Cover Story
The Americans with Disabilities Act's
Constitutional Crisis
by Mary Johnson
Mary Johnson edits Ragged Edge magazine.
Note to readers: The print edition of Ragged Edge, as explained below, went to press before we learned that both the Alsbrook and Dickson cases, referred to in the story below, were settled . The Court will likely take another ADA Title II case in its next session.
Readers interested in finding out the latest on this issue should check our D.R. Nation featureonline.
As Ragged Edge went to press, disability scholars, attorneys and historians were working feverishly to put together a brief to the U.S. Supreme Court in two cases against Title II of the Americans with Disabilities Act.
Although the two cases to have been heard this spring have been settled, the brief will be used when the Court takes up the matter of the constititutionality of the ADA, likely next fall.
The effort could save us our Americans with Disabilities Act. If it fails, we could lose our 10-year-old protection from discrimination by state governments. It could also be the start of dismantling our civil rights law completely.
Last summer the U.S. Court of Appeals for the 8th Circuit declared the Americans with Disabilities Act unconstitutional. The appeal, known as Alsbrook v. City of Maumelle, claims that Congress exceeded its authority in imposing the ADA without having evidence to show that the state and local governments had engaged in a historical pattern of discrimination. Another case, Florida Department of Corrections v. Dickson, also calls into question the constitutionality of Title II of the ADA.
Both cases were chosen to be heard by the U.S. Supreme Court.
"At issue is whether Congress had the constitutional authority under the Fourteenth Amendment to enact the ADA," says National Association of Protection and Advocacy Systems' Sharon Masling. The 8th Circuit wrote that "[E]xtension of Title II of the ADA to the State exceeds Congress's authority under Section 5 of the Fourteenth Amendment." The Alsbrook decision ruled Section 504, the ADA's precursor, unconstitutional as well.
"Since July 23, 1999, citizens of Missouri, Iowa, Nebraska, North Dakota, South Dakota, Arkansas, and Minnesota have had no right to file lawsuits against state entities under Title II of the ADA," says Missouri activist Heather DeMian. Those states "do not have to put in curb cuts, buy lifts with buses, or provide interpreters" -- all things required under the ADA's Title II, adds ADAPT's Bob Kafka.
"We are at risk of losing not only Title II as it applies to the states, but as it applies to all public entities." says Masling.
"If we lose these cases, the writing is on the wall, and the majority of the lawyers with whom I have spoken feel that we soon will lose all of Title II," said activist Mark Johnson.
A re disabled people "a discrete and insular minority" "faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness"? That's what the ADA's "Findings" Section says.
Congress passed the ADA "against the backdrop of our nation's other civil rights laws, and it expressly invokes Congress' 'power to enforce the Fourteenth Amendment' for the stated purposes of providing 'a clear and comprehensive mandate' and 'enforceable standards' for the elimination of discrimination against individuals with disabilities," the American Civil Liberties Union wrote in its brief to the Court last spring for the Olmstead case.
But the two cases the Court had chosen claim Congress had no evidence to show that the state and local governments had engaged in a "historical pattern of discrimination," which is why the team working the Alsbrook brief plans to "lay out historical evidence of de facto and/or de jure discrimination against people with disabilities by state and local government" (see sidebar).
Activism
"Sometimes the sky is really falling," says Bob Kafka. "Sometimes there really are real wolves at the door."
Disability activists called for vigils and rallies -- on Feb. 11 the first of these rallies kicked off in Little Rock Arkansas, on the steps of the Arkansas State Capitol. Organizers challenged local officials to sign a pledge to renew their support of the ADA.
"There is a long history of states denying us jobs, education, putting us in institutions, and basic civil rights, " said Kafka of Texas, who spoke at the Little Rock rally. "We have been denied the right to vote, serve on a jury, and live in freedom. The ADA is our civil rights law, and we challenge public officials to sign on to renew the pledge. We will fight for our rights."
Masling, who says that "states will undoubtedly be filing a brief urging the Court to find that the ADA does not apply to them," is pressing disability groups to convince state officials to stay off the states' rights brief -- and to sign onto a brief supporting the constitutionality of the ADA.
Last spring, in an push unprecedented in any civil rights movement, disability activists managed to get 19 of the 26 states that had signed "states' rights" briefs in the Olmstead case to remove themselves from the anti-rights briefs, and in some cases, sign briefs supporting the ADA's integration mandate (see, "Mayors, states support Georgia against integration" in the March/April, 1999 Ragged Edge) The Olmstead decision last June 22 was a victory for disability rights.
Law professor Bob Burgdorf, who drafted the original document that would become the ADA, maintains that civil rights laws are meant to cover everyone from discrimination. The Civil Rights Act of 1964 doesn't just protect blacks, though they were the impetus for its passage. You needn't be black to benefit from the Civil Rights Act, Burgdorf points out. He says the ADA was not set up to protect only a small group called "the disabled."
The conviction that the ADA was passed to protect only a "discrete and insular minority," though, shut out millions from the law's protection last June, when Justice Ruth Bader Ginsburg wrote in the decision on the Title I cases that people with heart conditions, monocular vision and other "minor impairments" did not deserve the ADA's protection because they were not intended to be part of that "discrete and insular minority envisioned by Congress."
The Court's "crabbed vision of the territory covered by this important law," as Justice John Paul Stevens wrote in his dissent last June, may now save us Title II.
'Purposeful unequal treatment'
The "Findings" section at the start of the Americans with Disabilities Act calls people with disabilities "a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society. . . ."
What is that "purposeful unequal treatment?" State and local laws, polices and practices from the past that:
kept people out of government jobs
forced people into institutions
prevented people from marrying or being a party to contracts
denied drivers licenses to deaf people and people with epilepsy
barred people with visible disabilities from public places ("unsightly beggar" ordinances)
kept people from serving on juries
kept people from voting in elections
Much of this, of course, is not in the past, but continues today.
There are many cases in which someone -- or a company or government body -- "discriminated against people with disabilities but were not prosecuted or were acquitted," says disability historian Paul Longmore. There have been instances of state and lower court rulings upholding discriminatory laws or "segregative practices, such as allowing public transportation systems to turn away passengers with disabilities."
The scholars' group working on a Supreme Court brief is also looking at eugenic laws, policies, and proposals on sterilization. Proposals to sterilize blind people or deaf people that never became law are as significant as proposals to sterilize developmentally disabled people that were enacted and enforced, says Longmore.
Once the Supreme Court rules on the constitutionality of the ADA, states may no longer be subject to the ADA's requirements:
State employers may be able to refuse to hire or fire people with disabilities at will, and may no longer have to provide employees with disabilities reasonable accommodations in the workplace.
Depending on the scope of the Supreme Court's ruling, states may no longer have to comply with the ADA's integration mandate or make buildings and services accessible.
People in state hospitals, nursing homes and institutions will have no way to use the ADA to get out.
State capitols, state courts, state universities won't have to have wheelchair ramps, provide interpreters or make reading material accessible
States-rights activists fight ADA
Since July, efforts have been underway by states-rights advocates in several states to get similar rulings out of other Circuit courts.
Dickson and Alsbrook are the latest in a series of cases in which states have challenged Congress' power to enact legislation regulating state conduct. Cases in over 20 states argue that the ADA is not constitutional. Before the Dickson case settled, Florida alone had 4 cases. For a list of the cases, visit the Protection & Advocacy website.
Read a legal analysis of the challenge to the ADA
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