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Posted by Ted ( on March 09, 2001 at 21:02:26:

The US Supreme Court recently stripped away part of the American with Disabilities Act of 1990 claiming it infringes upon states rights by the federal government (articles on this and other attempts involving the Court and the ADA below. Please note that while the Court did refuse to hear certain cases, it appears that this will be an issue that will present itself to the Court for yearsto come). Now, whatever your particular philosophy of what proper federalism is is kind of moot for this (and most likely all) project by OUCH’s Legislative Committee because the final word has already been given.

In the case University of Alabama at Birmingham Board of Trustees vs. Garrett the Court, in a 5-4 decision, decided that state employees can not sue the state and be granted monetary awards, presumably including back pay, for any acts of discrimination based upon disabilities by the employer, which the ADA provided for. The ruling doesn’t apply to private or federal employers. Just state employers. Also, the ability to sue for injunctive measures to prevent demotions or firings hasn’t been struck down YET! However there are states presently attempting to have the Supreme Court disqualify that from the ADA too. This means that YOUR finances and job are at risk if you work for the state. If you don’t work for the state, it is important that you stand up for your brothers and sisters with CHs that do. A state employee isn’t necessarily a government bureaucrat. It could be a college janitor, teacher, etc. too.

With this in mind, the Legislative Committee is sponsoring our first letter drive. Since there is
never much use petitioning the Supreme Court in this manner and since the decision took this ability for financial compensation out of the hands of the federal laws, I ask that each US citizen write their respective State Congress people to ensure that your state picks up what is now the slack in the law. A letter has been drafted below that can be copied and pasted (you just need to remove the “Representative” when you write to a Senator and “Senator” when you write to a Representative. Also, signing your name at the bottom would be needed). However, if the letter is written in your own words it will carry more weight than if the same letter goes out with the same words by many. That’s just a matter of how politicians weigh how much importance they give different communication with them (Don’t worry. Letters such as this are still pretty high on the list). There will soon be a link at the OUCH website where you can look up your
congressperson’s name, address, e-mail and phone number, as well as get a copy of this letter. Until then, if you already have contact information and you want to get started contacting them now, here is all you need. Please contact them in whatever means best suits you.
One last thing. The legislative committee can use people from all nations so we can work on
issues besides just ones of the United States. Being American, those are the only ones I am familiar with.
Thank you,
Legislative Committee chairman.

Dear Representative/Senator ,
On February 21, 2001, In the case University of Alabama at Birmingham Board of Trustees vs.
Garrett the US Supreme Court, in a 5-4 decision, decided that state employees can not sue the state and be granted monetary awards, presumably including back pay, for any acts of discrimination based upon disabilities by the employer, which the Americans with Disabilities Act of 1990 provided for.
I suffer from cluster headaches, described by the medical community as the most painful
condition known, more painful than accidental amputation and natural childbirth in degree of
pain. Cluster headache sufferers (also known as "suicide headaches" in the medical community)
may get 4, 5, 6 or more attacks per day of this terrible pain. I am writing to you strongly urging
you to ensure our state laws provide for the ability to sue state employers for monetary compensation, including lost wages, when they discriminate against the disabled in the workplace. In other words, to take up the mantle from the federal government since the Court’s ruling.
Your swift attention to this matter will be kindly appreciated.


(If you’re a member of the Organization for Understanding Cluster Headaches [OUCH] you
might want to insert “Organization for Understanding Cluster Headaches [OUCH] member”
under your name. This will get our name out a little more.)

Case Weighed States’ Rights Vs. Civil Rights
By Geraldine Sealey

Feb. 21 — The Supreme Court ruled 5-4 today that state workers cannot file
employment-discrimination lawsuits under a key federal disability-rights law.
A Narrow Majority Court: Congress Overreached States' Rights Trend

The ruling in one of this term's weightiest cases limits the scope of the landmark 1990 Americans
With Disabilities Act and continues the high court's recent trend of trimming the power of the
federal government over the states.
When Congress passed the disabilities law, lawmakers went too far in allowing state workers to
seek monetary damages for alleged employment bias, the slim majority ruled. The 11th
Amendment protects states from being sued by private citizens in federal courts, the justices said,
and the ADA does not trump that immunity.
Today's ruling reverses a federal appeals court decision that let two Alabama state employees sue
over alleged bias.
Disabilities and civil rights activists had predicted a ruling in favor of the states would jeopardize
protections under an array of federal civil rights laws, including the ADA. Alabama, with seven
concurring states, said a ruling on its behalf would help curb the overreach of federal power.
A Narrow Majority
Chief Justice William H. Rehnquist, a champion of states' rights, wrote the opinion for the
narrow majority.
"We decide here whether employees of the state of Alabama may recover money damages by
reason of the state's failure to comply with the (employment discrimination) provisions of Title 1
of the Americans With Disabilities Act. We hold that such suits are barred by the 11th
Amendment," Rehnquist wrote for the court.
Joining Rehnquist were Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy
and Clarence Thomas. Dissenting were Justices John Paul Stevens, David H. Souter, Ruth Bader
Ginsburg and Stephen G. Breyer. Writing for the minority, Breyer said, "The court ... improperly
invades a power that the Constitution assigns to Congress."
Today's case began when Patricia Garrett, a former registered nurse at University of Alabama
hospital, was diagnosed with breast cancer in 1994.
Garrett underwent a lumpectomy, radiation, and chemotherapy, and spent four months away from
work. But a week after her return to the hospital where she worked for 17 years, Garrett says she
was demoted even though she was able to perform her duties. She later sued for discrimination.
Ash, a security guard for the Alabama Department of Youth Services, said his severe asthma was
aggravated by the state's refusal to enforce its no-smoking policy and fix exhaust problems on a
vehicle he was assigned to drive.
Court: Congress Overreached
Despite the 11th Amendment, the Constitution does make room for some instances when states'
sovereign immunity is lifted. Section 5 of the 14th Amendment, for example, grants Congress the
power to dissolve states' immunity for the sake of providing citizens equal protection under the
But during oral arguments before the court last October, Alabama's attorney told the justices that
all 50 states already have their own anti-discrimination laws and provide enough protection for
disabled workers.
“This [ADA] was not needed; it’s not proportional to the very problem they were trying to
change,” Jeffrey Sutton said.
But Garrett’s lawyer, Michael Gottesman, said Congress found examples in the states of
“pervasive prejudice against persons with disabilities, a history of purposeful unequal treatment.”
He cited the example of a woman with arthritis who was denied a university teaching job. Scalia
voiced skepticism of a trend, saying that was “one instance.”
“There are dozens, hundreds of these, your honor,” Gottesman replied.
During the argument session, Breyer said court papers filed in the case showed numerous
examples of disability discrimination.
“Why isn’t it a constitutional violation where Congress has lots and lots of instances of states that
seem to discriminate against handicapped people?” he said.
In lower court action, Garrett and Ash's lawsuits were dismissed in district court. The 11th
Circuit Court of Appeals panel reversed the decision, ruling the state was not immune to suits
filed under the ADA.
A States' Rights Trend
For Supreme Court watchers, today's ruling should come as no surprise. In recent years, the court
has handed down a series of rulings freeing states from federal lawsuits filed by private citizens.
In the term ending last June, the court ruled that Congress exceeded its authority when it allowed
federal lawsuits against the states under the Age Discrimination in Employment Act of 1967. The
law did not address an established record of unconstitutional age discrimination by the states, the
court reasoned.
Although sovereign immunity usually doesn’t invite widespread public interest, the highly
charged Garrett case is different.
“In the earlier [sovereign immunity] cases the court could invalidate statutes without seeming to
go against important policies the public supports,” said Georgetown University law professor
Mark Tushnet. “The practical importance matters more than the signal in this case, precisely
because there are a lot of state employees affected.”
The cases are University of Alabama at Birmingham Board of Trustees vs. Garrett and Ash vs.
Alabama Department of Youth Services.

Justices Sidestep Handicap Fees

.c The Associated Press

WASHINGTON (AP) - The Supreme Court will not get involved for now in the question of
whether the disabled may be made to pay some of the government's cost to accommodate them,
such as a fee for special ``handicapped'' parking tags.

The court, without comment Monday, turned aside three cases involving fees under the 1990
Americans with Disabilities Act.

The justices looked at appeals arising from fees charged in North Carolina, California and Texas,
but chose not to consider any of them.

At issue was the government's ban on any state surcharges to the disabled for the cost of
providing special services, and a larger constitutional and ideological question about whether
Congress had the authority to force states to do certain things under the ADA.

Opponents of the fees claim they discriminate against the disabled and thus violate the ADA, the
very law that gave rise to them.

Federal appeals courts have reached different conclusions about fees for services under the ADA.

The high court declined to decide if the 4th U.S. Circuit Court of Appeals was right to approve
North Carolina's fees for handicapped license plates or parking placards in 1999.

Five disabled people had sued North Carolina, saying the state broke the law by charging $5 for
placards. The state argued that Congress did not have the power to forbid such fees.

The 9th U.S. Circuit Court of Appeals overturned California's $6 application fee for handicapped
placards. The appellate court ruled in 1999 that the fee is discriminatory and violates the ADA.

Lawyers for California appealed, claiming the fee is justifiable because it helps police enforce
handicapped parking rules and that the placard program actually affords the disabled more access
than the ADA requires.

The appeals court decision ``creates a serious disincentive to states that seek to implement
progressive programs that exceed the ADA's requirements,'' California lawyers wrote.

The 5th U.S. Circuit Court of Appeals threw out a challenge to Texas' planned $5 fee for
handicapped parking placards. It ruled last year that the ban on such surcharges is
unconstitutional, and dismissed a class-action lawsuit.

The court also added a twist by ruling that the fee ban is ``a highly intrusive limit on the core
state power to choose revenue sources.''

The main plaintiff in that suit, Nell Neinast, appealed to the Supreme Court. Neinast argued that
the ADA prohibits discrimination of any sort, and that a fee is discriminatory, ``whether it be a
$5 charge for equality such as equal access to buildings or a $50 charge.''

She also argued that a state's power to raise revenue is irrelevant to enforcement of the ADA.

The cases are Brown v. North Carolina, 99-424; California v. Dare, 99-1417; and Neinast v.
Texas, 00-263.

AP-NY-02-26-01 1027EST

Justices Won't Hear ADA Challenge

.c The Associated Press

WASHINGTON (AP) - Only days after it put some lawsuits off-limits under the Americans With
Disabilities Act, the Supreme Court declined to take on a broader challenge to the landmark law.

The court, without comment, turned aside a case Monday that could have made states immune
from lawsuits alleging discrimination against the disabled in access to public services, programs
and buildings.

Like a case decided last week, which dealt with state employees who sought money damages for
alleged employment discrimination, this one asked the justices to look at the 11th Amendment as
it relates to civil rights claims, and decide how much protection states are due.

The amendment has been interpreted to give states immunity from private suits seeking money in
federal court, unless the states have consented to be sued or Congress has acted conclusively to
do away with the immunity.

In its 5-4 ruling on Feb. 21, the court said Congress exceeded its authority in opening states to
private employment discrimination lawsuits like those brought by a state-employed nurse with
breast cancer and a maintenance worker with chronic asthma.

That ruling is limited to state employees. But the same reasoning would have wider effect if
applied to the case acted on Monday. That case dealt with lawsuits against state or local
governments under the part of the ADA that forbids governments to discriminate against the
disabled in their programs, services and activities.

That part of the 1990 anti-discrimination law is not limited to state employees, and is a major
reason public buildings have had to make such physical changes as wheelchair ramps and Braille
elevator buttons.

The suit arose from claims by convicted burglar John Walker that Illinois prison authorities did
not make adequate accommodation for his partial blindness, in violation of the 1990 law. He
wanted books on tape, a very brightly lit cell and transfer to a less restrictive prison.

A federal court partly agreed with Walker's discrimination claims, but eventually threw out his

Last year, the 7th U.S. Circuit Court of Appeals directed that the case be dismissed on 11th
Amendment grounds.

The appeals court held that Congress lacked authority to enact the ADA in the way it did, and
therefore could not subject states to ADA damage claims in federal court.

Meanwhile, the Justice Department had jumped into the case to defend the constitutionality of
the ADA's application to the states. The Justice Department then appealed the 7th Circuit
decision to the Supreme Court last year.

The Illinois officials sued by Walker claim the Justice Department had no business getting
involved, and they asked the Supreme Court not to step in.

The case is United States v. Snyder, 00-554.

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