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Activists say disability law is imperiled

Michael Coffino Daily Planet Correspondent
Wednesday October 04, 2000

Next week, the U.S. Supreme Court will hear arguments in a case that could abruptly limit the rights of disabled employees at the University of California and other state institutions, activists said Tuesday. 

If the Court rules as expected, the decision could bar employees from suing the University and other state entities for discrimination under the Americans With Disabilities Act, said speakers at a panel discussion held on the UC Berkeley campus 

The case, University of Alabama vs. Garrett, challenges the constitutionality of the decade-old disability rights law, known as the ADA. Oral arguments will be heard in the case  

Oct. Tuesday’s event, held at the UC Berkeley student union was timed to coincide with demonstrations in Washington D.C. calling attention to next week’s oral arguments before the Supreme Court. 

“If the Supreme Court finds against Garrett a large part of the ADA would be deemed unconstitutional,” Daniel Davis, a student speaker who heads the Disabled Students’ Union, told audience members Tuesday. “What is at stake is whether state sovereignty or civil rights will prevail,” he said. 

Davis, along with a panel of seven activists and disability rights lawyers who convened the afternoon “teach in” yesterday, view the pending case as a crucial test of the future of the ADA, and indeed of federal civil rights laws in general. 

“The implications are enormous,” attorney Linda Kilb told an audience of 60 people, many in wheelchairs. “We are talking about a situation where the (Supreme) Court is broadly directing the authority of Congress to pass civil rights laws and to determine within those laws the types of prohibitions and standards that will be a part of federal policy,” she said.  

At issue in the case, say legal experts, is a complex constitutional power struggle that pits the states against the federal government and the U.S. Congress against the Supreme Court. In recent cases, Kilb said yesterday, the Court has sharply curtailed the application of federal civil rights laws to state entities. The ADA will likely receive similarly unkind treatment, she and other panelists predicted.  

The Garrett case originated in Alabama and wound its way to the nation’s highest court in Washington D.C. It is being closely watched by Bay Area disability rights activists who say that an adverse decision would reverberate across the country, rendering the ADA inapplicable to state entities that have discriminated against disabled persons. Under the 11th Amendment, states are immune from lawsuits brought against them in federal court unless Congress specifically “abrogated” that immunity to enforce civil rights laws passed pursuant to the 14th Amendment.  

“Every entity that can claim it is a state entity would be immune,” said Guy Wallace, a disability rights lawyer in San Francisco who has filed a brief in the Garrett case and was a featured speaker Tuesday. Wallace predicted that a vast array of state-associated entities from public schools to parks to museums, virtually any organization funded with state money, would be affected. 

Left unsaid at Tuesday’s clearly partisan gathering, though, was that California already has in place state civil rights laws prohibiting discrimination against disabled persons in public accommodations and elsewhere. These laws, passed as part of California’s Unruh Civil Rights Act and other legislation, would 

not be affected by the Garrett decision, said Davis, who heads the Disabled Student Union. 

Attorney Kilb, who directs the Berkeley-based Disability Rights Education and Defense Fund, did caution against taking a too alarmist view of the Garrett case. “We have to remember that the ADA will not be completely dead if we lose Garrett,” she said, because the ADA would still apply to private parties. “States do a great many things in our society but they are not the be-all and end-all of (discriminatory) action,” Kilb counseled. 

Indeed, the ADA was recently applied in a federal lawsuit against actor Clint Eastwood, who owns a hotel in Carmel that was allegedly inaccessible to wheelchair users. Eastwood won the case last week after a jury found in his favor. 

Still, speakers at yesterday’s meeting viewed the threat posed by the Garrett case in broad terms.  

“What we have accomplished has provoked a backlash,” said Paul Longmore, a history professor at San Francisco State University who is himself disabled. “Some people just don’t want people with disabilities to be around,” he said. “They want us to go back to being invisible, shut away, excluded. But we are not going away, we’re not going to be hidden again,” he said to loud applause. 

The Garrett case takes place against the backdrop of a presidential election whose outcome could well determine the direction of future Supreme Court civil rights jurisprudence.  

Panelists at yesterday’s forum said they were alarmed by the possibility that the next president will have a chance to appoint as many as three new Supreme Court justices. Those appointments could tip the balance of the Court decisively where federal civil rights laws are concerned. By narrow 5-4 majorities the court recently struck down portions of one law barring age discrimination in employment and another allowing rape victims to sue their attackers.  

Participants at the forum said these decisions indicated that the ADA and other civil rights laws were in imminent peril as well.