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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