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4-19-99
NYTimes
Pivotal Rulings Ahead: Supreme
Court to Begin Review of
Americans With Disabilities Act


Related Articles [See, I guess, the Times' home page  - pc.]
Week in Review: From Eyeglasses to Wheelchairs:
Adjusting the Legal Bar for Disability (April 18)
Issue in Depth: Supreme Court Guide
Forum
Join a Discussion on Issues Before the Supreme
Court
By LINDA GREENHOUSE

WASHINGTON-Beginning on Wednesday with a
case that some lawyers have labeled the Brown
v. Board of Education of the disability rights movement, the Supreme Court
is embarking on an unusually extensive review of a single federal statute,
the Americans with Disabilities Act.
The justices' decision to hear four disability act cases over a two-week
period reflects the fact that the full dimensions of this far-reaching
civil rights law remain uncharted even after nearly 10 years on the books.
The law has become broadly familiar for removing physical barriers in
public places and for opening the workplace to people with disabilities.
 Indeed, three of the cases do involve employment disputes, presenting the
surprisingly unsettled issue of whether a physical problem that is kept in
check through medication or compensated for by something as simple as
corrective lenses qualifies under the law as a disability.
The case scheduled for Wednesday, the first of the four, is different.
There is no easy remedy at hand for the problems facing the plaintiffs, two
Georgia women whose disabilities include mental retardation, mental illness
and brain damage. In suing the state the two women, Lois Curtis and Elaine
Wilson, sought not employment but a life outside the Georgia Regional
Hospital in Atlanta, a large state institution. Both women spent many
months in the hospital waiting for placement in a home-like environment
that their doctors said would be medically and socially appropriate but for
which there were long waiting lists.
The question in the case, Olmstead v. L.C., No.  98-536, is whether the
Americans with Disabilities Act requires a state to offer such a setting,
for example, a small, supervised group home, for people for whom such a
setting is appropriate. The federal appeals court in Atlanta ruled last
year that it does.
In the four months since the justices agreed to hear Georgia's appeal, the
case has galvanized advocates of disability rights. It pits Georgia and a
group of other states against the Clinton administration, which is
defending a regulation issued in the earliest days of the law, in President
George Bush's administration, that endorses the principle of "integration"
of people with disabilities into the wider population, to the greatest
extent possible, in the provision of public services.
At issue is Title II of the law, which applies to public services offered
by state and local governments. It provides that "no qualified individual
with a disability shall, by reason of such disability, be excluded from
participation in" or "be subjected to discrimination" by a government
program or service.
A 1991 regulation, issued by the attorney general under a congressional
directive "to issue regulations setting forth the forms of discrimination
prohibited," provides that services or programs shall be offered "in the
most integrated setting appropriate to the needs" of people with
disabilities. The regulation came to be known as the "integration mandate."
In its decision in the Georgia case last year, the 11th U.S. Circuit Court
of Appeals declared, "By definition where, as here, the state confines an
individual with a disability in an institutionalized setting when a
community placement is appropriate, the state has violated the core
principle underlying the Americans with Disabilities Act's integration
mandate."
State budgetary restrictions were not a defense, the appeals court said,
unless the cost of compliance was "so unreasonable given the demands of the
state's mental health budget that it would fundamentally alter the service
it provides."
In ruling against the state, the 11th Circuit agreed with the one other
federal appeals court to have addressed the question, in a case from
Philadelphia that the Supreme Court declined to review four years ago.
It is unusual for the Court to agree to hear a case on the meaning of a
federal law in the absence of conflicting opinions among the lower federal
courts. So disability rights' advocates were alarmed when the Court
accepted Georgia's appeal, interpreting the action as a signal that the
justices were moved by the strong states' rights tone of Georgia's petition
for review and were leaning toward overturning the appeals court's
decision.
Groups such as Adapt, a nationwide organization of people with
disabilities, lobbied and demonstrated in many of the 22 states that had
formed a coalition in support of Georgia's appeal by signing a brief as
friends of the Court. Four states later joined the coalition. But as a
result of Adapt's lobbying efforts, more than half the states had dropped
out of the coalition by the time Georgia filed its final brief, a highly
unusual turn of events.
Typical was a public statement by Michigan Solicitor General Thomas Casey,
who said that after taking a "fresh look" at the case, his state had
concluded that "Georgia's arguments are not consistent with the state of
Michigan's position as a leader in community-based mental health care."
Even after signing the final version of the multistate brief in support of
Georgia's position, some states continued to have second thoughts, and
several disavowed their position. Massachusetts officials, for example,
explained that the state's signature on the brief "has been wrongly
interpreted as a retreat by the Commonwealth from its long-standing support
of disability rights in general and deinstitutionalization in particular."
The states now in Georgia's camp are Indiana, Tennessee, Mississippi,
Hawaii, South Carolina, Montana, Nevada, Wyoming, Washington, Texas and
Colorado.
Along with Massachusetts, Minnesota and Louisiana withdrew their support
after signing the final brief. In addition to Michigan, the states that
initially supported Georgia but declined to sign the final brief were
Alabama, California, Delaware, Florida, Maryland, Nebraska, New Hampshire,
Pennsylvania, South Dakota, Utah and West Virginia.
At the same time, 58 former state commissions and directors of mental
health from 36 states, including New York, New Jersey, and Connecticut,
filed a brief in their own names, supporting homelike care as more
appropriate and effective and asking the Court not to accept Georgia's
"alarmist claims" about the impact of the 11th Circuit's ruling.
Georgia's basic argument, made in its brief to the Court, is that the
appeals court misapplied the integration regulation, which itself exceeds
the scope of the statute. In enacting the Americans with Disabilities Act,
the brief asserts, Congress did not make "a national value judgment that
the 'least restrictive treatment' must be provided to psychiatric patients,
to say nothing of imposing on the states the massive and indeterminate
fiscal burdens that would follow such a decision." Simply "requiring a
person to wait her turn for a community placement" is evidence of fiscal
constraint but not of discrimination, the state says.
Emphatic as the state is in making its argument, the other side speaks
fervently of the case as the ultimate test of the statute's meaning and
identity as a civil rights law, "the Brown v. Board of Education for
disability rights," in the words of Stephen Gold, a lawyer representing
Adapt and other disability groups.
In an interview, Gold, of the Public Interest Law Center of Philadelphia,
said people with disabilities had long faced segregation reminiscent of the
segregation based on race. "If the Americans with Disabilities Act did not
mean to end unnecessary segregation, then all the work we did in
promulgating it as a civil rights statute is a sham," he said. "We're just
trying to get people out of institutions who don't have to be there."
The two plaintiffs, having won their lawsuit, have been living successfully
in the community, Ms. Curtis in a three-person group home and Ms. Wilson in
an apartment of her own with supportive services. Both are planning to
attend the Supreme Court argument.
Before the month ends, the Court will hear the three other disability act
cases, which all raise the question of how to define the disabilities that
bring a person within the law's protection.
The plaintiff in Murphy v. United Parcel Service, No.  967-1992, to be
argued on April 27, is a truck driver whose high blood pressure is
controlled with medication.  He sued under the disability law after his
employer dismissed him, and is now appealing a ruling by the 10th Circuit
Court of Appeals in Denver. The court, viewing his condition in its
medicated state, concluded that he was not a person with a disability and
was not entitled to sue.
On April 28, the Court will hear Sutton v. United Air Lines, No.  97-1943,
a similar case in which twin sisters, both nearsighted but with vision
correctable to 20/20, were denied jobs as pilots because they did not meet
the airline's requirement for uncorrected vision. The same appeals court in
Denver held that they had no basis for a lawsuit because their correctable
vision was not a disability. In both cases, the question is whether a
disability should be assessed in its "mitigated" or uncorrected state.
The final case, Albertsons v. Kirkingburg, No.  98-591, also scheduled for
April 28, presents the somewhat different situation of a truck driver who
sees out of only one eye but whose brain has compensated for the
deficiency. The 9th Circuit Court of Appeals in San Francisco, concluding
that he sees adequately but in a "different manner" from most other people,
found him to be disabled and therefore entitled to sue the employer that
dismissed him. The employer is appealing.



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