More MS news articles for May 2000
Campaign to Save the ADA
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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
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.
While Garrett only addresses the applicability of the ADA to the states,
a bad decision could lead to the Court striking down parts of the ADA altogether
in subsequent cases.
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
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.
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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.
Chair, Justice For All