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Support the Americans with Disabilities Act
VOR Special Alert
Americans with Disabilities Act
Special Alert
March 6, 2000
1. Letter of Introduction
2. VOR position in support of the Americans with Disabilities Act (ADA)
3. 2 Appeals Involving Disabilities Act Voided; Settlements Preclude High
Court Decisions
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1. Letter of Introduction
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March 6, 2000
Dear E-Mail Friends:
Alsbrook and Dickson, the two cases accepted by the U.S. Supreme Court for
review and dealing with the constitutionality of the Americans with Disabilities
Act (ADA), have been settled and dismissed by the U.S. Supreme Court (see
related article below). According to a New York Times article (Thursday, March
2, 2000), it is highly likely that the Supreme Court will grant review in one of
several pending cases looking at the constitutionality of ADA.
At the heart of these cases is whether or not Congress exceeded its
Fourteenth Amendment authority in passing the ADA. The Fourteenth Amendment
allows Congress to pass legislation aimed at correcting constitutional wrongs
and, in so doing, waiving the immunity states would otherwise enjoy per the
Eleventh Amendment. Congress only has this authority if it can show that the
legislation is a remedy for an existing and pervasive constitutional violation.
VOR agrees that Congress acted well within its Fourteenth Amendment authority
in enacting the ADA. VOR's position in support of the constitutionality of the
ADA, which offers further detail, is shared below. For those of you able to
access WordPerfect attachments, the position paper complete with formatting and
VOR's logo, is also attached as a file.
You are encouraged to distribute this position paper to all interested
audience, e.g., family organizations, disability organizations, state
policymakers, and media representatives.
Sincerely,
Tamie Hopp
Executive Director
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2. VOR position in support of the Americans with Disabilities Act (ADA)
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Voice of the Retarded
5005 Newport Drive, Ste 108
Rolling Meadows, IL 60008
847-253-6020
847-253-6054 fax
vor@compuserve.com
March 2000
VOR position in support of the Americans with Disabilities Act (ADA)
Next term, the United States Supreme Court is expected to consider whether or
not ADA is constitutional. VOR supports the constitutionality of ADA.
VOR is an advocacy organization dedicated to insuring that individuals with
mental retardation receive the care and support they require in a setting
appropriate to their needs. Judicial and agency interpretations of ADA mandates
concur that ADA endorses a full array of residential options, from
community-based care to institutional settings.
VOR appeared before the United States Supreme Court as an amicus curiae in
Olmstead v. L.C., 119 S. Ct. 2176 (June 22, 1999) in support of preserving
choice under ADA. Our brief was quoted at 119 S. Ct. 2176, 2189 (Ginsburg, J.,
joined by Justices O'Conner; Souter, and Breyer) ("Each disabled person is
entitled to treatment in the most integrated setting possible for that
person--recognizing that, on a case-by- case basis, that setting may be an
institution."). The United States Department of Health and Human Services
subsequently recognized that Olmstead supports choice in residential options
stating, "States may choose to utilize their Medicaid funds to provide
appropriate services in a range of settings from institutions to fully
integrated community support" (January 14, 2000).
VOR's constituency includes the people with most severe levels of mental
retardation. It has consistently taken positions resisting a construction of ADA
forcing community placement for all individuals with mental retardation.
However, VOR has never opposed the statute itself, and now stands forward in its
constitutional defense. As we observed in our Olmstead brief:
"Liberation from the effects of disability is the major thrust of the
ADA. The ramps it requires; the physical barriers it removes; the platform lifts
it installs all serve to transform a wheelchair into a chariot. VOR warmly
endorses this result.
As applied to caregiving options, the ADA insures that there will be no more
Willowbrooks. Never again can the severely disabled be shunted aside, hidden and
ignored.' Alexander v. Choate, 469 US 287, 296 (1985). Here, again, VOR applauds
the result." (VOR brief at p. 4).
While Olmstead was not a constitutional case, it is of assistance here in its
clear description of Congress' intention in enacting ADA (119 S. Ct. at 2181-2).
Congress clearly declared that the ADA was intended "to establish a clear
and comprehensive prohibition of discrimination on the basis of
disability." (104 Stat. 327). Congress recited discriminatory conditions
due to state action that violated the Fourteenth Amendment and which ADA aimed
to correct. In so doing, Congress appropriately waived states' Eleventh
Amendment immunity as required by, e.g., Kimel v. Florida Board of Regents,
(Jan. 11, 2000).
VOR supports the constitutionality of the Americans with Disabilities Act.
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FN 1: VOR has also appeared as amicus curiae in Heller v. Doe, 509 US 312
(1993), successfully asserting the value of family input in placement decisions.
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3. Two Appeals Involving Disabilities Act Voided; Settlements Preclude High
Court Decisions
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By Joan Biskupic and Al Kamen
Washington Post Staff Writers
Thursday, March 2, 2000; Page A10
Until a few days ago, advocates for the disabled feared that the Supreme
Court was poised to narrow the scope of a watershed law designed to provide the
handicapped greater opportunities in society.
The justices had agreed to decide whether states can be sued for bias against
disabled people, and the question played right into efforts by a majority of the
justices to protect states from lawsuits over federal rights.
But in an unusual twist that reveals as much about politics as the law, the
parties in one of the Americans With Disabilities Act (ADA) cases settled last
week and the other pair settled yesterday. As a result, the justices have
knocked the cases from Florida and Arkansas off their April calendar of oral
arguments.
In the appeal from Florida, Gov. Jeb Bush (R) and Attorney General Robert
Butterworth (D), who is chairman of Vice President Gore's Florida campaign, had
been lobbied by numerous advocates to settle the dispute that could have had
wide repercussions for the nation's handicapped.
"It didn't hurt that it was an election year," said Gary H.
Blumenthal, executive director of the Florida Protection and Advocacy Programs.
"There were many people who questioned the appearance of Bob Butterworth
seeking to overturn [Gore campaign chairman and former House member] Tony
Coelho's greatest legislative achievement. And there were a lot of people who
questioned Jeb Bush seeking to overturn George Bush's greatest presidential
achievement."
The legal issue in the cases was whether states (like private businesses and
other government entities) can be sued under the ADA for excluding the disabled
from state jobs or other public benefits. States generally have 11th Amendment
immunity from suit in federal court, and lower courts are split over whether
Congress had lifted that immunity to protect individuals with disabilities. In
the Florida case, a federal appeals court ruled it had and said the state could
be sued by a prison guard who claimed he was denied a promotion because of his
heart condition.
Justin Sayfie, spokesman for the governor, rejected speculation that the
state's drive to settle the case, after convincing the justices to hear its
appeal, was politically motivated. "We had made attempts in the past to
settle the case," Sayfie said yesterday. "Fortunately, this effort to
settle was successful."
It was successful because the state suddenly agreed to pay prison guard
Wellington Dickson the $142,000 he was seeking, according to his attorney.
"This was a godsend for him," Gerald J. Houlihan said. Even though
Dickson had won in the appellate court, he still faced a jury trial on the
merits of his claim if he prevailed before the justices.
It's always good for the petitioning party when the Supreme Court agrees to
hear a case. So Florida's decision to settle surprised many court watchers.
"What's unusual here is that the state caved in so completely after
inducing the court to grant" its petition, said Kenneth S. Geller, a former
deputy U.S. solicitor general and an expert on court procedure.
Yesterday's settlement in Arkansas was more routine. It involved a police
officer who sued the state police training commission after failing to get
certified because of poor vision. National advocates for the disabled have been
trying to avoid a high court ruling that would narrow the ADA's protections. And
Arkansas officials, who had won in a lower appeals court, were easily persuaded
to settle.
© Copyright 2000 The Washington Post Company
