This article is provided as a courtesy service of the Great Lakes ADA News Service under a subcontract with the Disability News Services and funded by the U.S. Department of Education, NIDRR #133D60011. Please review the Conditions for Reproduction of this Article.
(776 words, posted February 1, 2000)
by Mike Ervin
Copyright ©2000 The Disability News Service, Inc.
Recent U.S. Supreme Court activity indicates the constitutionality of the Americans with Disabilities Act of 1990 ADA) will be tested before the current session ends in June.
In early January, the Court ruled in the favor of states in the case of Kimel v. Florida Board of Regents (98-791), holding that state employees cannot sue state governments in federal court for age-based employment discrimination under the provisions of the Age Discrimination in Employment Act of 1967 (ADEA). The Court further stated that Congress had overstepped its constitutional authority in passing ADEA, a law that protects older workers from age-based employment discrimination.
Wellington Dickson, one of the plaintiffs in the Kimel case, is a Florida prison guard with a heart condition who also brought an employment discrimination lawsuit under the provisions of the ADA. Although his age-based discrimination case was dismissed, the Court has agreed to hear his ADA complaint, Dickson v. Florida Department of Corrections (98-829) during this session. What does the Kimel ruling and the pending Dickson case mean for the ADA?
“It's very worrisome,” Philadelphia disability rights attorney Steve Gold says of the Kimel decision. Gold says what's going on is an “institutional power struggle” between Congress and the Court over which has ultimate authority to determine the scope of civil rights laws.
Currently, the battlegrounds are the 11th and 14th Amendments. In essence, the 11th Amendment prohibits citizens from suing their states in federal court. But the 14th amendment gives Congress power to enact laws that prevail over the sovereign immunity provision in the 11th when states deny citizens equal protection under the law. The 14th Amendment is the basis of civil rights laws like ADEA and ADA.
In both the Kimel and Dickson cases, the state claimed 11th Amendment immunity. In issuing the majority opinion in Kimel, Justice Sandra Day O'Connor wrote that Congress did not have enough reason to believe that states were discriminating in employment on the basis of age to warrant abrogating state immunity.
“One means by which the Court has determined the difference between a statute that constitutes an appropriate remedy and one that attempts to substantively redefine the states' legal obligations is by examining the legislative record containing the reasons for Congress' action...,” wrote O'Connor. “A review of the ADEA's legislative record as a whole reveals that Congress had virtually no reason to believe that state and local governments were unconstitutionally discriminating against their employees on the basis of age. Congress never identified any pattern of age discrimination by the states, much less any discrimination whatsoever that rose to the level of constitutional violation.”
The fact that the opinion gives such credence to legislative history gives hope to Linda Kilb, a hearing-impaired attorney for the Disability Rights Education and Defense Fund (DREDF) in Berkeley, California. “The legislative history of ADA is strong,” she says, “If the Court follows its own rules, which you never know, we could make the argument that disability is different.”
But, Kilb cautions, “It's hard to know what will happen.” The Court could determine that there is enough evidence to grant disability 14th Amendment protection. Since Dickson deals with the narrow issue of employment discrimination by states, the Court could invalidate or modify ADA in that limited regard or it could issue a more sweeping repudiation.
O'Connor also wrote, “Today's decision does not signal the end of the line for employees who find themselves subject to age discrimination at the hands of their state employers. Those employees are protected by state age discrimination statutes, and may recover money damages from their state employers, in almost every state of the Union.”
Kilb notes that almost all states have disability civil rights laws, too, and many were strengthened or inspired by the passage of the ADA. Kilb cautions, however, that many states may retreat if this catalyst is removed.
Gold also believes that a strong legislative history is the best thing ADA has going for it. Thus to bolster the legislative history in his court briefs, he is looking for examples of state laws, policies and practices that demonstrate discrimination against people with disabilities. He can be contacted at sfgold@compuserve.com (e-mail).
But Gold believes that the best hope for defending ADA is in street actions and demonstrations that express passionate support for disability civil rights. Because despite the appearance of impartiality, Supreme Court justices, like all humans, are political creatures.
“ They're going to vote with their stomachs. They'll vote what their guts tell them to and come up with a rationale to support it.”
This work was performed under a subcontract with the Board of Trustees of the University of Illinois, and funded by the U.S. Department of Education, NIDRR #133D60011.
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