exclusion and discrimination in many areas of everyday life, including employment, public spaces, education, and housing. But it has been 35 years since Congress passed the Americans with Disabilities Act — the last major disability rights legislation. And the U.S. Supreme Court’s 1985 decision finding that disability is not a suspect class for purposes of federal equal protection review effectively foreclosed federal constitutional law as a pathway to enhance protections for people with disabilities.

As plaintiffs turn to state constitutions to fill the constitutional vacuums created by the U.S. Supreme Court in areas like abortion and property rights, they should likewise look to state constitutions to strengthen and expand protections for disabled communities. Several states already provide stronger constitutional protections for people with disabilities than those at the federal level. Others should join them. 

The Federal Statutory Scheme

Three federal statutes form the basis for federal disability rights. The Rehabilitation Act of 1973 prohibits executive agencies, recipients of federal funding, and most federal contractors from discriminating on the basis of disability. In 1975, Congress passed the Education for All Handicapped Children Act, which guarantees children with disabilities access to public education. In 1990, Congress amended the act, renaming it the Individuals with Disabilities Education Act, and in the same year it passed the Americans with Disabilities Act, prohibiting disability discrimination in employment and public accommodations. 

Funding shortfalls and underenforcement by courts have limited the effectiveness of these protections. For example, while the Individuals with Disabilities Education Act authorizes the federal government to cover up to 40 percent of the additional costs of educating students with disabilities, it typically funds less than 15 percent, requiring states to make up the difference. This funding discrepancy seems likely to persist with the Trump administration’s dismantling of the Department of Education, as that department is responsible for enforcing federal laws that protect students with disabilities from discrimination and for distributing Individuals with Disabilities Education Act funding to the states. And while last term the U.S. Supreme Court handed students with disabilities ﷟a rare victory, making it easier to prove education-related discrimination in Americans with Disabilities Act lawsuits, federal courts have narrowly construed the statutes’ anti-discrimination principles and imposed stringent procedural hurdles on plaintiffs. 

Limited Federal Constitutional Protections

The U.S. Supreme Court has taken a minimal view of the protections that the federal Constitution affords people with disabilities. 

Typically, federal courts apply heightened scrutiny under the 14th Amendment’s Equal Protection Clause if a group has faced historical discrimination and lacks political power. Although people with disabilities regularly experience both discrimination and barriers to full and equal political participation, in the 1985 case City of Cleburne v. Cleburne Living Center, the Supreme Court held that disability is not a suspect classification warranting heighted protection under the Equal Protection Clause. When federal courts assess whether laws deny equal protection to people with disabilities, they apply rational basis review — the test most lenient to the government.

Occasionally, federal courts have used rational basis review to strike down legislation infringing on the equal protection rights of people with disabilities, including in Cleburne. However, the disability rights movement has largely moved away from federal constitutional arguments for fear of deeper retrenchment from an unsympathetic federal judiciary.

Equal Protection Under State Constitutions for People with Disabilities

The U.S. Supreme Court’s decision in Cleburne may have halted the development of federal constitutional disability rights, but that is not the end of the story. State constitutions can provide — and several already provide — a source for stronger rights for people with disabilities.

Some states have enshrined protected status for people with disabilities directly into the text of their state constitutions. For example, Connecticut’s constitution guarantees equal protection for and forbids discrimination against those with physical or mental disabilities. Litigants in the state recently sued under this provision to remedy alleged discriminatory Medicaid eligibility criteria. Similarly, Nevada’s constitution forbids denial or abridgement of rights on the basis of disability, and just last year New York voters approved an equal rights amendment that includes disability rights. Courts in these states apply heightened scrutiny when analyzing laws that discriminate against people with disabilities, reducing the burden that plaintiffs with disabilities must meet to vindicate their civil rights.

Even when state constitutions do not explicitly prohibit disability discrimination, state courts can still expand equal protection for people with disabilities beyond the floor set by the federal Constitution by recognizing them as a suspect class. For example, in 2005, the New Mexico Supreme Court declined to interpret its Equal Protection Clause in lockstep with Cleburne and extended protected status to people with disabilities. The court determined that a history of discrimination required it to apply intermediate scrutiny when people with disabilities are “discriminated against not because of a characteristic that actually prevents them from functioning in society, but because of external and artificial barriers created by societal prejudice.”

State Constitutional Voting Rights for Voters with Disabilities

Forty-nine state constitutions expressly grant the right to vote. Some explicitly guarantee voters with physical disabilities the right to cast their vote using an absentee ballot. Others require that the legislature pass laws to “provide that persons illiterate, blind, or in any way disabled may have their ballots marked or voted as herein required.”

Advocates in some states are pushing courts to go further. In a Wisconsin lawsuit currently workings its way through the courts, disability rights advocates argue that a state constitutional provision stating that “all votes shall be by secret ballot” requires the state to provide voters with disabilities an equal opportunity to vote privately and independently. Specifically, the plaintiffs maintain that voters with certain print disabilities should be allowed to vote by electronic ballot, an option currently limited to military and overseas voters. While the U.S. Court of Appeals for the Seventh Circuit previously rejected similar claims brought under the federal Constitution, state courts are not required to follow federal approaches. 

But state constitutions also curb the voting rights of certain voters with disabilities. A majority of state constitutions explicitly disenfranchise voters deemed mentally incompetent by a court or who are under guardianship. For example, Iowa’s constitution disqualifies “a person adjudged mentally incompetent to vote.” In recent years, such provisions have come under growing scrutiny for potentially violating federal law and the constitutional guarantee of equal protection.

State Constitutional Education Rights for Students with Disabilities

Public education has been a major area of state constitutional litigation since the U.S. Supreme Court determined that the U.S. Constitution does not provide a right to education. In “education funding” cases, litigants turn to state constitutional provisions entitling children to a public education to remedy deficiencies and inequalities in education funding. 

Many of these state constitutional school funding cases have sought greater funding to support students with disabilities. Earlier this year, for example, a Wyoming trial court found the legislature was underfunding its public schools in violation of the state’s constitution. Among the court’s findings was a determination that the state was not spending enough money on mental health counselors to support what the court called “special problem students.” A pending lawsuit in Kentucky claims that the state is not spending enough money on certified special education teachers in violation of the state’s constitution. 

Areas of Potential Future Litigation 

State constitutions have unique provisions pertaining to disability services that could serve as the basis for rights vindication. For example, Washington’s constitution contains a clause requiring the state to “foster” and “support” institutions for the benefit of people with disabilities. Some advocates, including a former justice of the Washington Supreme Court, have suggested plaintiffs bring litigation under this clause on behalf of people with developmental disabilities or psychiatric needs. 

Criminal justice is another area where state constitutions can provide opportunities for litigants. In a high-profile Michigan school shooting case, a juvenile defendant with fetal alcohol spectrum disorder is appealing his sentence of life without parole on the grounds that sentencing a child with an intellectual disability or equivalent to die in prison violates the state constitution’s cruel or unusual punishment clause. The Michigan Supreme Court has recently issued multiple decisions expanding the clause’s protections beyond those of its federal counterpart. 

Finally, some states, including Ohio and Wyoming, adopted “health care freedom” amendments to their state constitutions in the 2010s in opposition to the Affordable Care Act. In recent years, creative litigants have convinced state courts to construe these broadly worded provisions to protect abortion rights and transgender rights, creating a potential roadmap for future health-related disability rights litigation in the states.

• • •

State constitutions are not static historical artifacts — they are dynamic arenas where the rights of disabled people can be powerfully vindicated or quietly eroded.

To be sure, state constitutions are not necessarily more protective of disabled communities across the board. Some states continue to apply Cleburne under their state constitution’s equal protection analogue and many state constitutions still contain outdated and harmful language, like “insane” or “dumb,” that perpetuates negative stereotypes and is broadly rejected by the modern disability rights movement. But voters can support new constitutional protections as well as initiatives to update constitutional language so that it is respectful of people with disabilities, as recently seen in Nevada and Alabama.

As federal civil rights enforcement faces growing uncertainty, state constitutions offer flexible, often-overlooked pathways for disability advocates to fight for progress and justice. 

Michael Milov-Cordoba is Counsel in the Judiciary Program at the Brennan Center for Justice. Ankita Joshi, Mohamed Nur, Rachel Seplow, and Michael Weinrib are law students and interns at the Brennan Center.

Suggested Citation: Michael Milov-Cordoba, et al., Disability Rights Under State Constitutions, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Jul. 24, 2025), https://statecourtreport.org/our-work/analysis-opinion/disability-rights-under-state-constitutions