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Attorney Amy Robertson, of the Denver law firm Fox &
Robertson, drafted this important document at the request of Julie Reiskin and
the Colorado Cross Disability Coalition.
It clarifies key points of the Garrett decision, including the fact that
states still have obligations under the ADA.
States Must Still Comply with the ADA
The Supreme Court's decision in Board of Trustees of the
this one exception, the ADA is very much alive, even
against states and other public entities.
For example:
1.
Title II of the ADA was not affected by this decision and
2.
Even under the rationale of the Garrett decision,
3.
Individuals can still sue local governments and other
The Decision Only Covers Title I:
Title I of the ADA prohibits
What this means is that the result of the Garrett decision
only impacts state employment practices.
All other facets of state government activity are unaffected by this
opinion.
It is true that some courts may hold that the logic of today's decision
applies to Title II as well, although there are very good reasons why the
Supreme Court might analyze Title II differently and come to the conclusion that
damages suits are available under that title.
But even if Title II is treated as Title I was in Garrett – that is, if
damages suits are held to be unconstitutional -- suits for injunctive relief
against states and all lawsuits against local governments are still very much
alive.
An Individual Can Still Sue a State for an Injunction
Requiring
The upshot of Garrett is simply that the plaintiffs can't
recover damages.
This is so important it bears repeating:
States are still required to comply with the ADA.
In particular, states are required to comply with the
Supreme Court's
Individuals can sue for injunctive relief and damages
against
John Hockenberry, "Disability Games". New York Times editorial: June 29, 1999. Last week's decision by the Supreme Court to narrow the definition of disability and limit the Americans With Disabilities Act is unlikely to clarify how we handle the disabled. In fact, the Court's tortured argument about excluding disabilities that can be "remedied in some way" shows, once again, how reluctant the most powerful Government in the civilized world is to actually change things. Instead we are locked in another disheartening argument over rights and discrimination, which may be of interest to lawyers, but which barely addresses the difficulties of being disabled. The whole discussion reminded me of two experiences I have had as a paraplegic man in post-ADA America. Once on a plane, because I cannot stand up or walk, I placed my two carry-on bags below the seats in front of me, leaving the overhead compartment empty for use by the people sitting next to me. A man and a woman arrived and immediately objected. "You're using our space," they said. Of course they could not see that I was disabled in any way because my wheelchair had been taken below in baggage. "I can't stand up, I'm afraid," I said. "If it's all right, I need to have my bags down here within reach. But the overhead compartment is completely empty." "Why should we have to use the overhead?" the woman asked, her voice full of the suspicion that I was trying to pull a fast one. "And what do you mean you can't stand up?" I assured her that I was unable, physically, to stand up as she was doing in the airplane aisle. "I am disabled," I said. Far from settling the question, using the word just made her angry. "You're not the only disabled person, you know," she said, standing over me. "We have our stickers." At which point she and her husband produced laminated cards that had the universal wheelchair symbol embossed over some official-looking seal. The flight attendants and other passengers observing this dispute, none of whom knew anything about my wheelchair, concluded that the people standing in the aisle were in fact the disabled people while the frustrated man in the seat, me, was feigning paralysis in order to claim preference that was not his due. After all, I had no sticker. The couple was given seats in first class as compensation for having to endure my insensitive, antisocial rebukes. I don't suggest for a minute that they weren't disabled in some way. But I was shunned for the remainder of the flight as though I was a Federal prisoner handcuffed to an FBI agent. Once in a parking lot where every handicapped parking space but one was filled, I was just beaten to the remaining space by a man in his late 40's who parked and then walked quite openly and easily toward the store. I asked with a bit of sarcasm who his doctor was because whoever was treating his disability was doing a terrific job and I might like to make an appointment. He looked at my wheelchair and then, sensing my sarcasm, became angry. "You think I'm not disabled? Well look here." He proceeded to remove an upper and lower denture plate and held them close to my face. "When I lost these in 'Nam and practically died, how do you think I felt?" As horrifying as it was to stare at his glistening plates on a hot day and to see such obvious pain from his Vietnam experience, that was not the issue here. "I'm terribly sorry about all that," I said. "But do you really need your teeth to park?" It was clear that it was the first time this man had ever considered the practical realities of what handicapped parking spaces were created to address. In fact the way disability law is written in this country there is rarely an incentive to think about practical realities. Critics of the law suggest that hoards of dishonest people are clogging the courts with silly lawsuits over absurd disabilities. They are wrong. But disability advocates also fail by claiming an unqualified right to sue to obtain unspecified accommodations for any significant impairment, a right the Supreme Court curtailed. Rather than fixing a specific problem with a specific set of changes, the proponents of the Americans With Disabilities Act have decided to induce change through a series of lawsuits, encouraging people to think of disability as a nonspecific cache of misery redeemable for a compensatory benefit. Now, I don't advocate repeal of the disability law; the disabled should be able to sue like everyone else. But we would not, for example, wait to make buildings safe from fire until someone filed a lawsuit, claiming discrimination because they were afraid of burning to death. And indeed, governments force buildings to guard against fires by enacting all kinds of safety codes. To deal with the problem of full access for the disabled, we must define what changes are to be made, for which disabilities, and then get on with it. Instead the Supreme Court last week further refined an answer to the academic question, "What is a disability?" The Court said that if a disability can be corrected or mitigated, employers can conclude that impairment does not amount to a "substantial limitation." This is something of a revelation. I have a job I have a family. I travel all over the world. By this definition the fact that I use a wheelchair to mitigate my paraplegia suggests I am not disabled. Someone should tell the doctors working on a cure for spinal cord injury they are wasting their time. The Supreme Court just beat them to it. John Hockenberry is anchor of a nightly talk show on MSNBC. Copyright 1999 The New York Times Company Norb Ryan, "The Kentucky ADA Initiative". July 1999 (in press). The Americans With Disabilities Act was signed in July of 1990. The signing of this civil rights law was greeted with both enthusiasm and skepticism. On the one hand, people with disabilities saw this law as the opportunity to become full partners in the dream that is America. Others, however, saw the ADA as an intrusive piece of legislation that would require businesses, public service agencies, and the educational system to spend an extraordinary amount of time and money providing appropriate accommodations. Nine years later the ADA is still both applauded and disparaged. There are thousands of businesses that have embraced the ADA, an action that can be attributed, in my opinion, to two key reasons. First, it is the law, and companies that disregard it may find themselves involved in intensive and expensive litigation. Second, as our economy grows, so does the demand for qualified employees. However, although many companies have come to recognize the disabled community as an untapped supply of needed manpower (both managerial and otherwise), others have chosen to ignore the ADA and hope that applicants with disabilities will not know their specific rights under the law. In my view these companies have chosen a path that unfortunately may work. Indeed, the major problem with the ADA is that not enough people with disabilities have an understanding of their rights under the law. The Kentucky ADA Initiative was developed in response to this problem to insure that a growing number of people affected by the law have a better understanding of the law and the qualifications it places on everyone. I have always compared the ADA to the civil right laws of the early 1960s. The goals are the same; namely, inclusion in all aspects of the American dream. Both laws were written to protect the rights of a group of people that historically have been discriminated against. The main difference between the two laws is that the civil rights laws of the 60s were generally understood, and accepted by those individuals for whose protection it was written and passed. People with disabilities, in contrast, have yet to fully realize what effect the ADA can have on their future and on their place in society. In addition, the individuals working with and/or caring for people with disabilities are also not insuring that people with disabilities know their rights. The Kentucky ADA Initiative therefore was developed to provide information and technical assistance to the individuals who happen to be disabled, as well as to the support systems surrounding them. Thus, although students with disabilities are the key focus of the Initiative, also of importance are the parents, teachers, and school professionals who support them in their everyday activities and future plans. Students From my experience in working with high school students over the past five years, I have found that these students generally are unaware of their rights and responsibilities under the Americans with Disabilities Act. As students enter the workforce they should have an understanding of their rights under the law. Thus, the Kentucky ADA Initiative provides students prior to graduation the tools they need to advocate for themselves in employment settings. Students who graduate from high school and realize the importance of post-secondary education are similar in their lack of knowledge concerning their rights while attending a university, community college or technical college. Statistics from Exceptional Children (Vol. 62, No. 5) indicate that 26.7% of students with disabilities enter post-secondary education programs within five years of graduation, and this number continues to rise. Many of these students, even those with quite obvious handicaps, are not fully informed of their rights to accommodations. Moreover, students are not advised of the right of disclosure both during a job interview and while in school. Students have better opportunities to succeed if they are informed of their rights and are able to advocate for themselves. ADA training teaches students these rights, how to enforce them, and how to be heard on both a personal and professional level. Students who have mastered empowerment skills and are aware of their rights can better advocate for themselves, and improve their job placement and independent living skills. Parents Parents are the main support system for the students who happen to be disabled. Unfortunately, these important individuals are often unaware of both the rights and the requirements of their children regarding employment and post-secondary education. Parents will be more supportive of a child remaining in school until graduation if they are aware of their child’s rights to secure meaningful employment. Parents also should realize their child’s obligation, under the ADA, to accumulate the necessary educational and skill/experiential development for future employment. Because of this, parents must be made aware of their child’s rights and responsibilities, especially as their son or daughter is entering the job market. Teachers Special education teachers have a significant impact on students with disabilities. It is therefore crucial that special education teachers have a complete understanding of the Americans with Disabilities Act. The ADA Initiative has helped to facilitate this process through the development of ADA-focused presentations for teachers. These presentations, or training sessions, have served to assist these influential individuals in relating the Americans with Disabilities Act to their students. Professionals Professionals in higher education must attain a level of competency regarding disability issues in order to work effectively with students to achieve successful post-graduation employment outcomes. However, until recently, the disability coordinator in the post-secondary setting was often picked from a "general" counselor pool and assigned the disability coordinator position. That person often had neither the experience nor the knowledge necessary to insure a positive educational experience for the student. It is therefore essential that training is provided system wide. It is not acceptable that a student in one post-secondary institution be granted appropriate accommodations while a student across the state or city may be struggling due to lack of appropriate accommodations. Unfortunately, few resources have been readily available when professionals are confronted with questions concerning particular needs of a student who happens to be disabled. With programs such as the ADA Initiative and an overall willingness to become more knowledgeable in providing equal educational opportunities for all students, many post-secondary institutions have been making strides in their ability to accommodate students with disabilities. Based on its success to date, the Kentucky ADA Initiative and programs like it will make a difference. However, the real impact will be made by individuals with disabilities themselves, as well as those individuals comprising their support system. Before this impact can be felt we, as educators, parents, professionals, or individuals with disabilities, have to be knowledgeable and must be stronger advocates for the rights afforded by the Americans with Disabilities Act of 1990. The ADA has been and still is under attack. Thus, if we don’t exercise these rights, they may disappear. |
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