pleas from such conservative notables as former President George Bush Senior and Orrin Hatch that the law be kept intact, the Supreme Court struck down the portion of the Americans with Disabilities Act which provides for monetary damages against persons with disabilities who've suffered employment discrimination on the basis of 11th Amendment "states' rights." Those suffering discrimination would still be able to sue for injunctive relief or file EEOC complaints, but this is extremely BAD news and an in-my-view TERRIBLY UNJUST. Other parts of the ADA remain, but much of Titles II and III are eviscerated by the latest states' rights decision of the Rehnquist Court. As any of you who know me are aware, I feel devastated by this decision.

        Despite pervasive evidence of disability discrimination including forced institutionalization and sterilization, deprivation of parental and educational rights and employment discrimination, Rehnquist said (erroneously) that disability discrimination is not as pervasive as racial discrimination and that the ADA's remedies were not proportional with the discrimination.  Scalia, Kennedy, O'Connor and Thomas joined in this decision.

In his dissent Breyer vehemently dissented, lamenting that, ``The court ... improperly invades a power that the Constitution assigns to Congress.'' Breyer specifically is referring to the 14th Amendment equal protection clause.

Please e-mail me when you have a chance if you are concerned with this decision and desire to find out where we can go from here to repairing the damage done to the Constitution by this grievous decision. Feel free to forward this e-mail to others concerned about disability rights. We need to make sure that this is not the end of disability rights, but the beginning of a new movement to secure them in a way that courts cannot overrule.

Daniel Davis

Daniel Davis
UC Berkeley DSU  Vice President

Wednesday February 21 12:29 PM ET
Justices Limit Disability Law
By LAURIE ASSEO, Associated Press Writer
WASHINGTON (AP) - The Supreme Court limited the reach of the Americans With Disabilities Act, ruling Wednesday that state workers cannot file employment-discrimination lawsuits against their employers under the federal disability-rights law.

The 5-4 ruling, a further cutback of the federal government's power over the states, said Congress exceeded its authority when it let state workers file claims seeking monetary damages under the 1990 law.

The federal law does not trump states' 11th Amendment immunity against being sued in federal courts, the justices said.

``We decide here whether employees of the state of Alabama may recover money damages by reason of the state's failure to comply with the (employment discrimination) provisions of Title 1 of the Americans With Disabilities Act. We hold that such suits are barred by the 11th Amendment,'' Chief Justice William H. Rehnquist wrote for the court.

The ruling in an Alabama case added to the court's series of decisions that have increasingly tipped the federal-state balance of power toward the states.
Those decisions have all featured the same 5-4 split among the justices, and that lineup was repeated in Wednesday's decision.

Joining Rehnquist were Justices Sandra Day O'Connor (news - web sites), Antonin Scalia (news - web sites), Anthony M. Kennedy and Clarence Thomas (news - web sites). Dissenting were Justices John Paul Stevens (news - web sites), David H. Souter, Ruth Bader Ginsburg (news - web sites) and Stephen G. Breyer.

Writing for the four, Breyer said, ``The court ... improperly invades a power that the Constitution assigns to Congress.''

AARP lawyer Laurie McCann said, ``We're losing a very important aspect of enforcement'' of the ADA against the states. The AARP supported two Alabama state employees who sought to sue the state.

Individuals still can file lawsuits seeking a court order without financial damages, and the federal Equal Employment Opportunity Commission can sue the states. But McCann said it was unrealistic to expect either avenue to be used in many individual cases.

In January 2000, the justices barred state workers from suing their employers in federal court under the federal Age Discrimination in Employment Act. That ruling said the law could not override states' immunity against being sued in federal court.

The ADA is perhaps best known for requiring wheelchair ramps in buildings across the country.

The law bans job discrimination against the disabled, requiring employers to offer reasonable accommodations to disabled people who are otherwise qualified to perform a job. It also bans discrimination in the provision of government programs and services.
The law was signed by former President Bush (news - web sites), who filed a court brief supporting two Alabama state employees who sued the state. Bush said the ADA let disabled people ``pass through once-closed doors into a bright new era of equality, independence and freedom.''

Wednesday's ruling reversed a federal appeals court decision that let Patricia Garrett and Milton Ash sue over alleged bias in their state jobs.

Garrett had been a University of Alabama nurse for 17 years when she took a four-month leave to undergo surgery, radiation and chemotherapy for breast cancer. When she returned, she said she was ordered to take a lower-paying job or quit.

Her lawsuit said her supervisor made negative comments about her illness. She took the lower-paying job and later retired.

Ash, a security guard for the Alabama Department of Youth Services, said his severe asthma was aggravated by the agency's refusal to enforce its no-smoking policy or repair exhaust problems on a vehicle he had to drive.

The 11th U.S. Circuit Court of Appeals (news - web sites) ruled the two could sue under the ADA, saying the law canceled the states' constitutional immunity from being sued in federal court against their will.

The Supreme Court said Wednesday the appeals court was wrong.
Rehnquist said examples offered in the case of discrimination by states ``fall far short of even suggesting the pattern of unconstitutional discrimination'' to justify legislation based on the Constitution's 14th Amendment equal-protection guarantee.
``In order to authorize private individuals to recover money damages against the states, there must be a pattern of discrimination by the states ... and the remedy imposed by Congress must be congruent and proportional to the targeted violation. Those requirements are not met here,'' the chief justice said.

In contrast, Rehnquist wrote, Congress found a ``marked pattern'' of racial discrimination by states when it enacted the Voting Rights Act in 1965.

Breyer's dissent said Congress had found about 300 examples of discrimination by state governments. ``Congress expressly found substantial unjustified discrimination against persons with disabilities,'' he said.

The case is University of Alabama v. Garrett, 99-1240.




-- Cherri (jessam5@home.com), February 22, 2001

Answers

"The federal law does not trump states' 11th Amendment immunity against being sued in federal courts, the justices said."

Fair enough on the face of it. But I would really love to know whether the Supreme Court has ever allowed any exceptions to the absolute supremacy of the 11th amendment to preclude such suits. If this is an inviolate principle that has always been upheld no matter what the challenge, then fine. The 11th is the final answer.

But that is not the case. Certain exceptions to the 11th have been allowed in the past, because of a conflict with other consitutional principles. All I see here is that the court said that discrimination is protected until it conforms to "a pattern". And it doesn't matter if 300 individual cases of discrimination are uncovered. 300 doesn't equal "a pattern", but something more like a lot of individual cases. Say what?

Since the presence of "a pattern" is the overriding key to this decision, I wonder if this opinion even bothers to define what is "a pattern", or does it just say that, like pornography, "we know a pattern when we see one?" Harrumph!

-- Little Nipper (canis@minor.net), February 23, 2001.

As a crip, I suppose I should be into this but I'm not, so there. I support most of the more obvious aspects of public accessibility and would naturally be opposed to true discrimination againsts disableds just because they are disableds. On the other hand, employers have a right to employ people who are willing and able to do a job. IMO, the employer should be required to make reasonable accomodations to an employee's disability but there is a limit.

Aye, there's the rub. Define "reasonable". For that matter define "disability". In the early 90s when ADA was coming on-line, some of the advocates claimed there were 43 million disableds in the USA. This must have been a very loose definition of disability since there obviously aren't that many crips around.

Just as in every cause, there are people who make their living by "helping" the subject group, in this case the disabled. There are bureaucrats, social workers, architects, contractors, craftsmen, therapists, equipment manufacturers, retailers and lawyers and lawyers and lawyers. When is enough enough? People will disagree. Don't make this into a good/evil scenario.

It sounds like disability may be a personal issue in your family Cherri. I would be interested to know in what way? If you ever want to communicate directly, my email is real.

-- Lars (larsguy@yahoo.com), February 23, 2001.

My youngest brother is disables. He is spastic. He "got" cerebral Palsy at birth because the Doctor wanted to go on vacation and induced labor in my mother along with 4 of her friends. As he had not "dropped", the umbilical cord came out first, and his body cut of the blood flow to his brain, killing some of his brain cells.

Actually I agree with the thought that a disabled person should not be "given" access to anything they are not capable of just because they want it. He wanted to do the dishes, he was unable, but convinced the baby-sitter he did it all the time. After breaking a bunch of dishes she finally stopped him. But as with any form of discrimination, if a person has the ability to do something, they should not be denied the "opportunity" to do it just because of their "difference".

But they should also not use their "difference" as an excuse for their actions, behavior or to get away from responsibilities either.

I am not concerned because of my brother, he enjoys a lot of freedom he would otherwise be denied due to the ADA. We have wheelchair accessible busses, sidewalks have wheelchair slopes, stores and businesses, ball parks and theaters.

My concern is that by this ruling is the beginning of "rolling back" these accessible requirements.

This is just one of the many areas of progress that we appear to be in danger of loosing.

-- Cherri (jessam5@home.com), February 23, 2001.

I don't have a reference right now, but I remember a couple of years ago, it was realized that when they enacted the ADA, they left it so "wide open" that loopholes (the size of chasms, apparently) were being utilized for "less-than-noble" reasons.

I don't know if any of the loopholes were closed, or even explained/defined in the legislation.

I can tell you that thirteen years ago (and this was pre-ADA), my ex-roommate got out of rehab (drug and alcohol addiction) and was told she was considered "disabled". Sorry, but this was BS as far as I was concerned; there was absolutely nothing wrong with her aside from her addictions (which were bad enough). But does that warrant special parking privileges? Half-price fares on public transportation? Not in her case it didn't (IMO).

Perhaps that's where they got the figure of "43 million", Lars.

-- (PatriciaS@lasvegas.com), February 23, 2001.