Could high court strike down ADA protections?

Advocates are concerned that an Americans With Disabilities Act (ADA) case — currently before the Supreme Court — could lead to the elimination of many of the protections that have come about under the ADA as well as a number of other laws.

The high court will hear University of Alabama v. Garrett, which is challenging the constitutionality of the ADA. Garrett actually is two cases that were combined at the trial level. In one case, Patricia Garrett sued the University of Alabama Medical Center for demoting and then firing her as a supervising nurse after she was treated for breast cancer. In the second case, Milton Ash, who has asthma, sued the Alabama youth corrections agency for failing to accommodate him by enforcing the agency’s no-smoking rule and failing to service vehicles emitting noxious fumes that he was required to drive.

The cases are attracting nationwide attention because in both instances, the individuals sought payments from the state for violating the ADA, and the state argued that Congress did not have the power to require states to pay monetary damages for injuries caused when states violate the ADA.

"Those who are supporting Alabama say the case is just about obtaining money damages from states," Ira Burnim tells State Health Watch. Mr. Burnim is an attorney with Washington, DC-based Bazelon Center for Mental Health Law. "That’s the immediate question, but an adverse decision can have a much wider impact. At stake is half of the constitutional underpinning for Congress to require states to comply with the ADA."

A federal district court had accepted Alabama’s argument, but that decision was reversed by the 11th Circuit Court of Appeals, setting the stage for Supreme Court consideration of the case. The appeals court ruled that Congress has the power under the 14th Amendment to the Constitution to require states to pay money damages for violations of the ADA. (Passed after the Civil War, the 14th Amendment guarantees all citizens equal protection of the law and due process of law.)

The Bazelon lawyers say the state’s position may get a sympathetic hearing from the Supreme Court, which lately has been attentive to arguments based on states’ rights. Earlier this year, for example, the court ruled that Congress lacked the power to require states to pay damages for violations of the Age Discrimination in Employment Act.

Mr. Burnim says an adverse Supreme Court decision could go beyond the ADA’s protections governing public employment and eliminate all of Title II, which bans discrimination in access to public services such as education, health, mental health care, and other programs operated by states and localities. Also, while Section 504 of the Rehabilitation Act imposes similar obligations on states and localities where federal funds are involved, if the court were to rule against the ADA, it could, in a later case, declare Section 504 unconstitutional.

If all of that happens, the Bazelon attorneys say, it could have these results:

1. States would not have to comply with the ADA’s integration mandate upheld in last year’s Olmstead decision, and there would be no requirement to move people unnecessarily institutionalized in state hospitals, nursing homes, and other institutions.

2. States would not have to make their buildings and services accessible.

3. State employers could refuse to hire people with physical or mental disabilities and could fire them at will.

While states could always adopt their own laws with the same protections, Bazelon attorneys fear that many would not do so.

In its brief submitted to the Supreme Court, Alabama says it does not take lightly its assertion that Congress has exceeded its authority. "The ADA achieves a commendable objective — mandatory accommodation of the disabled — and does so at the end of a lawmaking process that is as deserving of respect as each of the state lawmaking processes that it purports to displace. But the ADA’s attempted "expansion of Congress’ powers . . . would work a reallocation of the federal-state balance that, in the end, would pose more threats to the cause of liberty than it would cure."

The state notes that while neither Title I nor Title II of the ADA applies generally to the federal government, the law says that states cannot be immune from suits under Title I and Title II and "it is this attempted abrogation that became the prologue to this dispute."

The state brief makes lengthy constitutional arguments that Congress overstepped its authority and acted illegally in allowing suits for money damages against states under ADA.

Mr. Burnim says he believes the Supreme Court has been staging cases to consider various states’ rights issues.

He points out that when the court agreed to hear the Olmstead case, it first said it would consider both the interpretation of the regulations and the constitutional support for the law but later issued an order limiting its review to the regulations. He says he believes the court first wanted to hear a case under the Age Discrimination in Employment Act before moving on to the ADA.

If the court were to throw out 14th Amendment support for the ADA, a case would soon arise asking if Congress had authority to compel state compliance as part of its regulation of interstate commerce. And if that were also thrown out, there would effectively be no ADA as applied to state governments, adds Mr. Burnim.

In addition, he warns, other disability laws such as the Individuals with Disabilities Education Act also would be at risk, and cases would likely be raised challenging them.

Bazelon attorneys say that under the Supreme Court’s current approach, the question of whether a particular civil rights statute exceeds Congress’ power largely depends on two factors:

1. whether, when the statute was enacted, there was a significant problem of unconstitutional discrimination;

2. whether the requirements of the law are proportionate and reasonable responses to the problem that Congress sought to remedy.

The Bazelon Center is coordinating "friend of the court" briefs from states and other organizations to make the argument that, contrary to what Alabama says in its brief, the ADA qualifies under both points. Mr. Burnim says there may be a significant number of states filing briefs supporting the law, since they had asked for such a national standard before the ADA was passed.

He points out, although 36 states filed briefs supporting the Violence Against Women Act, the Supreme Court still said "it was going to support states’ rights even if the states don’t want them" and threw out the law.

The National Association of Protection and Advocacy Systems is organizing a grass-roots effort to attempt to influence the filing of "friend of the court" briefs by states either supporting or opposing Alabama’s position. The association says some states will be filing a brief with the Supreme Court, urging the court to find that the ADA does not apply to them. Others, led by the state of Minnesota, will be filing a brief in support of the ADA. It calls on advocates to:

• educate disability rights advocates in their states that the threat to the ADA is real and there is a need to act;

• work in coalition with other disability rights advocates in their state;

• determine the best way to approach their state leaders in terms of the state’s politics;

• ask their state to sign on to a brief supporting the constitutionality of the ADA;

• if the state will not sign on to a brief supporting the ADA, ask state officials to at least stay neutral on the issue and not sign on to a states’ rights brief;

• take advantage of any promises for future consultation and involvement made during advocacy around L.C. v. Olmstead;

• secure a commitment from the state to continue meeting and working on disability rights issues.

Oral argument will be scheduled for this fall, and a decision should be announced early next year.

Mr. Burnim says the case has implications for the upcoming presidential election because whoever wins will appoint one or more justices to the Supreme Court who would either overturn an adverse decision or make it even harder for advocates to win on states’ rights issues.