Disability Compliance Bulletin

September 8, 2000

Amicus briefs shape arguments in Supreme Court immunity case

With oral arguments in one of the most important ADA cases ever to reach
the U.S. Supreme Court barely a month away, the specific positions of
interested parties are gaining definition via the filing of amicus briefs. In June, Hawaii led seven state attorneys general
in urging the Court to insulate state defendants from ADA claims in federal
court.

Last month, a brief filed by twice that number of other state attorneys
general led a charge of four different amicus filings thatattempt to
preserve ADA claims against state defendants.

These briefs are important for several reasons: they anticipate the
analytical course that the high Court will take, providing insight for
practitioners currently facing similar issues; they derive from
expert sources, including a lead government agency and a prominent law
professor; and they present clear, cogent arguments with respect to the
immunity issue.

All the briefs focus on the pending case of University of Alabama v.
Garrett, in which the 11th U.S. Circuit Court of Appeals ruled last October
that the ADA is a valid exercise of the Enforcement
Clause of the 14th Amendment. The Garrett case, which involves a university
worker's claim of discrimination based on breast cancer, has been combined
with that of Milton Ash, who is claiming that Alabama's Department of Human
Services violated the ADA by failing to accommodate his asthma. The Supreme
Court is set to decide whether the claims are barred by the 11th Amendment.

The office of Minnesota Attorney General Mike Hatch drafted one of the four
briefs, which was signed onto by attorneys general from Arizona,
Connecticut, Illinois, Iowa, Kentucky, Maryland,
Massachusetts, Missouri, New Mexico, New York, North Dakota, Vermont and
Washington. "The important protections of the ADA are critical to remedying
the well-documented and longstanding societal discrimination that many
people with disabilities have faced," Hatch said. "Just like private
industry, the state should be subject to all provisions of the ADA."

Saying that there is "substantial factual support" for the conclusion that
states have unconstitutionally discriminated against people with
disabilities, the Minnesota brief calls the ADA a "measured and
balanced response" to the problem of disability discrimination. The
statute's legislative history, it adds, shows that "Congress clearly had
compelling evidence of discrimination against people with disabilities,
including unconstitutional discrimination by states."

"The ADA has opened many doors which were previously closed to individuals
with disabilities," added Massachusetts Attorney General Tom Reilly.
"Individuals with disabilities continue to face
barriers, and it is important that the states lead in protecting against
such discrimination."

The Department of Justice has also filed a brief, urging the Court to find
that Titles I and II of the ADA are proper exercises of Congress's power
under Section 5 of the 14th Amendment. The DOJ brief attempts to hammer home
two critical points that are likely to play a critical role in the case:
that the ADA's legislative history shows that people with disabilities had
been subjected to discrimination by government, and that the ADA was a
careful, properly tailored response to that discrimination.

The DOJ stresses the strength of the evidence of discrimination that
Congress gathered in anticipation of the ADA, saying that "Congress
exhaustively studied the problem" of disability discrimination and "amassed
voluminous evidence" of disability discrimination by state and local
governments. The existence of state disability discrimination laws should
not bar application of
the ADA to states, it added, because Congress gathered substantial evidence
indicating that state laws have not adequately addressed the problem.

In a third brief, Robert L. Burgdorf, of the David A. Clarke School of Law
in Washington, argues on behalf of the National Council on Disability that
Congress acted within its authority when it
applied the ADA to states. Reprising the theme that the ADA was a measured
response to a meticulously documented history of disability discrimination,
the NCD brief says that "Congress did its homework" in making states subject
to ADA claims. "The ADA is sound legislation, based upon careful
congressional consideration and an extraordinarily extensive documentary and
informational record," Burgdorf asserts.

A fourth brief, written by lawyers at the Lambda Legal Defense and Education
Fund and joined in by various organizations including the American Civil
Liberties Union, also repeats the theme
expressed by the others: that the ADA can be applied to state defendants
because it is a proportional, congruent response to a documented history of
unconstitutional disability discrimination perpetrated by states.