<< CONTENTS >>

1. NOTE FROM THE EDITOR

2. PRELUDE - The University of Alabama v. Garrett

3. THAT WAS THEN, THIS IS NOW

4. THREE REASONS WHY IT SHOULD BE BUSINESS AS USUAL

5. PURE SPECULATION AND PERSONAL MUSINGS

6. POSTSCRIPT

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<< A NOTE FROM THE EDITOR >>

My original intention had been to devote the entire March issue of the newsletter to the impact of the USSC Garrett decision, and follow with a posting to the DAIS website of another "Hot Button" page (like the page developed from the February newsletter regarding the impact of Section 508 and the obligation for technology access). In the end, I decided it is neither that "meaty" a topic, nor that "hot" an issue on campus these days. There is/was great dismay within the disability community regarding the decision, but -- for the moment -- it changes little for us in our dealings with students in higher education (the primary focus of DAIS). There isn't much we can/should do except to understand exactly what the decision was and what it means to higher education, and then to be vigilant to assure that the decision is not interpreted differently by LESS knowledgeable people on campus. So here we go, folks. Hang on to your seats -- it's gonna be a bumpy ride!

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<< PRELUDE - The University of Alabama v. Garrett >>

(Dateline: February 21, 2001)

In a 5-4 decision (authored by Chief Justice Rehnquist), the Supreme Court ruled that "suits in federal court by state employees to recover money damages by reason of the States' failure to comply with Title I of the ADA are barred by the 11th Amendment." The decision can be found at http://www.supremecourtus.gov/opinions/00pdf/99-1240.pdf.

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(Excerpt from an ANGRY response by DREDF)

"The Disability Rights Education and Defense Fund, Inc. (DREDF), the country's leading disability civil rights organization, expressed dismay at today's Supreme Court decision limiting the enforcement of Title I of the 1990 Americans with Disabilities Act. By the narrowest of margins, 5-4, the Court held in Garrett that state employees are not protected if their employers discriminate against them because of disability. The case involved two state employees with disabilities in Alabama - Patricia Garrett, a registered nurse with breast cancer, and Milton Ash, a security officer with asthma and sleep apnea, both of whom suffered discrimination in their jobs because of their disabilities.

"The conservative majority found (snip) that the ADA's legislative record fails to show that Congress identified a history and pattern of irrational employment discrimination by the States against the disabled."

"In his dissenting opinion in Garrett, Justice Breyer said, "The legislative record bears out Congress' finding that the adverse treatment of personal with disabilities was often arbitrary or invidious." "It is difficult to see how the Court can find the legislative record here inadequate. The record indicates that state governments subjected those with disabilities to seriously adverse, disparate treatment."

"Justice Breyer's dissent cited testimony from Arlene Mayerson, directing attorney of DREDF, a leading proponent of the ADA in Congress. Mayerson, who teaches at Boalt Hall, was co-author of the brief representing Garrett and Ash, and is the author of a comprehensive three volume legislative history of the ADA. Mayerson says that "the majority decision sets a new low in equal protection law. A state can exclude persons with disabilities based on 'negative attitudes' and 'fear' and still not violate the 14th Amendment guarantee of equal protection of the law. The majority decision ignores not only the voluminous legislative history on the historic discrimination by states against people with disabilities, but the hundreds of pages of documentation submitted to the court by a wide range of disability groups, historians and social science experts.

"Despite this blow, it is imperative that states and the public know that this decision affects only the ability of people with disabilities to sue state employers in federal court for employment discrimination. The ADA still prescribes standards for non-discrimination applicable to states' employment practices. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief. In addition, state laws protecting the rights of persons with disabilities in employment and other aspects of life are in full force and effect."

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(Editor's Note:)

IT IS IMPORTANT TO UNDERSTAND that the argument before the Supreme Court was NOT about whether Garrett and Ash were subject to discrimination at the hands of their employer (the State of Alabama). The Court really never examined that question. The ONLY question the court addressed was whether the State of Alabama could be held responsible if there WAS discrimination. This case was not an attack on people with disabilities nor was it a defeat of a disability-related issue. This was a victory for State's rights advocates, and the blow to the enforcement authority of the ADA was an unfortunate (VERY unfortunate) casualty of the constitutional law argument that has been brewing in the Courts for some time.

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<< THAT WAS THEN, THIS IS NOW...>>

(3/31/01 - NOTE TO READERS... As I was preparing this newsletter, I decided I had best go back and look at what I have said on this subject before. I was both relieved and amused to find that in the October, 2000 edition of the DAIS Newsletter, I had offered the following possibilities as to the possible outcome of the Garrett case, under the title "What Is Really At Stake Here?")

(from October, 2000)

As in any endeavor that focuses on legal interpretations and decisions, the answer to the question above is, "it depends!" In this case, it depends dramatically on what the Supreme Court decides, and it is complicated by the fact that there are not clear cut, black-and-white options FOR their decision.

* The Court could decide that Congress had every right and need to enact the ADA as it did, with all its incumbent provisions and restrictions. Clearly, that would make OUR jobs easier -- not because it would require our institutions to do any more or less, but because it would settle for some time to come the issue of whether ADA really was enforceable and whether the institution REALLY had to comply. A short "yes!" would suffice.

* The Court could decide that Congress had the authority to enact the ADA -- that there was significant evidence of irrational discrimination against people with disabilities that suggested the need for protection from the federal level -- and yet determine that the ADA as designed and implemented was an overreaction to the need for equal protection. In other words, they could accept the fact that discrimination was pervasive, but reject the remedies that WE see as necessary.

* The Court could decide that Congress overstepped its bounds in the passage and implementation of the ADA and that Title II of the ADA cannot be enforced against the States by private lawsuits in Federal court.

* OR... the could do something half way inbetween. For example, they could say, "we see ample evidence of discrimination in public services and we'll allow those provisions/remedies of the statute to stand, but there really isn't enough history of employment-related discrimination by the States to justify allowing the employment obligations of the ADA to be enforced against the States in this manner."

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(3-31-01)

THAT WAS THEN... THIS IS NOW!

* The court (unfortunately) did NOT say, "Congress had the authority. The
ADA is valid in all its obligations and mechanisms. Don't bother us anymore."

* The court (fortunately) did NOT say, "Congress had good reason to believe
that discrimination on the basis of disability was widespread, but the
obligation of making accommodations goes beyond the available remedies for
such discrimination."

* The court (thank goodness!) did NOT say, "Congress overstepped its bounds
in the passage and implementation of the ADA -- Title II cannot be enforced
against the States by private lawsuits in Federal court." (NOTE... they said
JUST this re: Title I, but were very careful to state that they were NOT
discussing Title II in any way.)

* Instead, the court came very close to the fourth option I suggested back in
October. The decision says, "there isn't sufficient history of
discrimination by the state to justify enforcing the EMPLOYMENT obligations
of the ADA by suit for damages in Federal court." The Court did NOT say,
"there IS evidence of discrimination in public services and we will allow
those remedies to stand." Instead they copped out (that's a technical term)
and said, "we aren't going to talk about Title II and public services." They
didn't reinforce the legitimacy of Title II and its obligations/remedies --
they just chose not to speak to them at all!

Where does that leave us?

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<< THREE REASONS WHY IT SHOULD BE BUSINESS AS USUAL >>

Now that you have some understanding of what the Garrett case was about, what the Court said (and DIDN'T say), let's talk about what implications the Garrett case has for students with disabilities in higher education. There really should be little immediate impact on services for students with disabilities for several reasons:

1) One of the first things the Justices said in the majority decision was, "... this ONLY pertains to Title I of the ADA. We are not discussing the appropriateness of Title II." While those at state institutions may find that the decision has some impact on the remedies available to faculty and staff with disabilities under the ADA, the Justices made it clear that the findings of this case were to be applied ONLY to Title I (employment) issues. The services we provide for students with disabilities in higher education are provided under Title II in public institutions and Title III in private institutions.

2) As noted above, the Garrett decision prohibits individuals from SUING FOR DAMAGES against the State in Federal court (and THEN only in Title I cases). Even if that restriction WERE eventually picked up in Title II in the aftermath of a different case, it would be unlikely to impact dramatically on the legal remedies sought by students with disabilities who feel their rights have been violated under the ADA because

a) the VAST MAJORITY of complaints brought by students with disabilities against institutions of higher education are brought through the Office for Civil Rights (OCR), NOT through the courts. There is NOTHING in the Garrett decision that impacts on the enforcement policies of OCR as it regards 504/ADA in postsecondary education. The authority of the agency is not curtailed in any way by this decision; and

b) the higher education suits that ARE brought to court under the ADA are MUCH more likely to be looking for injunctive relief than for significant damages. Rather, students who feel they did not get the appropriate accommodations may be looking for the chance to use such accommodations in the future, reinstatement, grade changes, and the like. Moreover, until such a time as Section 504 was ALSO undermined in some way, plaintiffs from public institutions could sue the state for compensatory damages (reimbursement of tuition/expenses) even without Title II in place.

AS AN ASIDE: In speaking with an attorney friend, he suggested that institutions of higher education are not likely to be nearly as afraid of an OCR investigation as they are of the prospect of money damages in court. I think he is speaking from his perspective as an attorney who has been involved in some "big money" settlements against private employers, NOT as a college administrator. I don't think I have ever met a college administrator who doesn't dread the idea of an OCR investigation AT LEAST as much as any court case. After all, such court cases are handled primarily by some legal team (often with outside counsel involved), and if the institution loses, it comes out of someone else's pocket, anyhow! On the other hand, OCR is in a position to demand an incredible amount of time, energy, and cooperation from administrators in resolving a complaint -- and the OCR settlements are more likely to involve direct change to the day-to-day functioning of the administrator than will a "yes/no" decision from the court.

Moreover, the IMAGE of the institution as a welcoming, cooperative, student-centered place to be can suffer equally in the press whether it is an OCR investigation or a court case, whether for damages or for injunctive relief. I have seen more administrators "cave in" to pressure because of concern about image than I have out of concern about policy!

The bottom line is that if the faculty or administrators at your institution think they can or should back away from their commitment to provide access to students with disabilities because of the Garrett decision, they are wrong. All the legal mandates (and common sense!) that brought them to implement current policies and procedures are still in force and still enforceable. Period.

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<< PURE SPECULATION AND PERSONAL MUSINGS >>

What follows is pure speculation on the part of the author/editor/publisher (me -- Janie!). When you play all three roles you can take a certain amount of license in presenting your thoughts because you don't have to answer to anyone else. So for what it is worth...

The eternal optimist in me hopes that there is something significant in the fact that, while the decision in the case was 5-4, Justices O'Connor and Kennedy filed a concurring brief, rather than letting the majority brief speak for them (that means that they chose to vote along with the other three justices in the final decision in this case, but that they reasoned their vote along somewhat different lines). That, in addition to the significantly limited scope of the decision ("This is ONLY about Title I. We don't want to talk about Title II.") may hold some hope for disability advocates.

At the oral arguments in October, Sandra Day O'Connor asked the first question of the "state's rights" side: Isn't this case different from (the case regarding age discrimination in which the court ruled that Congress had no reason/evidence to support the abrogation of state's rights) in that Congress had found many instances of discrimination against the disabled attributable to the states? While she also had a few questions of Garrett's attorneys and the Solicitor General (who argued on Garrett's side), O'Connor was largely quiet during the oral arguments. In the majority decision, Justice Rehnquist indicated that there seemed insufficient evidence of state-sponsored illegal discrimination on the basis of disability (a finding vehemently disputed in the dissenting opinion).

Everything I have seen/read regarding the current make-up of the court and in analyzing the chances in the Garrett case suggested that O'Connor would be the "swing" vote. If SHE could be convinced that there was adequate cause to support stripping the States of their 11th amendment immunity, then the ADA might escape the fate that has befallen other legislation seeking protection for a given class under the complicated constitutional law arguments that (in the end) prevailed here, too. It didn't happen that way, BUT... for the moment, Title II is safe and intact.

It may be that O'Connor's "price" for signing on to the majority decision in limiting the enforcement of the ADA against the States was the early and clearly stated "we aren't going to talk about Title II." I would like to believe (hope?) that O'Connor may have said, "If you want my vote, you have to promise not to fiddle with Title II as it relates to access to state government and government services. If you insist on trying to spread the decision to incorporate Title II, I just may have to vote the other way." That's the POSSIBLE good news, as it might suggest that if a Title II case were to come before this same court, the vote would go the other way.

HOWEVER, let us not forget that Sandra Day O'Connor has already expressed interest in retiring from the Court. Were she to leave with everyone else staying in place (my own private theory is that no matter how old and how tired Justices Breyer and Ginsburg might feel, they are going to stick it out through GW's presidency just out of spite because they aren't about to let him have a crack at replacing them on the Bench!), there is no telling how her replacement may respond to this issue. (Hmmm... I suppose there is no telling whether a replacement would ever make it through the confirmation hearings with the current make-up of the Senate!!!) Only time will tell!

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<< POSTSCRIPT >>

The week after the Garrett decision was handed down, the Supreme Court quietly decided NOT to accept a case regarding whether it was legal for the States to assess an additional surcharge for disability parking placards. The case was refused "without comment." Several possibilities come to mind:

1) They wanted to give some time for the dust to settle from the Garrett decision before they tackled another ADA-related case with such significant potential consequences;

2) They just didn't think it was an important enough issue for the Supreme Court to be bothered with;

3) The majority on the Court did NOT want to take up an ADA Title II case with the current make-up of the Court because they face the possibility of a "defection" by O'Connor if the push too hard on this one;

or... or... sigh! I'll think about that tomorrow!

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(End of Newsletter)