-----Original Message-----
From: [log in to unmask]
[mailto:[log in to unmask]]On Behalf Of Stephanie Thomas
Sent: Wednesday, May 10, 2000 2:26 PM
To: micasa-list
Subject: More details on Garrett
From: Bob Kafka [mailto: [log in to unmask]]
Sent: Wednesday, May 10, 2000 11:46 AM
-----Original Message-----
From: Mark Johnson [mailto:[log in to unmask]]
Sent: Wednesday, May 10, 2000 9:06 AM
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.
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.
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.
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