According to this, Alito would allow discrimination on the basis of anything including disability: from The Progress Report: SUPREME COURT Samuel Alito's America:

The right wing demanded the withdrawal of Harriet Miers so she could be replaced with a judge who met their rigid, ideological litmus test. This morning, the conservatives got what they wanted. President Bush will nominate Third Circuite Appeal Court Judge Samuel Alito as the replacement for swing-voter Sandra Day O'Connor. (In contrast, John Roberts replaced the very conservative William Rehnquist.) On NBC's Today Show, law professor Jonathan Turley said there "will be no one to the right of Sam Alito" on the Supreme Court. Alito's record supports Turley's view. His history of right-wing judicial activism will be a key issue during his hearings.

ALITO WOULD OVERTURN ROE V. WADE:... ALITO WOULD ALLOW RACE-BASED DISCRIMINATION ... [Bray v. Marriott Hotels, 1997]

ALITO WOULD ALLOW DISABILITY-BASED DISCRIMINATION: In Nathanson v. Medical College of Pennsylvania, the majority said the standard for proving disability-based discrimination articulated in Alito’s dissent was so restrictive that “few if any…cases would survive summary judgment.” Summary judgment allows a case to be dismissed before it goes to trial. [Nathanson v.Medical College of Pennsylvania, 1991]

ALITO WOULD STRIKE DOWN THE FAMILY AND MEDICAL LEAVE ACT ... ALITO SUPPORTS UNAUTHORIZED STRIP SEARCHES: ... ALITO HOSTILE TOWARD IMMIGRANTS...

The People for the American Way web site provides and overview of Alito's record. The overview includes summaries of three disability cases, including Nathanson v. Medical College of Pennsylvania, which was cited in an earlier comment. http://media.pfaw.org/stc/AlitoPreliminary.pdf [ accessible html version ]

MEDIA ADVISORY:

DISABILITY ORGANIZATONS TO ANNOUNCE OPPOSITION TO JUDGE SAMUEL ALITO

WHO:
ADA Watch/National Coalition for Disability Rights, Alliance of Disability Advocates, Bazelon Center for Mental Health Law, Disability Rights Education and Defense Fund, National Council on Independent Living, World Association of People with Disabilities, and others

WHAT:
Disability organizations will announce their opposition to the nomination of Third Circuit Court of Appeals Judge Samuel Alito to replace the retiring Sandra Day O'Connor as an Associate Justice on the US Supreme Court. A report will be presented on Samuel Alito's Record on Disability Issues.

WHEN:
Wednesday, December 14th at 11 AM

WHERE:
LBJ Room, S-211 in the Capitol.

FOR MORE INFORMATION CONTACT:
Jim Ward, Founder and President
ADA Watch/NCDR
202-415-4753
jimward@adawatch.org

BACKGROUND:

Samuel Alito’s Record on Disability Issues by Bazelon.org:
Samuel Alito, President Bush’s nominee to replace Justice O’Connor on the Supreme Court, presents grave concerns for people with disabilities. Having sat on the Third Circuit Court of Appeals for 15 years, Judge Alito has a record of decisions that make very clear the threat he poses to disability rights.

I. Judge Alito Would Restrict Congress’ Power to Enact Disability Rights Laws
Perhaps the most troubling aspect of Judge Alito’s record is his narrow interpretation of the powers that authorize Congress to pass civil rights laws, including the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, the Fair Housing Amendments Act, the Family and Medical Leave Act (FMLA) and other laws of importance to people with disabilities. His rulings demonstrate cramped views of Congress’s powers that would put critical disability rights laws at risk.

Justice Sandra Day O’Connor, whose seat on the court Alito is nominated to fill, was frequently the pivotal vote in cases about Congress’ power to pass the ADA, the FMLA and other important laws. If Judge Alito is confirmed, there is every reason to expect that many important decisions about federal power would come out differently—against people with disabilities. His record suggests he would become the critical fifth vote to strike down portions of these laws as unconstitutional.

Restricting Congress’ Fourteenth Amendment Power
Judge Alito has demonstrated a narrow view of Congress’ power to pass civil rights laws to enforce the Fourteenth Amendment’s guarantees of equal protection, due process of law, and other critical rights.

He ruled that Congress did not have the power under the Fourteenth Amendment to enact the FMLA’s guarantee of up to 12 weeks of unpaid leave for personal illness.1

In a similar case involving the FMLA’s guarantee of unpaid leave to care for a sick family member, the Supreme Court upheld Congress’ power to enact this provision.2 Judge Alito gave Congress significantly less leeway than the Supreme Court did. A majority of the Supreme Court, including Justice O’Connor, held that the FMLA’s entitlement to a certain amount of leave time, applied equally to men and women, was an appropriate response to a history of gender discrimination in leave policies. Judge Alito, on the other hand, stated that the FMLA was not an appropriate response to gender discrimination because its entitlement to leave time “does much more than require nondiscriminatory sick leave practices.” 3
Restricting Congress’ Commerce Power
Judge Alito’s decisions also demonstrate a very narrow reading of Congress’ power to legislate under the Interstate Commerce Clause. Congress used this power, together with its Fourteenth Amendment power, to pass the ADA.

In a case where the Third Circuit ruled that Congress had the power to ban the possession of machine guns, Judge Alito dissented. He stated that, in banning machine guns, Congress went beyond its power to regulate interstate commerce. 4

Judge Alito’s dissent is based on an extremely restrictive view of Congress’s power to regulate interstate commerce. He argued that Congress could not ban the possession of machine guns if the guns were not being taken across state lines. A majority of the court concluded that the ban on machine gun possession was a necessary part of a larger regulatory scheme, and that the possession of machine guns had a substantial effect on interstate commerce. Judge Alito complained, however, that the majority’s theory was so broad that it would convert Congress’ commerce power into “a plenary police power.” 5

The arguments rejected by Judge Alito were precisely the arguments relied on by the Supreme Court recently in upholding Congress’ authority to regulate possession and cultivation of marijuana within states.6 . The Supreme Court held that Congress could regulate marijuana even if it did not cross state lines and was not bought or sold but simply grown for personal use. The Court recognized that the regulation of marijuana even within states was an essential part of a larger regulatory scheme, and that Congress could regulate purely local activities as long as they were part of a larger class of activities that substantially affected interstate commerce. 7
Thus Judge Alito has taken a much more restrictive view of Congress’ powers to legislate under both the Fourteenth Amendment and the Commerce Clause than the Supreme Court has. His views create cause for grave concern about the future of the ADA and other disability rights laws. Democrats and Republicans alike have expressed concerns about recent constitutional challenges to the ADA and the Supreme Court’s role in determining those issues. It is critical that the new Supreme Court Justice be someone who will respect Congress’ authority to enact needed protections for people with disabilities.

II. Community Integration
Judge Alito voted to rehear one of the most significant victories for people with disabilities in the Third Circuit —a decision requiring Pennsylvania to stop unnecessarily institutionalizing individuals with disabilities who were capable of living in the community and to provide them with appropriate community-based services. This decision, Helen L. v. DiDario8, interpreted the ADA’s “integration mandate” to ban unnecessary institutionalization even before the Supreme Court interpreted it similarly in Olmstead v. L.C. . Pennsylvania had argued that unnecessarily institutionalizing individuals with disabilities was not discrimination.

After Pennsylvania lost, it asked the full court to rehear the Helen L. case. It argued again that unnecessary institutionalization was not discrimination. Judge Alito was one of the judges who voted to rehear the case. However, there were not enough votes to rehear and the ruling was allowed to stand.

While we cannot know exactly what Judge Alito’s reasoning was, his vote to vacate and rehear one of the most important victories for people with disabilities does not bode well.
III. Restricting Enforcement of Rights
Judge Alito’s rulings indicate a troubling pattern with respect to the ability to enforce critical rights for people with disabilities.

Restricting Medicaid Enforcement?
Judge Alito filed a concurrence in Sabree v. Houstoun,10 suggesting that future Medicaid recipients may be unable to enforce the rights that Congress gave them. Recipients had challenged Pennsylvania’s failure to provide community-based intermediate care facilities for individuals with mental retardation in accordance with its obligations under the Medicaid program. The trial court dismissed the case, ruling that Medicaid recipients had no right to enforce the requirements in the Medicaid Act that covered services must be provided promptly.

The Third Circuit reversed, finding that Medicaid recipients could go to court to enforce their right to receive covered services. Judge Alito concurred because the decision was supported by “currently binding precedent.” He noted, however, that “the analysis and direction of the District Court may reflect the direction that future Supreme Court cases in this area will take . . . .”11
Judge Alito’s contention that the Supreme Court may head in the direction of the trial court’s decision —despite Supreme Court precedent that clearly supported individual enforcement of the Medicaid rights at issue— suggests that Judge Alito has some discomfort with current Supreme Court precedent. The trial court’s decision holding that Medicaid recipients could not enforce any Medicaid rights was one of the most sweeping decisions concerning Medicaid enforcement. Judge Alito’s belief that the Supreme Court may ultimately follow the path of this decision raises serious concerns.

HUD Cannot be Required to Enforce its Own Accessibility Regulations
Judge Alito joined an opinion concluding that a federal agency could not be sued for failing to enforce its own regulations concerning accessible housing for people with disabilities. In ADAPT v. United States Dep’t of Housing & Urban Development,12 the plaintiffs alleged that HUD had not fulfilled its duty to ensure that multi-family housing was accessible and adaptable to people with disabilities, and that HUD failed to investigate complaints of inaccessible housing and take enforcement action where federally funded housing did not meet HUD’s accessibility rules. The plaintiffs noted that HUD officials had acknowledged widespread compliance problems, but refused to respond adequately. The Third Circuit affirmed the dismissal of the plaintiffs’ claims, holding that despite HUD’s failure to follow the clear guidelines in its own regulations, there was not adequate law for the court to apply to determine whether HUD violated the law.13
Ironically, the Third Circuit later ruled that individuals could not sue a housing authority for failure to comply with HUD regulations concerning accessible housing.14 Judge Alito was not involved in that case, but his decision in the ADAPT case has contributed to the catch-22 that faces people with disabilities in his jurisdiction who need accessible housing: They cannot go to court to require HUD to enforce compliance with its accessible housing regulations, nor can they go to court to bring their own action to enforce these regulations.

IV. Other Areas of Concern
Judge Alito has issued a number of other rulings that raise serious concerns for people with disabilities.

Flagging test scores permitted where individuals received testing accommodations: Judge Alito joined a decision vacating an injunction that stopped the National Board of Medical Examiners from flagging the test scores of individuals who received accommodations on their medical licensing exams due to their disabilities.15 The plaintiff had received accommodations due to his multiple sclerosis and claimed that the medical board’s practice of flagging accommodated test scores that it felt might not be comparable to other test scores subjected him to possible discrimination by internship and residency programs. These programs frequently consider candidates’ licensing exam test scores. The trial court ruled that the medical board had not shown that it was necessary to flag scores.

The Third Circuit reversed, holding that the ADA’s provisions requiring accessible testing and licensing exams did not specifically forbid the flagging of accommodated test scores. The court refused to read the general nondiscrimination provision of Title III to forbid flagging. This decision, which was joined by Judge Alito, reflects an unduly narrow reading of the ADA’s bar on discrimination. Congress meant the ADA to cover a broad range of circumstances, and did not spell out each specific practice that might be prohibited by the law. The Doe v. National Board of Medical Examiners decision would have serious consequences for people with disabilities who experience the many types of discrimination that are not explicitly spelled out in the ADA.

Woman fired immediately upon return from three weeks of hospitalization for depression and sleep disorder not covered by the ADA or FMLA: Judge Alito joined an extremely troubling opinion affirming the dismissal of an employee’s ADA and FMLA claims challenging her firing.16 Yvette Katekovich was hospitalized for approximately three weeks due to depression and a sleep disorder. Her employer was informed of the reason for her hospitalization. When she notified her supervisor that she had been cleared to return to work and would return that day, however, the supervisor told her that she was fired. The Third Circuit affirmed summary judgment for the employer on the ground that Katekovich was not a person with a disability protected by the ADA. The court did not consider whether she was regarded by the employer as having a disability.17

The court also ruled against Katekovich on her FMLA claim. The FMLA provides that an employer may not fire an employee because she has taken leave permitted by the FMLA. Here, the court ruled inexplicably that, because the employer had failed to designate Katekovich’s leave as FMLA leave, it did not fire her because of FMLA leave.18 In addition, the court ruled that Katekovich did not present sufficient evidence to show that she was able to return to work.19 The FMLA, however, puts the burden of proof on the employer to show that the employee was unable to return to work.

Zoning board not required to engage in an interactive process to accommodate developer seeking zoning approval for a facility for seniors: Judge Alito joined an opinion affirming summary judgment against a real estate developer who sought to develop a 95-bed assisted living facility for seniors.20 Among other things, the court held that the Fair Housing Amendments Act (FHAA) did not require the zoning board to engage in an interactive process with applicants requesting variances or site plan approvals as reasonable accommodations to provide equal access for people with disabilities. It concluded that an interactive process for requesting accommodations applies only in the context of the workplace, and not in the context of housing and land use.21 This decision means that only in the context of employment must affirmative efforts be made to identify possible reasonable accommodations for a person with a disability.
IV. Conclusion
Judge Alito’s nomination raises serious concerns for people with disabilities. We emphasize that decisions described here are merely highlights from Judge Alito’s long record, which includes both positive decisions and additional negative decisions for people with disabilities. The decisions described here are among the most important— and the most troubling— on disability issues. This record strongly suggests that confirming Judge Alito to the Supreme Court seat being vacated by Justice O’Connor would result in serious restrictions on the hard-won rights of individuals with disabilities.

1. Chittister v. Department of Community & Economic Development, 226 F.3d 223 (3d Cir. 2000).

2. Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003).

3. Chittester, 226 F.3d at 229.

4. United States v. Rybar, 103 F.3d 273, 286-94 (Alito, J., dissenting).

5. 103 F.3d at 291.

6. Gonzales v. Raich, 125 S.Ct. 2195 (2005).

7. Id. at 2205, 2211.

8. 46 F.3d 325 (3d Cir. 1995).

9. 527 U.S. 581 (1999). In Olmstead, the Supreme Court gave states a broader defense to integration claims than the Third Circuit had in Helen L.

10. 367 F.3d 180 (3d Cir. 2003).

11. Id. at 194 (Alito, J., concurring).

12. 170 F.3d 381 (3d Cir. 1999).

13. Id. at 384-89.

14. Three Rivers Center for Independent Living v. Housing Authority of Pittsburgh, 382 F.3d 412 (3d Cir. 2004).

15. Doe v. National Board of Medical Examiners, 199 F.3d 146 (3d Cir. 1999).

16. Katekovich v. Team Rent A Car of Pittsburgh, Inc., 36 Fed. Appx. 688 (3d Cir. 2002).

17. Id. at 690.

18. Id. at 690-91.

19. Id. at 691.

20. Lapid Laurel, L.L.C. v. Zoning Board of Adjustment of Scotch Plains, 284 F.3d 442 (3d Cir. 2002).

21. Id. at 455.

Jim Ward, Founder and President
ADA Watch/National Coalition for Disability Rights
1201 Pennsylvania Avenue, NW, Suite 300
Washington, DC 20004
Voice: 202-415-4753
Email: jim4ward@aol.com
Visit Our Website: www.adawatch.org