dictionary

Will U.S. Supreme Court enable the disabled to sue states?

By Charles Bierbauer
CNN Senior Washington Correspondent
Special to CNN.com

FULLTEXT Univ. of Al. Board of Trustees v. Garret Lower court decisions and legal briefs October 26, 1999 (FindLaw)

IN-DEPTH • Justice Profiles • Supreme Court Home Page

LEGAL RESOURCES   FindLaw Supreme Court Center   • Court History   • The Justices   • Landmark Decisions FindLaw opinion database: Supreme Court opinions from 1893-2002 Search by party: Search by full-text:

WASHINGTON (CNN) -- A white woman and a black man brought their claims of discrimination against the state of Alabama to the Supreme Court on Wednesday. Not the racial discrimination of the 1960s. Not the gender discrimination of the 1980s. The civil rights issue this year lies in the Americans with Disabilities Act.

Patricia Garrett complains that while she was undergoing treatment for breast cancer the state-run hospital where she was a nursing supervisor demoted her. Milton Ash suffers from severe asthma but says the youth services agency where he is a security guard ignored his pleas to enforce its own no smoking rule.

It is easy to empathize with Garrett and Ash. They make their case calmly, almost embarrassed by the notion that their matters should trouble the Supreme Court.

"Once I healed and began to think about it and pondered the situation, I really became convinced that I had not been treated right," says Garrett. "And not only had I not been treated right, I had an obligation as well."

It is easy to empathize with other disabled Americans who wheeled their way into the court chamber or waited outside in wheelchairs or with guide dogs or interpreters signing for the deaf.

But is the law empathetic?

The Americans with Disabilities Act -- ADA -- is now 10 years old and ripe for judicial examination. Each time an ADA case comes before the Supreme Court the disabled and their advocates fear it will be constricted.

Examining the ADA in past terms, the justices have ruled that a dentist may not discriminate in providing services to a patient with AIDS. But the justices have also found that the ADA is not so elastic that it encompasses vision that can be corrected or hypertension that can be medicated.

This term's case -- University of Alabama v. Garrett -- does not reach the discrimination questions of whether the hospital treated Garrett poorly or the youth services ignored Ash. The question before the court is whether they even have a right to sue the state under federal law.

It is, in short, a federalism case rather than a discrimination case.

"The only issue that's at stake is whether Congress can force states to waive their immunity," explains Jeffrey Sutton, who argued the case for Alabama. "And it's immunity from money damages actions."

Congress said it could do just that, invoking the 14th Amendment -- "Congress shall have power to enforce" -- and its right to equal protection.

We've been here before. Just last term.

The Supreme Court ruled then -- in Kimel v. Florida Board of Regents -- that Congress could not take away a state's immunity to allow a federal age discrimination suit. Congress, the court found, had not documented a history of such age discrimination by the states when it passed the Age Discrimination in Employment Act -- ADEA -- in 1967.

"This case is Kimel. It's exactly like Kimel," said Sutton, a Supreme Court appeals specialist who had argued and won the Kimel case.

Not all the justices agreed. In passing the ADA in 1990, Congress had compiled a substantial history of discrimination against the disabled -- hundreds of examples.

"If Congress finds all these problems, why is it not sufficient?" Justice Stephen Breyer asked.

Alabama argues it -- and all states -- have laws barring discrimination against the disabled.

Garrett could have "filed a grievance procedure" with the hospital, Alabama Attorney General Bill Pryor explained on the steps of the Supreme Court after the arguments. "She had a right to complain."

Just steps away, one of the ADA's authors, Sen. Tom Harkin, rebutted the claim.

"Congress found that even though there were laws in those states, we found those laws were ignored," the Iowa Democrat said.

The Rehnquist court has given the edge to the states in recent federalism cases, typically in narrow 5-4 decisions built on the court's conservative wing. Kimel was such a case.

Justice Sandra Day O'Connor wrote the Kimel opinion, concluding that "Congress had no reason to believe that broad prophylactic legislation was necessary in this field." But O'Connor did not say never. She is often the swing vote and most likely the one justice who could change the court's opinionin the Alabama case.

O'Connor pointed to Congress' findings of discrimination in voting, health services and transportation and admonished Alabama's lawyer: "Those are areas of traditional state control."

It was the closest O'Connor came to suggesting she might find a difference in the federal government's need to intervene on behalf of the disabled where she found no need on behalf of older Americans.

At 70, O'Connor is one of the older justices, but in a job where age is no handicap. She is also a breast cancer survivor.

Those are coincidences, to be sure. O'Connor may certainly empathize with Garrett, and may have with Kimel. She didn't say.

Charles Bierbauer, CNN's senior Washington correspondent, covers the U.S. Supreme Court and public policy issues. Send comments to Charles Bierbauer by writing to charles.lawcenter@cnn.com.