Dear JFA Readers:
Below is an op-ed by John Lancaster, Executive Director of the
National Council on Independent Living (NCIL). NCIL is the
oldest cross-disability, national grassroots organization run
by and for people with disabilities. Its membership includes
centers for independent living, state independent living
councils, people with disabilities and other disability rights
organizations. As a membership organization, NCIL advances
independent living and the rights of people with disabilities
through consumer-driven advocacy. NCIL envisions a world in
which people with disabilities are valued equally and
participate fully. NCIL is opposed to the confirmation of
Judge Samuel Alito to the US Supreme Court. The full
Senate
will vote on Judge Alito on
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Don't Rollback Disability Rights! Say No
to Alito
By John A. Lancaster
Samuel Alito's 15-year record as a federal appeals
court judge
compels my organization, the National Council on Independent
Living, a national non-partisan, cross-disability organization,
to oppose a US Supreme Court nominee for the first time in our
more than twenty-four year history.
In his rulings, Judge Alito has favored powerful
government
authorities over the rights of individual victims of
discrimination. He has supported administrative agencies that
are not enforcing fair housing rules and regulations over those
who have to deal with the lack of accessible, affordable
housing. He has consistently placed the so-called 'dignity' of
states over the civil rights of persons with disabilities. This
at a time when some states are still imprisoning people with
disabilities in state institutions for no other reason than
that they have a disability. His record makes it impossible for
persons with disabilities to be confident that a Justice Alito
would administer fair and impartial justice. Here's why:
Alito's approach to states' rights in Chittister, which claimed
that Congress lacked the power to pass key parts of the Family
and Medical Leave Act (FMLA), could be used to strike down the
Americans with Disabilities Act (ADA). His position in US v.
Rybar that machine gun sales cannot be regulated
under the
Commerce Clause contradicts over 60 years of precedent and
poses a direct threat to the
Alito has held people challenging discrimination on
the basis
of disability, such as Jayne Nathanson in Nathanson v. Medical
College of Pennsylvania (1991), to standards so rigid that the
majority on the Third Circuit warned that "[F]ew
if any
Rehabilitation Act cases would survive summary judgment if such
an analysis were applied to each handicapped individual's
request for accommodations."
Judge Alito's vote to have the full Third Circuit
rehear Helen
L. v. DiDario (1995) raises grave doubts as to
whether Judge
Alito would uphold, the
The integration mandate, found in the regulations implementing
Title II of the
to institutionalized persons with disabilities who could be
appropriately served in the community, as long as doing so
would not fundamentally alter state services or impose an undue
burden upon the state. This is essential to remedy the tragic
phenomenon of improper institutionalization of persons with
disabilities, which the late Justice Thurgood
Marshall once
described as a "regime of state-mandated segregation and
degradation that in its virulence and bigotry
rivaled, and
indeed paralleled, the worst excesses of Jim Crow."
In Helen L, the Third Circuit held that "the
attendant regulations clearly define unnecessary segregation as
a form of illegal discrimination against the disabled." Judge
Alito favored rehearing the case, strongly suggesting
that he
objected to its core holdings, in sharp contrast to Justice
O'Connor, who was part of the majority in Olmstead v. L.C., in
which the Supreme Court held that unnecessary
institutionalization is a form of discrimination. When we have
not yet turned the corner on ending the institutional bias in
the Medicaid system, we cannot afford to have a justice who
would roll back our rights to community integration on the
Supreme Court.
Accessible housing is in short supply and vigorous enforcement
of fair housing laws by federal agencies is sorely lacking.
Judge Alito's decisions in housing cases have
deprived people
with disabilities of the accessible housing they need to
liberate them from incarceration in institutions and to allow
them to live independently in the community. His 1999 ruling in
ADAPT v. HUD gave a free pass to federal agencies to ignore
their own rules and regulations and has contributed to a trend
that has severely undermined fair housing enforcement in the
3rd Circuit, despite rampant non-compliance by public housing
authorities. A 2005 HUD study has found that people with
disabilities face discrimination in up to half of all rental
inquiries. It is wrong to display greater concern with
protecting governments from litigation than with enforcing fair
housing laws. In our view, rights without remedy are
essentially broken promises.
The rights of people with disabilities are already hanging by a
narrow thread on the current conservative Supreme Court. In
as applied to the fundamental right of access to the courts was
only upheld by a margin of 5 to 4 with Justice
Sandra Day
O'Connor providing the decisive vote. So, forgive us if we
cringe instead of feeling reassured when Judge Alito
tells us,
as he did in his Senate testimony that "...I'd be the same sort
of justice in the Supreme Court as I've been a judge on the
court of appeals."
It is truly a shame that 15 years after President George H.W.
Bush brought Americans together by calling for the "shameful
wall of exclusion" to come tumbling down, as he signed the
Americans with Disabilities Act into law, his son has nominated
a Judge whose track record suggests that he will undermine that
wonderful bipartisan legacy. Persons with disabilities cannot
afford another judge on the Supreme Court that cares more about
the so-called "dignity" of the states than about equal
opportunity for persons with disabilities to live in the
community, obtain an education and pursue a career.