The Eleventh Amendment to the U.S. Constitution reads, "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."

When the issue of racial equality emerged on the open battlefield in the middle of the last century, our leaders agreed that the pattern of discrimination by states themselves against racial minorities was so clear that it was "sufficient" to override states' sovereign immunity. Why isn't it the same when the courts look at discrimination against persons with disabilities?

Sovereign immunity for individual states goes back to our very formation as a union of states. The Eleventh Amendment to the U.S.. Constitution gives individual states immunity from suits in federal court.

This immunity was -- and is -- very important. It means states are protected from tariff wars with each other; are protected from land and possession disputes between the states, are protected from suits from foreign nations and, to a limited extent, from suits by individuals.

These separations and immunities have served our union well.

But when the issue of racial equality emerged on the open battlefield in the middle of the last century, the executive and legislative branches of our government, and the Supreme Court, agreed that the pattern of discrimination by states themselves against racial minorities was so clear that it was "sufficient" to override -- "abridge" is the legal term used -- the sovereign immunity protection states enjoyed under the Eleventh Amendment. Thus, when it came to discrimination against racial minorities, states could be sued to ensure equal access to civil liberty for racial minorities.

Not only that; but states could be sued for all forms of of discrimination against persons of color. The courts did not require that the state be proven to discriminate against persons of color in all forms of discrimination. The fact that there was a "pattern" of discrimination by a state was accepted as valid reason for a suit.

Why isn't it the same when the courts look at discrimination and barriers to equal access for persons with disabilities?

Aside from the fact that the courts themselves have been at the fore of this type of discrimination and lack of access to equal justice, the fact is that persons with disabilities are not viewed as one group (a "discrete and insular" minority is the term the law uses) suffering from a wide pattern of discrimination.

That fact alone has allowed the courts, the states and the federal government to judge disability barriers at the minutiae level of contractual lam rather than at the level of a broad-based civil rights law.

The American public may never come to regard people with disabilities seen as a "discrete and insular" minority, because we are disparate in so many ways. The many barriers we face are often not judged for what they are -- barriers -- but are seen as simply the products of our own inabilities.

Many Americans see our disabilities as the progenitor of discrimination. They do not see the barriers that lack of inclusion generates in every aspect of our daily living.

Over the next decades, we must work to change that perception. We must get the public to understand that it is not the wheelchair that is the problem, but the lack of a surface that can be safely traveled by wheels. It is not the blind eye that is the problem, but the lack of ensuring that every print publication be provided in alternative format at the time of issuance. It is not the problem of the learning disabled that they have been denied full inclusion and acceptance as American citizens by the populace at large.

There should be no barriers inserted when structures are designed, when programs implemented, when services at every level are provided -- barriers that later need removing. They should not be designed in the first place.

The barriers we face every day have been designed and inserted out of ignorance and lack of respect for differences within the American populace. Through design foresight and patterns of inclusion, we can participate fully in our American dreams.

Until then we must fight to preserve the Americans with Disabilities Act with our every breath and energy.

One way to do this is to ask each of our states to waive its immunity from ADA lawsuits.

A bill to waive California's immunity was introduced into the CA Assembly Feb. 20. The bill, known as SB 1760, would add a section to current law "stating that the State of California consents to be sued in state or federal court by any person seeking to enforce rights or obtain remedies afforded by the Americans with Disabilities Act of 1990." To learn more about the bill, go to http://www.leginfo.ca.gov/bilinfo.html - type "SB 1760" into the query section.

Posted March 11, 2004.

Laura Morris Williams is president of Californians for Disability Rights.

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I hope the disability community understands that the Supreme Court has used a double standard by demanding that the disabled prove case-by-case discrimination rather than being allowed to use anecdotal proof of discrimination, as all other minority groups have been allowed to do in civil rights cases. In order for us receive any renumeration ["damages"] when discriminated against, we must ask our state to waive "sovereign immunity" against itself on cases involving the Americans with Disabilities Act. The Supreme Court has taken away awards in Title 1 cases, and may soon do so in Title 2 cases as well.