In a message dated 2/13/03 11:14:49 AM Pacific Standard Time, Tamar40 writes:
> Written with the advisement of disability rights attorneys
>
> LIES AND HALF-TRUTHS
>
> California Attorney General Bill Lockyer has issued the statements below (
> italicized) in response to criticism for his decision to appeal the Medical
> Board v Hason case to the U.S. Supreme Court. This is a response to his
> statements.
>
> Background. The U.S. Supreme Court will hear arguments on the Medical Board
> case March 25, 2003. The arguments will center on the question: Is Title II
> of the Americans with Disabilities Act (ADA) a valid abrogation of the 11th
> Amendment? (Title II is the portion of the ADA which governs states and
> local governments.) In plain speak, the Supreme Court will rule whether or
> not the federal government has the right to tell state governments that
> they must stop discrimination against people with disabilities or whether
> the 11th Amendment which says no one can sue states in federal court
> overrules the federal right to do that.
>
> Those familiar with this Supreme Court and their previous rulings on the
> ADA have no doubt that the decision will be against the ADA and for the
> 11th Amendment. The only question is to what degree the Supreme Court will
> rule against the ADA. Their ruling may be limited to only a portion of
> Title II or it may rule the entire Title II is unconstitutional. In either
> case, the Supremes may rule either that people with disabilities may not
> receive money damages or they may rule that they can’t receive compensatory
> damages or injunctive relief either. (Injunctive relief means that the
> state being sued has to stop its discriminatory action.) However the
> Supreme Court rules, states will no longer have an incentive to cease
> discrimination against people with disabilities.
>
>
> AG Statement: "Attorney General Bill Lockyer is a strong advocate for the
> Americans with Disabilities Act."
>
> Response: What has Bill Lockyer done to enforce the ADA? Nothing. What has
> Bill Lockyer done to enforce California laws protecting the rights of
> people with disabilities? Nothing. Bill Lockyer has not brought one law
> suit anywhere against any state agency or local government for
> noncompliance with the ADA or California civil rights laws for people with
> disabilities.
>
> "As Attorney General, Lockyer created the state's first-ever Civil Rights
> Enforcement Unit and filed friend-of-the-court briefs defending the ADA
> from attack."
>
> The attorney general filed one friend-of-the-court brief on behalf of the
> ADA which is what he should do if he is to keep his campaign promises and
> respect the Democratic Party platform.
>
> "The Attorney General supports the right of individuals to sue the State of
> California, other governmental entities and private businesses when they
> have been unlawfully discriminated against because of their disability.
> However, the Attorney General believes that private individuals who believe
> they have been unlawfully denied a vocational or professional license may
> not sue the state for money damages in federal court under the ADA. The
> Attorney General believes there are other remedies available for victims of
> disability discrimination, such as seeking a court order directing the
> Medical Board to reconsider granting a medical license or seeking monetary
> damages under the many appropriate California anti-discrimination laws."
>
> The AG is misleading the public here in several ways. He is belittling the
> impact of having the ADA declared unconstitutional as it relates to
> compensatory damages for persons discriminated against by the state. The
> reality, as the AG very well knows, is that being forced to pay
> compensatory damages is the major incentive to make states avoid and stop
> discriminatory actions.
>
> Furthermore, the AG very well knows that the U.S. Supreme Court has stated
> that it is taking the appeal of the Medical Board v Hason case in order to
> study the constitutionality of the entire Title II of the ADA. He knows
> that the court is not limited and will not limit themselves to ruling on
> licensing boards only.
>
> Even if the supreme court limited its decision to licensing boards only
> (which it won’t) and even if the court only denies people with disabilities
> the right to receive compensatory damages, the impact on the lives of
> people with disabilities will be horrendous. There are many professions
> which require licensing. Examples of the professionals who will be affected
> are cosmetologists, mattress makers, counselors, teachers, childcare
> workers, landscapers, architects, physicians, building contractors,
> Realtors, engineers, nurses, therapists, pest inspectors, firefighters,
> police, attorneys, accountants, acupuncturists, massage therapists, auto
> mechanics, funeral directors, hearing aid dispensers, veterinarians, to
> name just a few. Here are some examples of what will happen to people in
> these professions:
>
> Examples: a. A deaf person is denied a childcare license because she/he is
> deaf. The person will be able to sue the licensing agency which will take,
> at the minimum, several years. At the end of that time, the court may
> decide that the deaf applicant is qualified for a license, and grant
> injunctive relief, thereby requiring the state agency to grant the license.
> However, the deaf applicant will not be compensated for the loss of wages
> and other damages inflicted by the state agency.
>
> b. If a person with a speech impediment is denied effective communication
> and as a result fails to receive a professional license, that person will
> still have the right to sue the state. After several years of litigation
> the person may receive the requested communication, but will never be
> compensated for the loss of income and opportunity.
>
> A ruling that people with disabilities are not entitled to receive
> compensatory damages when they are discriminated against is no small
> matter. Because other minorities are entitled to compensation when they are
> damaged, such a ruling will establish by decreed of the highest court in
> the land that people with disabilities are an inferior class to all other
> classes.
>
> The question the U .S. Supreme Court will address in the Hason case is
> whether the 11 th Amendment bars suit in federal court against the
> California Medical Board for denial of a medical license based on an
> applicant's mental illness under Title II of the ADA. Specifically the
> issue is the forum, not the ADA in general, which Lockyer supports and
> defends.
>
> Once again, the Attorney General is deliberately misleading those concerned
> about protecting the ADA. The brief he filed with the Supreme Court very
> clearly questions the constitutionality of the ADA, as well as the
> application of the ADA to licensing boards. Furthermore, the U.S. Supreme
> Court accepted the appeal based upon the question of whether or not the
> entire Title II is constitutional. Mr. Lockyer is fully knowledgeable that
> the Supreme Court will not be limited in their review of the
> constitutionality of the ADA.
>
> It is important to understand that the outcome of the Hason case will have
> no bearing: On private suits against cities or private businesses under the
> ADA;
>
> This is true. The appeal that Mr. Lockyer filed addresses states only.
> Here, he is using the intricacies of the law to confuse those concerned
> about losing their rights. Title II covers states and local government.
> Title III covers private businesses. Saying that his appeal will not affect
> suits against cities or private businesses is like saying it won’t affect
> the price of coffee.
>
>
> On private suits seeking injunctions against state officials to require the
> state to correct its policies or practices to comply with the ADA;
>
> Mr. Lockyer is trying to say here that the U.S. Supreme Court will not rule
> that it is unconstitutional to sue states for injunctive relief. However,
> there is nothing in the 11th amendment that limits the protection of
> states. It is quite possible that the U.S. Supreme Court will rule that it
> is unconstitutional to grant injunctions against state officials. This has
> already happened at the Circuit Court level. On May 16, 2000, the Seventh
> Circuit ruled that people with disabilities cannot sue the officials under
> the Ex Parte Young Doctrine for injunctive relief to enforce the ADA. (John
> Walker v Donald N Snyder Jr., Director, Illinois Department of
> Corrections.) Thus, even the right to seek an injunction to stop state
> violations under Title II is at risk.
>
>
> On actions seeking money damages from the state for violating the ADA when
> the complaint is brought by the federal government or its agencies;
>
> It is true that the federal government will still be able to sue the state
> of California for violations of the ADA on behalf of a person with a
> disability. However, the federal government agency charged with that
> responsibility, the U.S. Department of Justice (DOJ), is vastly
> understaffed for the enforcement of the ADA throughout the country. DOJ
> accepts less than 5 percent of the cases submitted. When Mr. Lockyer’s
> appeal succeeds, the only way for most people in other states to stop state
> agency discrimination against them will be to go to DOJ, which is already a
> futile effort for all practical purposes today. In effect, there will be no
> way that people with disabilities in most states will be able to stop the
> discrimination they experience by state agencies.
>
> On a private individual's ability to seek damages in state court under any
> of many strong California anti-discrimination laws.
>
> It is true that people with disabilities IN CALIFORNIA will be able to sue
> the state in state court. People with disabilities in other states without
> civil rights protections will have no protection against discrimination by
> their states. Mr. Lockyer’s appeal seeks to destroy the civil rights of all
> people with disabilities in all of the U.S.
>
>
> If the State of California prevails in the Hason case, state officials
> still could be sued in federal court for injunctive relief under the ADA.
>
> This is a repeat of what he said before. He probably wanted to make the
> list look longer.
>
>
> And individuals with disabilities still would be protected under
> California's Fair Employment and Housing Act and other state laws that
> require state buildings, facilities, programs and services to be accessible
> to persons with disabilities.
>
> Yes, and people with disabilities in other states can eat cake.
>
> Furthermore, if the entire Title II is declared unconstitutional for both
> compensatory damages and injunctive relief, there will be no requirement
> for state agencies to remove barriers to their programs, services and
> activities. For example, under the ADA as it stands now, state agencies are
> required to remove architectural barriers that would prevent people with
> disabilities from having access to state programs. This barrier removal is
> required whether or not the building is being remodeled. If Mr. Lockyer
> prevails, states will not be required to remove architectural barriers.
> There is no state law which requires such barrier removal. State laws only
> require architectural accessibility for new and remodeling construction.
>
>
>
> In summary, though Mr. Lockyer is trying to downplay the negative impact of
> his appeal on people with disabilities, he is, in fact, attacking a major
> civil rights law. People with disabilities fought for years to pass the ADA
> because most states do not have civil rights laws protecting disabled
> persons. The ADA is equivalent to federal civil rights laws that were
> necessary to end segregation in housing, education and employment, as well
> as to allow voting rights for African Americans. That he is attacking the
> civil rights of people with disabilities bespeaks either his bias against
> people with disabilities, or his bias against civil rights protections in
> general.
>
>
> HolLynn D’Lil
>
> Safe Sidewalks for All Coalition
>
>
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