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The same five members of the Supreme Court who put George W. Bush in the White House decided Wednesday that persons with disabilities who work for their state governments cannot file discrimination suits against their employers under the 1990 Americans with Disabilities Act. 

The 5-4 ruling, a further cutback of the federal government’s power over the states, said Congress exceeded its authority when it let state workers file claims seeking monetary damages under the 1990 law. 

“We’re lucky we live in California,” said Arlene Mayerson who teaches at Boalt Law School, UC Berkeley and is the directing attorney at Berkeley-based Disability Rights Education & Defense Fund, Inc.  

California has strong laws protecting disabled workers, said Mayerson, who co-authored briefs supporting the plaintiffs in the case that reached the highest court of the land. “Assuming that the Legislature doesn’t see it as an invitation to water down the legislation,” state workers in California will not be affected, Mayerson said. Workers in other states will. 

The case, Board of Trustees of the University of Alabama vs. Garrett et al. concerned two Alabama residents. Patricia Garrett, a University of Alabama nurse, took a four-month leave to undergo treatment for breast cancer. When she came back to work, she was told to take a lower-paying job or quit. The second plaintiff, Milton Ash, a security guard for the Alabama Department of Youth Services, said his severe asthma was aggravated by the agency’s refusal to enforce its no-smoking policy or to repair the exhaust of the vehicle he was given to drive.  

While the lower courts said both could sue, the Supreme Court reversed that decision. 

The majority opinion of Chief Justice William H. Rehnquist, and Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy and Clearance Thomas, said that states cannot be required “to make special accommodations for the disabled, so long as their actions toward such individuals are rational” and 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. 

The examples offered in the case of discrimination by states “fall far short of even suggesting the pattern of unconstitutional discrimination” to justify legislation based on the Constitution’s 14th Amendment equal-protection guarantee, Rehnquist wrote for the majority. 

“In order to authorize private individuals to recover money damages against the states, there must be a pattern of discrimination by the states ... and the remedy imposed by Congress must be congruent and proportional to the targeted violation. Those requirements are not met here,” the chief justice said. 

Dissenting were Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Writing for the four, Breyer said Congress had found about 300 examples of discrimination by state governments. “Congress expressly found substantial unjustified discrimination against persons with disabilities,” he said. 

“The majority decision sets a new low in equal protection law,” said Mayerson of the Disability Rights Education & Defense Fund. “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 ADA bans job discrimination against the disabled, requiring employers to offer reasonable accommodations to disabled people who are otherwise qualified to perform a job. It also bans discrimination in the provision of government programs and services. 

The law was signed by former President Bush, who filed a court brief supporting the two Alabama state employees who sued the state. Bush said the ADA let disabled people “pass through once-closed doors into a bright new era of equality, independence and freedom.” 

Jan Garrett, executive director of Berkeley’s Center for Independent Living said the decision makes it look as if “the Supreme Court seems to be acting in place of Congress” by weakening the ADA. 

A remedy would be for Congress to revisit and strengthen the ADA, Garrett said. But that could be dangerous, as well. “They could open up other areas,” she said. “We don’t know what the risks might be.”  

The Associated Press contributed to this report.