What follows is more information about the U.S. Supreme Court's hearing of
the oral arguments in the Tennessee v Lane and Jones case. Read this to
discover what the Justices think of people with disabilities. It's not
A quote from the article about Justice Scalia: All you need is a "rational
basis" for keeping them out, Scalia points out. "It's enough that the cost
would be excessive. So saying that so many handicapped students can't get
into schools means nothing at all."
In other words, in the view of Scalia, excessive cost is a rational basis
for excluding people with disabilities from schools, from courthouses, from
voting booths, etc. He would have us believe that the United States of
America can't afford equality for people with disabilities.
We have already sacrificed many rights because we supposedly can't afford
them in our so-called "war" on terrorism. But, when our soldiers died for
these freedoms, did they ever think their sacrifice would have less value
than the cost of a ramp?
From The Slate:
Crawling up stairs at a courthouse near you.
By Dahlia Lithwick
Posted Tuesday, Jan. 13, 2004, at 4:46 PM PT
You'd have to look long and hard to find a civil rights plaintiff more
deserving of empathy than George Lane. But then you'd also have to look
long and hard to find five Supreme Court justices capable of manifesting
empathy. Today is a triumph of mean-spirited grousing at the high court,
all sung to the dolorous tune of "What do those handicapped people want
from us anyway?"
Lane was a paraplegic facing criminal misdemeanor charges for driving with
a revoked license. Since the Polk County courthouse in Tennessee had no
elevator, he was forced to crawl up two flights of stairs on his hands and
knees while court workers chuckled. He refused to crawl up again for a
subsequent appearance, or to be carried, and was arrested for failing to
appear. He sued for $100,000 under Title II of the Americans With
Disabilities Act, which provides that "no qualified individual with a
disability shall … be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity."
Tennessee claimed it was immune from suit under the doctrine of sovereign
immunity, which bars private suits against the state. It lost on that claim
in the district court and again in the 6th Circuit Court of Appeals.
The issue for the high court in Tennessee v. Lane is whether Congress
properly stripped the states of sovereign immunity in enacting Title II of
the ADA—thus allowing citizens like Lane to sue the states for money
damages when they fail to comply with the act. The Supreme Court has
already held, in a 2001 decision in University of Alabama v. Garrett, that
Congress cannot strip state sovereign immunity under Title I of the ADA.
But Title I concerned employment rights. Title II has to do with arguably
fundamental rights—like access to polling places or courts. Other courts of
appeals have split on whether Congress can strip states of sovereign
immunity when constitutional rights are burdened.
The state of Tennessee is thus in court today protesting that when Congress
enforces civil rights laws like the ADA against the states, it offends that
state's "dignity." The notion that states somehow have more "dignity" than
a man crawling up a staircase is one of the jewels in the crown of the
Rehnquist court, where over the past decade a "federalism revolution" has
exploded, immunizing states from suit in areas ranging from gender
discrimination to disability law to environmental protection.
Sovereign immunity springs from the British common law notion that the
"king can do no wrong" (sovereigns being divinely inspired), and it's
pointless to sue the king since all rights flow from him in the first
place. These ideas are as American as baseball, apple pie, and the torture
chamber. Yet still they are with us.
Under the Constitution, states are entitled to sovereign immunity under the
10th and 11th Amendments, but Congress may boss the states around under
limited circumstances (using its Commerce Clause power, its Spending Clause
power, and Section 5 of the 14th Amendment's remedial power). The Supreme
Court has set about delineating when immunity trumps Congress, and vice
versa. In a 1966 case, Katzenbach v. Morgan, Congress was permitted to do
away with state literacy tests used to keep African-Americans from voting.
But the court held in Garrett that in enacting Title I of the ADA Congress
had gone too far.
What it always comes down to, in the end, is whether the justices care
about the minority group whose rights are being violated. The court still
worries about racial discrimination, and Chief Justice Rehnquist was won
over by the plight of working mothers in last year's big sovereign immunity
case—Nevada Department of Human Resources v. Hibbs. But, sadly, the court
just doesn't seem to care very much about the disabled. It's almost fair to
say that they find the disabled annoying—at least that is the tenor of
today's session. Several disabled protestors attempt to crawl up the
Supreme Court steps this morning in solidarity with Lane. Security guards
chase them back to their wheelchairs. It is not, evidently, a violation of
the ADA to foist accommodation upon unwilling recipients.
Michael Moore (no relation to the filmmaker) is Tennessee's solicitor
general, and when Justice Sandra Day O'Connor asks what remedy state law
provides for handicapped citizens who cannot access courthouses, his
response is that state law requires buildings built after 1970 to be
handicapped-accessible, but there's no requirement that old buildings be
retrofitted. He then offers his principal argument: There is no
constitutional violation where people are denied access to courthouses. He
says that "under the ADA 'inaccessible' is a term of art. It doesn't mean
the building has a wall around it." In other words, it's only really
"inaccessible" if it's inaccessible to people like him.
Justice Antonin Scalia asks whether the constitutionality of the very
sweeping Title II—which applies to any public entity—should be decided
based on the narrow issue of access to courthouses. We will spend much of
the rest of the morning bickering over whether all of Title II can be
struck down just because the right to go to court may be impaired.
Justice John Paul Stevens asks whether it's true that in 1975 more than a
million students were barred from public schools that were not
handicapped-accessible, and whether that violates the Constitution. Moore
can't answer, but Scalia does: "You don't concede that the Constitution is
violated by not providing educational facilities to all handicapped
children?" he asks. All you need is a "rational basis" for keeping them
out, Scalia points out. "It's enough that the cost would be excessive. So
saying that so many handicapped students can't get into schools means
nothing at all." Moore agrees.
William J. Brown is the attorney for George Lane and the other Tennessee
plaintiffs. He's under the impression that the justices will be won over by
dramatic accounts of the humiliations they've faced. He is wrong. The
justices want to talk about whether this law is only constitutional "as
applied" to citizens seeking access to courthouses. Brown keeps listing off
into "quintessential elements of law ... life ... liberty. ..."
Justice Ruth Bader Ginsburg asks if the disabled have a constitutional
right of access to covered stadiums. Brown replies that as a prophylactic
matter, there might someday be a political rally at that stadium and the
disabled may want to hold up signs. Then their First Amendment rights would
be in peril. Even Ginsburg is unimpressed with this logic. Scalia is upset
that Brown is seeking any accommodation for his client at all. For him, it
was too much that the court staff offered to carry Lane up the stairs. He
should have had to ask. "He has the right that the state has to provide the
means. The means can include someone carrying him up the stairs."
Ginsburg adds, "To respect equal dignity, we have to treat some people
specially; that's what building an elevator is." Even she is sounding
curmudgeonly about accommodations. If it were easy and free to help
disadvantaged minorities, we wouldn't have needed civil rights legislation
in the first place.
Deputy Solicitor General Paul Clement has 15 minutes to argue on Lane's
side. He gets trapped in the same debate Scalia had with Brown:
Scalia starts: "It depends on what's meant by discrimination. The
handicapped not getting an elevator may not be a constitutional violation."
Clement replies that when the handicapped can't vote, that's a fundamental
right being burdened, and it should trigger strict judicial scrutiny.
Rehnquist says that voting discrimination means "a person is not allowed to
vote, as opposed to not being facilitated in being allowed to vote."
Clement sees no difference. Nor do I. When groups are systematically barred
from the polls, you have a constitutional problem whether you call it a
denial or a refusal to facilitate. But Scalia contends that being "turned
away because there is no elevator is not a constitutional violation." He
adds, "An inaccessible voting place means nothing at all. It merely means
the state didn't go out of its way to accommodate the handicapped."
You know, just like the states didn't go out of their way to integrate
schools. Who are these people?
Clement seems to be caught in Scalia's headlights, even more so when Scalia
insists that Congress cannot have aimed to solve the constitutional voting
problem by "requiring access to state-owned hockey rinks," thus launching
another five-minute discussion of whether the handicapped have some
fundamental right to accessible hockey rinks. An argument Clement wisely
fails to attempt.
Michael Moore finishes this Morning of Meanness by asserting that not only
is there no right of handicapped access to hockey rinks, but also even if
the rink were inaccessible because of a discriminatory general manager, it
would still warrant the lowest level of constitutional scrutiny. His clear
message to the handicapped: You don't matter enough to warrant meaningful
It's truly surreal to witness a court that has cheerfully accommodated its
own collective disabilities—the chief justice's bad back (he ambles around
throughout oral argument) and Justice Souter's seemingly pathological fear
of strangers (no cameras while he sits on the court)—sit utterly unmoved by
the plight of Americans who can't even fight a traffic ticket or a custody
battle for want of a ramp.