January, 2000 EXTRA

The 8th Circuit and ADA Title II

by Heather De Mian

from The Whole Story, Vol. 21, No.3, Fall 1999 The Whole Person, Inc.,
301 East Armour Blvd., Ste. 430 Kansas City, MO 64111

Courts renew attack on ADA; say Title II 'unconstitutional'.

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"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced by or prosecuted against one of the United States, by citizens of another State, or by Citizens or Subjects of any Foreign State."

--11th Amendment, United States Constitution

 

The 11th Amendment to the United States Constitution, written in 1789, provides immunity to states from being sued for violations of Federal Law by citizens of other states. It does not say anything about immunity from suits by a state's own citizens. Unfortunately, the Supreme Court has [at least] twice (Hans, 1890; Atascadero, 1985) ruled otherwise.

It is this history of flawed interpretation of the Eleventh Amendment that has fueled the recent 8th Circuit Court of Appeals decisions that have ruled Title II of the Americans with Disabilities Act (ADA) of 1990 (Alsbrook, 7/23/99) and Section 504 of the Rehabilitation Act of 1973 (Bradley, 8/31/99) to be unconstitutional in seven states including Missouri.

Basically what this means is that any Title II or 504 lawsuit filed in court in Missouri right now will automatically be thrown out of court. You still have civil rights protections under ADA's Title I (employment) and Title III (public accommodations), for the moment anyway.

So you can file [a lawsuit] against a fast food place that is in violation, but you can't file [a lawsuit] against the City for the inaccessible sidewalks to get there, even though your taxes paid for them.

What else does this mean to Missourians with disabilities? A waiting game.

We wait for Bradley and Alsbrook to go to the Supreme Court. At this point in time, neither has been accepted by the Supreme Court yet.

However, we may have insight as to their outcome by following Kimel v. Florida Board of Regents, an 11th Circuit case brought under the Age Discrimination in Employment Act (ADEA) against the State of Florida. The 11th Circuit ruled ADEA violated the Eleventh Amendment. The Supreme Court in Washington heard Kimel's oral arguments on October 13, 1999. The outcome of Kimel in the Supreme Court will give us a good idea of what we can expect from Alsbrook and Bradley.

If Kimel goes the wrong way, we could be looking at an apocalyptic effect on all federal civil rights laws that affect minorities and women, including the ADA, the Rehab Act, the Individuals with Disabilities Education Act (IDEA) of 1975, the Equal Pay Act of 1963, the Pregnancy Discrimination Act of 1993, and the Civil Rights Act of 1964.