Many states think they should be immune from disability discrimination suits. Why? Because of the protections of the 11th Amendment, as we'll see below.

Several years ago, the state of Alabama appealed to the Supreme Court when Patricia Garrett, who taught at the University of Alabama, sued the state (her employer) under the Americans with Disabilities Act. Her suit involved Title I of the law, which prohibits employment discrimination on the basis of disability.

The Supreme Court decided that case three years ago. No; said the Supreme Court, the ADA's Title I was not Constitutional; therefore states were immune from Title I ADA lawsuits.

Now the Court has ruled the other way. This time the part of the law in question is Title II.

So -- what's different? What does it all mean?

The Eleventh Amendment to the U.S.. Constitution gives individual states immunity from suits in federal court, as Laura Williams explained in our article a few months ago on "Sovereign Immunity, Disability Discrimination and Us."

But then in the wake of the civil war and abuses by states against "Negroes," the nation ratified The Fourteenth Amendment. The part we are most familiar with reads, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. " In other words, if states are engaging in a pattern of discrimination against a particular group of people, and Congress has sufficient evidence, it can pass laws that allow states to be sued anyhow -- they lose their 11th Amendment immunity . Section 5 of the Fourteenth Amendment is the section that gives Congress power to pass laws that force states to stop discriminating -- but only if Congress has enough evidence to convince them that there truly is a widespread pervasive practice of discrimination.

Both the Garrett case and the Lane case hinged on that simple question: Is the Americans with Disabilities Act a valid exercise of Congress's power under Section 5 of the Fourteenth Amendment? Did Congress have enough evidence that people with disabilities faced "pervasive" discrimination when they passed the ADA? That's really what the debate in the Supreme Court has been about.

Chief Justice William Rehnquist has always said "no." Three other justices have always sided with him: Antonin Scalia, Anthony Kennedy and Clarence Thomas.

Another four justices have just as persistently said that yes, there certainly was and continues to be evidence of discrimination against people with disabilities pervasive enough to justify Congress passing the ADA. Those four are Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

The wild card has been Justice Sandra Day O'Connor. Three years ago, in the Garrett decision, she sided with Rehnquist -- no; Congress didn't really have enough evidence to justify passing a law that would subject states to suits. Now she seems to have changed her mind.

Although she did not write an opinion in this decision, so we don't know her views precisely, we can assume from the opinion written by Justice Stevens that these are her views as well, as she "concurred.' And for him, it comes down to the difference between Title I and Title II, and the kind of evidence the Justices think Congress had before them when they passed the law.

Both Title I and Title II, writes Justice Stevens, seek to enforce the "prohibition on irrational disability discrimination." (See sidebar.) But Title II, he writes, "also seeks to enforce a variety of other basic constitutional guarantees.... These rights include some, like the right of access to the courts .... that are protected by the Due Process Clause of the Fourteenth Amendment.

The Due Process Clause, he goes on to explain, guarantees "to a criminal defendant such as respondent Lane the 'right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.' " And it is true that George Lane was a criminal defendant at the time he found himself unable to get into the Tennessee courthouse.

"The Due Process Clause," Stevens continues, "also requires the States to afford certain civil litigants a 'meaningful opportunity to be heard' by removing obstacles to their full participation in judicial proceedings." This is one of the bones of contention that Rehnquist picks on, as we'll see below.

Stevens' opinion continues, "In the deliberations that led up to the enactment of the ADA, Congress identified important shortcomings in existing laws that rendered them 'inadequate to address the pervasive problems of discrimination that people with disabilities are facing.' " He refers to the Senate Reports leading up to enactment of the ADA. "It also uncovered further evidence of those shortcomings, in the form of hundreds of examples of unequal treatment of persons with disabilities by States and their political subdivisions." Justice Breyer made this point in his dissent to the Garrett opinion, Stevens points out. But even the majority opinion in Garrett noted that most of the examples in that Senate report "concerned discrimination in the administration of public programs and services" (though not in employment, which is why they ruled as they did in the Garrett case).

"With respect to the particular services at issue in this case, Congress learned that many individuals, in many States across the country, were being excluded from courthouses and court proceedings by reason of their disabilities," writes Stevens. "A report before Congress showed that some 76 percent of public services and programs housed in state-owned buildings were inaccessible to and unusable by persons with disabilities, even taking into account the possibility that the services and programs might be restructured or relocated to other parts of the buildings."

Stevens is referring to the 1983 report of U. S. Civil Rights Commission called "Accommodating the Spectrum of Individual Abilities" -- a document that set the stage for passage of the ADA.

"Congress itself heard testimony from persons with disabilities who described the physical inaccessibility of local courthouses," Stevens' opinion continues.

Here, though, is the heart of the disagreement between the Justices about the ADA: Stevens, and four others, think this evidence was sufficient. Rehnquist and his cohorts do not.

And that clearly puzzles Stevens. "Given the sheer volume of evidence demonstrating the nature and extent of unconstitutional discrimination against persons with disabilities in the provision of public services, [Rehnquist's and his cohorts'] contention that the record is insufficient to justify Congress' exercise of its prophylactic power is puzzling, to say the least."

Rehnquist, just as he did in the Garrett opinion, continues to insist that this evidence, which has now convinced five of his colleagues, is both "unexamined" and what he calls "anecdotal."

"Most of the brief anecdotes do not involve States at all, and those that do are not sufficiently detailed to determine whether the instances of 'unequal treatment' were irrational, and thus unconstitutional," he insists. "... [T]he Court identifies few, if any, constitutional violations perpetrated by the States against disabled persons.

"... Indeed, there is nothing in the legislative record or statutory findings to indicate that disabled persons were systematically denied the right to be present at criminal trials, denied the meaningful opportunity to be heard in civil cases, unconstitutionally excluded from jury service, or denied the right to attend criminal trials." In a footnote to this sentence, he adds, "Certainly, respondents Lane and Jones were not denied these constitutional rights. The majority admits that Lane was able to attend the initial hearing of his criminal trial. Lane was arrested for failing to appear at his second hearing only after he refused assistance from officers dispatched by the court to help him to the courtroom. The court conducted a preliminary hearing in the first floor library to accommodate Lane's disability, and later offered to move all further proceedings in the case to a handicapped accessible courthouse in a nearby town. In light of these facts, it can hardly be said that the State violated Lane's right to be present at his trial; indeed, it made affirmative attempts to secure that right. Respondent Jones, a disabled court reporter, does not seriously contend that she suffered a constitutional injury."

The presence of architectural barriers in itself does not seem to faze Rehnquist. In his dissent, he makes the point that the court "offered to move the proceedings." And indeed, one of the "reasonable accommodations" mentioned throughout the ADA's various regulations is that things like meetings, classes, etc. can be moved when the venue is inaccessible -- usually because of steps -- and that this constitutes "acccommodation."In the oral arguments, the justices had some discussion about people being carried up steps -- to him, it seems, as long as someone is being helped -- i.e., carried -- things are OK. This point is significant. Many people, and not just judges, believe the same thing: what's wrong with being carried up steps? You're not denied access unless someone refuses to let you come in. Being hauled up a flight of steps is an adequate "accommodation," such folks say. Is it? Most disability rights activist think it isn't, but we haven't convinced enough people beyond our movement. And many many people in this nation do not understand why disabled people complain when, rather than make a building accessible, the owner offers to accommodate them by coming to their home, for example, or meeting them on the sidewalk.

Many disability activists who worked on getting the ADA passed speak fondly of the late Justin Dart's ADA Task Force, which went around the country collecting discrimination stories from disabled people and presented the material to Congress as it was debating passage of the law. The activists speak of the hearings Dart held, of the letters he collected, of the overwhelming evidence that poured forth.

But Rehnquist is not impressed. "The report of the ADA Task Force on the Rights and Empowerment of Americans with Disabilities sounds promising," he writes. "But the report itself says nothing about any disabled person being denied access to court."

The "thousands of pages," he goes on, have "only a few anecdotal handwritten reports of physically inaccessible courthouses, again with no mention of whether States provided alternate means of access. This evidence, moreover, was submitted not to Congress, but only to the task force, which itself made no findings regarding disabled persons' access to judicial proceedings."

But even if evidence did exist, he continues, "the mere existence of an architecturally 'inaccessible' courthouse -- i.e., one a disabled person cannot utilize without assistance -- does not state a constitutional violation. A violation of due process occurs only when a person is actually denied the constitutional right to access a given judicial proceeding.

"We have never held that a person has a constitutional right to make his way into a courtroom without any external assistance. Indeed, the fact that the State may need to assist an individual to attend a hearing has no bearing on whether the individual successfully exercises his due process right to be present at the proceeding. Nor does an "inaccessible" courthouse violate the Equal Protection Clause, unless it is irrational for the State not to alter the courthouse to make it "accessible." But financial considerations almost always furnish a rational basis for a State to decline to make those alterations."

Here, then, is the heart of the matter: It's OK for states to "assist" people -- which means carrying them up stairs, generally -- and it's OK for a state to keep its architectural barriers if it thinks it might costs too much to remove them. Neither is real -- that is, "irrational" discrimination. It might be a kind of discrimination, but it's "rational" -- that is, it makes sense; it's OK.

The cost issue almost always arises in the issue of disability discrimination. Unlike discrimination against racial and ethnic minorities, or against women, which requires no changes in the built environment to rectify, disability discrimination often costs real money to redress. Because things have to be changed.

And so people often come up with another way of looking at it: they decide that the presence of architectural barriers doesn't truly constitute denial or oppression.

The issue of discrimination against people who cannot use the typical built environment doesn't make sense to a lot of people. Nobody's "keeping" them out, goes the reasoning. They just can't climb up the steps. They just can't pull the door open. They just can't climb on the bus. Nobody's really being intentionally mean to them.

This kind of thinking is at the heart of Rehnquist's reasoning, and it's a kind of thinking he shares with an awful lot of people in this country.

This time, in this case, Rehnquist's reasoning didn't carry the day. But who knows what will happen the next time an ADA case is before the Supreme Court?

Justice Stevens writes, "Title II is aimed at the enforcement of a variety of basic rights, including the right of access to the courts." And here's where things get dicey, even for the justices who believe that Congress did have enough evidence showing that disabled people were kept from the courts to warrant passing the ADA. They're not going to rule on the entire Title II; they're only going to decide the much narrower question "of whether Congress had the power under Section 5 [of the Fourteenth Amendment] to enforce the constitutional right of access to the courts."

Yes, they say; Congress did have that power -- so, as far as access to the courts goes, Title II is constitutional.

It's what court watchers call a "narrow ruling."

What will happen the next time a case involving Title II -- another part of Title II -- comes before the Supreme Court? "Requiring access for disabled persons to all public buildings cannot remotely be considered a means of "enforcing" the Fourteenth Amendment," groused Justice Antonin Scalia in his own dissent. Will four other justices agree with him?

The Disability Rights Education and Defense Fund, in a statement, said such a narrow ruling was "forcing people with disabilities to take a piecemeal approach to enforcing their right to equal participation," which it said "flies in the face of Congress's intention when it enacted the ADA." The American Association of People With Disabilities' Andy Imparato groused to the media that "four justices still do not understand the connection between ... the Constitution's protection of individual rights and the right to be present at your own trial if you use a wheelchair."

There will be more Title II cases coming before the Supreme Court in the future. Will Stevens and his ideological buddies by then be able to convince Rehnquist and the others that the record of discrimination was anything more than "anecdotal"?

It won't stop there. There will eventually be cases brought before the Supreme Court concerning the law's Ttitle III as well. That's the part of the law that outlaws disability discrimination in places of public accommodation -- restaurants, movie houses, stores and businesses of all kinds. It's a pretty sure bet that Scalia and his ideological buddies on the Court, who now don't see much reason to require access to public services, will take an even dimmer view of requiring access to private businesses.

Until this nation -- and its judges -- truly understands the nature of disability discrimination, things will continue to be very dicey.

Posted May 19, 2004.

Mary Johnson edits Ragged Edge. She is the author of Make Them Go Away: Clint Eastwood, Christopher Reeve and The Case Against Disability Rights.

Read a transcript of the oral arguments (html -- this is a large file) (to read transcript, click here)

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