ABOUT US | SUBSCRIBE | LINKS | E-MAIL EDITOR | HOME
|
|
ABOUT US | SUBSCRIBE | LINKS | E-MAIL EDITOR | HOME |
| Ragged Edge EXTRA!
|
The Supremes still don't 'get it': Gender discrimination, yes; disability discrimination, no On May 27, 2003, the U.S. Supreme Court ruled in Nevada Department of Human Resources et al. v. Hibbs et al. that state employees can sue in federal court if their rights under the Family and Medical Leave Act (FMLA) are violated. As disability rights activists -- as human beings concerned with getting and using the tools to challenge injustice -- we should applaud this decision. But we should also note the context within which it is made. This Court has been limiting the protections afforded by civil rights laws including, as Ragged Edge readers are all too aware, the Americans with Disabilities Act. It has been allowing states' 11th Amendment protections from citizens' suits in federal courts to trump citizens' 14th Amendment protections from states' discrimination. Though we should commend the Court for finally drawing the line somewhere, we should criticize it for waiting this long to draw it. Civil Rights, States' Rights Chief Justice William H. Rehnquist, writing the majority opinion in Hibbs, notes that the 11th Amendment to the U.S. Constitution means Congress ordinarily cannot authorize lawsuits against states. The states have a right to be free from too much Congressional oversight. In recent years, the Court has used states' rights to cut back on anti-discrimination protections. In fact, the Hibbs ruling is a surprise precisely because Nevada made the same states' rights argument that usually works on this Court. But 11th Amendment protections are not ironclad. Sections 1 and 5 of the 14th Amendment provide an exception -- if Congress is unambiguous about giving the people the right to sue states in federal court, and if Section 5 of the 14th Amendment (which gives Congress the power to enforce the "equal protection" guaranteed in Section 1) justifies the law that Congress passes.
Rehnquist and Justice Sandra Day O'Connor, who have voted with the majority for states' rights over civil rights in the past but who came out for civil rights over states' rights in Hibbs, believe the FMLA -- but not the ADA -- meets that standard. It is clear that Congress intended to authorize suits against states with both the FMLA and the ADA. What the justices are saying is that with the FMLA it had the authority to do that. And with the ADA, it didn't. Do you remember Board of Trustees of the University of Alabama v. Garrett? That's the one in which the Supreme Court ruled that state employees cannot take their employers to federal court when their rights under the ADA are violated. Writing for the majority in Garrett, Rehnquist claimed that the states don't have a solid enough history of disability discrimination to justify 14th Amendment action; that much of the discrimination that does exist is acceptable -- it's just good fiscal sense to hire people who fit existing facilities instead of spending money removing barriers -- and not prohibited by the 14th Amendment; and that evidence that state policies disadvantage disabled people doesn't necessarily mean there's anything wrong with those policies anyway. Explaining in the Hibbs opinion why the FMLA, a gender-discrimination law, is different from disability-discrimination and age-discrimination laws, Rehnquist writes that "the States' record of unconstitutional participation in, and fostering of, gender-based discrimination in the administration of leave benefits is weighty enough to justify the enactment of prophylactic [Section] 5 legislation." Isn't there a weighty record of the states discriminating against disabled people? Apparently not. But this account of the ADA's shaky foundation in the 14th Amendment doesn't sit well with the law's defenders. Not hardly. Congress Shall Have Power "Just as the point of the Civil Rights Act" -- which is generally understood to arise legitimately from the 14th Amendment -- "is not race but it is discrimination," says Robert Burgdorf, who wrote the first draft of the ADA, "the point of the ADA is not disability -- it is discrimination. The ADA is a mandate for equality." Reasonable accommodation and other ADA requirements are not meant to alleviate a bunch of special problems that come with being special (and not "special in a good way," either) people. Instead, they are meant to stop new and existing arrangements from piling unjust burdens onto people, and then justifying those burdens on the basis of normal human variation. But accepting those arrangements as natural and neutral and normal, as many people in this country do, means treating all the burdens and disadvantages in schooling and housing and transportation and employment and recreation that right here, right now, come with certain kinds of minds and bodies as misfortune, not injustice. So by definition, those who believe that disability discrimination is natural and neutral and normal don't believe that we should be given civil rights protection from that discrimination. Civil rights laws don't cover the consequences of floods and earthquakes; why should they cover the consequences of defective minds and bodies? And what those of us who do think disability discrimination is injustice see as legislation to dismantle that injustice looks to the discrimination-is-natural crowd like special benefits. Many courts, including the Supreme Court, says Burgdorf, are making the mistake of "treating the definition of disability under the ADA as analogous to eligibility criteria under the Social Security disability programs and special education programs. The latter types of programs are special benefits and service programs which should be restricted to the specific individuals for whom such benefits and services are intended. The ADA's protection against discrimination on the basis of disability is extended to all Americans who experience such discrimination." Once you put it that way, it's obvious. If disability rights are special benefits, you have to find a way for the gatekeepers to figure out who deserves 'em and who doesn't. And if they're special benefits doled out to special people, then it's the kind of people we are that matters, not the kind of discrimination we run into when we try to go to school or get on a bus or find a job or an apartment. But just because we can understand where they're coming from doesn't make them right. A Weighty History I'm not going to argue that there is a weighty record of the states' engagement in unjust discrimination against disabled people. Other people have made that case much better than I can here. But we must add to that work. We must make that weighty record apparent to people outside our movement. To make it clear that this is not a record of misfortune imposed by God or genes or chance, but a record of injustice imposed and sustained by human practices designating certain skills -- mastering particular bodies of knowledge by age 6, age 12, age 18; climbing stairs; having particular beliefs and emotions; reading and writing print; mastering particular social skills; communicating in speech -- as natural and normal and neutral and perfectly reasonable prerequisites for full membership in society. It is obvious that we have not done well enough at that. Clint Eastwood and the ADA Notification Act , the Garrett decision, ABC's John Stossel . . . . But Congress knew the history when it passed the ADA; the authors of briefs in support of Patricia Garrett and other ADA plaintiffs knew the history as those cases traveled through the courts; and if we have not done well enough at educating the general public, five justices on the Supreme Court have not done well enough at educating themselves. The Supreme Court's acknowledgment that the 14th Amendment justifies the FMLA is a step in the right direction. But following, as it does, a series of leaps the other way, it is not enough. Posted May 30, 2003 Cal Montgomery lives in Chicago. Besides her book reviews in the print edition of Ragged Edge magazine, her articles have included Drugging Dr. Sell and Critic of the Dawn. WHAT DO YOU THINK of what you've just read? Click to tell us.
|
ABOUT US | SUBSCRIBE | LINKS | E-MAIL EDITOR | HOME
© Copyright 2003 Ragged Edge Magazine
This Website produced by Cliffwood Organic Works