LISTSERV mailing list manager LISTSERV 16.5

Help for C-PALSY Archives

   

C-PALSY Archives

C-PALSY Archives


C-PALSY@LISTSERV.ICORS.ORG


View:

Message:

[

First

|

Previous

|

Next

|

Last

]

By Topic:

[

First

|

Previous

|

Next

|

Last

]

By Author:

[

First

|

Previous

|

Next

|

Last

]

Font:

Proportional Font

LISTSERV Archives

LISTSERV Archives

C-PALSY Home

C-PALSY Home

C-PALSY  January 2004

C-PALSY January 2004

Subject:

here is what we face in the supreme court

From:

Tamar Raine <[log in to unmask]>

Reply-To:

[log in to unmask]

Date:

Thu, 22 Jan 2004 18:42:31 -0800

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (186 lines)

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
pretty.

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?
HolLynn

From The Slate:
Off-Ramp
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
constitutional scrutiny.

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.

Top of Message | Previous Page | Permalink

Advanced Options


Options

Log In

Log In

Get Password

Get Password


Search Archives

Search Archives


Subscribe or Unsubscribe

Subscribe or Unsubscribe


Archives

December 2017
November 2017
November 2016
September 2016
August 2016
June 2016
May 2016
April 2016
March 2016
February 2016
December 2015
November 2015
October 2015
August 2015
July 2015
May 2015
April 2015
March 2015
January 2015
December 2014
November 2014
October 2014
September 2014
August 2014
July 2014
June 2014
May 2014
April 2014
March 2014
February 2014
January 2014
December 2013
November 2013
October 2013
September 2013
August 2013
July 2013
June 2013
May 2013
April 2013
March 2013
February 2013
January 2013
December 2012
November 2012
October 2012
September 2012
August 2012
July 2012
June 2012
May 2012
April 2012
March 2012
February 2012
January 2012
December 2011
November 2011
October 2011
September 2011
August 2011
July 2011
June 2011
May 2011
April 2011
March 2011
February 2011
January 2011
December 2010
November 2010
October 2010
September 2010
August 2010
July 2010
June 2010
May 2010
April 2010
March 2010
February 2010
January 2010
December 2009
November 2009
October 2009
September 2009
August 2009
July 2009
June 2009
May 2009
April 2009
March 2009
February 2009
January 2009
December 2008
November 2008
October 2008
September 2008
August 2008
July 2008
June 2008
May 2008
April 2008
March 2008
February 2008
January 2008
December 2007
November 2007
October 2007
September 2007
August 2007
July 2007
June 2007
May 2007
April 2007
March 2007
February 2007
January 2007
December 2006
November 2006
October 2006
September 2006
August 2006
July 2006
June 2006
May 2006
April 2006
March 2006
February 2006
January 2006
December 2005
November 2005
October 2005
September 2005
August 2005
July 2005
June 2005
May 2005
April 2005
March 2005
February 2005
January 2005
December 2004
November 2004
October 2004
September 2004
August 2004
July 2004
June 2004
May 2004
April 2004
March 2004
February 2004
January 2004
December 2003
November 2003
October 2003
September 2003
August 2003
July 2003
June 2003
May 2003
April 2003
March 2003
February 2003
January 2003
December 2002
November 2002
October 2002
September 2002
August 2002
July 2002
June 2002
May 2002
April 2002
March 2002
February 2002
January 2002
December 2001
November 2001
October 2001
September 2001
August 2001
July 2001
June 2001
May 2001
April 2001
March 2001
February 2001
January 2001
December 2000
November 2000
October 2000
September 2000
August 2000
July 2000
June 2000
May 2000
April 2000
March 2000
February 2000
January 2000
December 1999
November 1999
October 1999
September 1999
August 1999
July 1999
June 1999
May 1999
April 1999
March 1999
February 1999
January 1999
December 1998
November 1998
October 1998
September 1998
August 1998
July 1998
June 1998
May 1998
April 1998
March 1998
February 1998
January 1998
December 1997
November 1997
October 1997
September 1997
August 1997
July 1997
June 1997
May 1997
April 1997
March 1997
February 1997
January 1997

ATOM RSS1 RSS2



LISTSERV.ICORS.ORG

Secured by F-Secure Anti-Virus CataList Email List Search Powered by the LISTSERV Email List Manager