For more info please contact:
Mark Johnson
Mark_Johnson@shepherd.org

The Supreme Court has decided to hear another disability discrimination case -- Garrett v. University of Alabama -- that calls into question the constitutionality of the ADA.  Oral argument most likely will occur in October, and the Court should issue its decision in early 2001.

Garrett is actually two consolidated employment discrimination cases filed against the state of Alabama -- one involving a woman with breast cancer, the other involving a man with severe asthma.  At issue in the Supreme Court case is whether Congress had the constitutional authority under the Fourteenth Amendment to enact the ADA. If the Supreme Court says Congress did not, individuals may no longer be able to enforce Titles I and II of the ADA against the states. More importantly, a negative ruling could call into question altogether the constitutionality of Title II of the ADA, as well as other disability rights statutes.

Garrett is the latest in a series of cases in which states have challenged Congress' power to enact legislation regulating state conduct.

Most recently, the Supreme Court held in Kimel v. Florida Board of Regents that Congress did not have the authority to apply the Age Discrimination in Employment Act (ADEA) to the states. The Court found that the substantive requirements of the ADEA are "disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act" and that extension of the ADEA to the states was an "unwarranted response to a perhaps inconsequential problem." In Garrett, states will be urging the Supreme Court to reach the same conclusion about the ADA.

What does this mean for people with disabilities? It means that, as early as January, 2001, individuals may no longer be able to sue state entities for violations of the ADA.  Depending on the scope of the Supreme Court's ruling:

• States may no longer have to comply with the ADA's integration mandate. People who are unnecessarily institutionalized in state hospitals, nursing homes, and other state institutions may no longer have recourse under the ADA.

• States may no longer have to make their buildings and services accessible. State capitols, state courts, and state universities, among others, may no longer have to have wheelchair ramps, provide interpreter services, or provide written materials in accessible formats.

• State employers may no longer have to comply with the ADA's mandate against employment discrimination. State employers may be able to refuse to hire and/or fire people with disabilities at will, and may no longer have to provide employees with disabilities reasonable accommodations in the workplace.

People with disabilities worked too long and too hard to enact the ADA, only to see it succumb to a "states' rights" argument. As they did in Olmstead v. L.C., and as they started to do in Alsbrook and Dickson, disability rights advocates can make a difference.  Some states will undoubtedly be filing a brief with the Supreme Court, urging the Court to find that the ADA does not apply to them. Others, lead by the state of Minnesota, will be filing a brief in support of the ADA.  Here's what you can do to help make sure your state takes the right position:
 

• Educate disability rights advocates in your state that the threat to the ADA is real and the time to act is now.  The states' rights brief in Garrett is due in early June; briefs supporting the ADA are due in early July.

• Work in coalition with other disability rights advocates in your state. Coalitions formed around Olmstead v. L.C. and Alsbrook and Dickson are a great place to start.

• Determine the best way to approach your state.  Depending on the politics in your state, consider approaching your governor, attorney general, state legislators, mental health and developmental disability directors, and other state officials with whom you have relationships, including civil rights enforcement attorneys in the state attorney general's office.

• Ask your state to sign on to a brief supporting the constitutionality of the ADA. Explain how important the ADA is to you, how the law has had a direct impact on your life, and how dismayed you are by the thought that your state would take the position that it should not have to comply with the law's requirements.

• If your state will not sign on to a brief supporting the ADA, ask your state officials to at least stay neutral on the issue and not sign on to the "state's rights" brief. It will send a powerful message to the Court if only a handful of states argue that the ADA should not apply to them.

• Do not be dissuaded by the fact that your state already may have challenged the constitutionality of the ADA in pending litigation. Governors and other state officials may be unaware and unsupportive of the litigation positions previously taken by their state attorney generals, and may be able to influence the position taken by your state in Garrett.

• Take advantage of any promises made during your advocacy around L.C. v. Olmstead. In many discussions around Olmstead, advocates were assured that they would be consulted in the future concerning similar matters. Make use of those commitments now.

• Secure a commitment from your state to continue meeting and working on disability rights issues. Even if your state signs on to a brief opposing the constitutionality of the ADA, all is not lost. Your state may feel compelled to sign on to a brief because of larger "state's rights" issues. If that happens, try to secure a commitment from your governor and attorney general that they will continue to meet and work with you on issues affecting the rights of people with disabilities in your state.

Fred Fay
Chair, Justice For All
jfa@jfanow.org
http://www.jfanow.org