Same old 5/4 split on the court, and we get this.

Stephen, you told me you were going to be all over the conservatives to keep them compassionate. Is this discompassionate enough?

(BTW, I dare anyone to say business week is a hotbed of liberal journalism, and keep a straight face.)

http://www.businessweek.com/bwdaily/dnflash/mar2001/nf2001037_455.htm

Choice selection ------------------------------------------

When the Americans with Disabilities Act passed in 1990, I thought that law could finally be brought to bear to stamp out discrimination against people with disabilities seeking or employed in state jobs.

Apparently I was wrong. In a key decision on the landmark case University of Alabama v. Garret, the U.S. Supreme Court on Feb. 21 ruled that the disabled could not sue state government agencies. The 5-4 decision showed deep divisions in the court. But the effect is the same. It places states' rights ahead of the rights of people with disabilities and their civil rights.

PRINCIPLE DISMISSED. Far more troubling than the ruling itself was the language behind it. In no uncertain terms, Chief Justice William Rhenquist gutted the concept of "reasonable accommodation." This notion, at the heart of the ADA, is that employers must make a reasonable effort to create a workplace in which a disabled person can function. Rhenquist also says people with disabilities are not entitled to sue for discrimination under the 14th Amendment, also known as the Equal Protection Amendment.

Precedents at such a high level could seriously undermine the ADA in future cases -- not just in the public sector but in the private sector as well. All told, it's a huge step backwards not only for disabled persons but for anyone who believes that all Americans deserve a fair chance to work, support themselves, and pay taxes to the government, instead of being dependent on the state.

-- Anonymous, March 08, 2001

Answers

REASON * March 2001

Overlawyered & Overgoverned An annual helping of tales from a litigious society.

By Walter Olson

March: The Equal Employment Opportunity Commission argued before a federal appeals court that Conrail violated the Americans with Disabilities Act when it denied a dispatcher’s job to an employee with a heart condition that can cause him to black out. According to the Detroit News, the agency told the court "that ‘while consciousness is obviously necessary to perform’ train-dispatcher tasks, ‘it is not itself a job function.’...The [job] involves directing trains and taking emergency action to prevent crashes."

The Washington Post reported that most of the campaign Web sites of politicians who vocally support disabled rights fail to heed even minimal guidelines for disabled accessibility. Among the sites in question were those of George W. Bush, Hillary Clinton, and Ralph Nader.

Disabled activists in New Haven, Connecticut, lodged a complaint against the schooner Amistad, a traveling historical exhibit, saying it was not wheelchair-accessible. The original Amistad was the scene of a famous slave revolt in the mid-1800s and its recreated version is meant to evoke the overcrowding and other inhumane conditions of the slave trade.

-- Anonymous, March 08, 2001

The Washington Post reported that most of the campaign Web sites of politicians who vocally support disabled rights fail to heed even minimal guidelines for disabled accessibility. Among the sites in question were those of George W. Bush, Hillary Clinton, and Ralph Nader.

Huh? What is an accessible web site? Do I get a ramp for my mouse?

-- Anonymous, March 08, 2001

Paul,

First, we need to determine if this guy is right -- did this decision "gut" the ADA? The answer is NO.

I'll admit that this is a strange decision at first read (and he is by no means the only person to make that claim since 02-26), but in fact, a careful reading shows that the court basically stated that the argument used by Garrett and Ash, based on the 14th Amendment, was in error, which is why they lost.

Now, that IS a landmark decision of sorts; I don't minimize that. But it's not exactly a "gutting" of the ADA. It is a strengthening of state's rights, which is an entirely different issue.

The majority points out that this case should have been decided in the Alabama *STATE* court system, not FEDERAL court. They noted (quite pointedly) that all 50 states have anti-discrimination laws in place to protect the disabled. Why didn't Garrett and Ash pursue it in the Alabama state courts? I honestly don't know. Maybe Alabama's law wouldn't permit them to recover the kind of money they were hoping for.

This decision is actually quite narrow. It SPECIFICALLY addresses whether STATE employees are able to sue their employers for monetary awards in FEDERAL court under the ADA by virtue of the 14th Amendment. The majority said, "no," and I basically agree with them.

Once you understand that, even if you disagree with the majority's ruling, you'll see that it's not a "gutting" of the ADA. At the worst, it has been "gutted" for state employers only; local, county, federal and civilian employers (nationwide) aren't included in that gutting.

The decision is at the Supreme Court's web site, by the way, in PDF form.

-- Anonymous, March 08, 2001

Exellent report, Stephen.

As with Y2K, I've learned that if an article looks like it has a slant, it has one helluva slant. Facts are good, very good. For example, in the recent SCOTUS election decision, 7 OUT OF 9 of the justices thought the SCOFLA ruling was wrong and that the way the recounts were conducted (in just four counties, varying standards). But you always hear only about the 5/4 split in the same ruling that called the recount quits.

Just "another 5/4 split"? Down with Americans with disabilities? Yeah, right. Makes good hype for the liberal cause, I guess...

-- Anonymous, March 08, 2001

Ok, is this Compassionate Conservatism?

No, this is poor reporting.

-- Anonymous, March 08, 2001

Further thoughts.

Speaking as someone with a disabled spouse, I was naturally VERY interested in (and yeah, when I first heard how it was being reported on the radio, concerned with) this decision. That's one reason why I downloaded and read it.

Yet still another reading of the opinion showed that the court even acknowledged special circumstances in which they'd permit even an ADA case against a state; in footnote #9,

Our holding here that Congress did not validly abrogate the States’ sovereign immunity from suit by private individuals for money damages under Title I does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. 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 under Ex parte Young, 209 U. S. 123 (1908). In addition, state laws protecting the rights of persons with disabilities in employment and other aspects of life provide independent avenues of redress. See n. 5, supra. (Emphasis mine.)

The real problem, according to them, is the 11th Amendment, which has long since been expanded by the court to include a prohibition on people suing state governments except for very special circumstances. Now, we can certainly debate that (maybe we ought to; I don't always agree with it myself!), but that's what was decided here.

-- Anonymous, March 09, 2001

Well, I think you guys are standing on a mighty small dime, and calling it compassion. But we'll all see how it plays out down the line.

-- Anonymous, March 09, 2001

Paul,

I didn't call it "compassion," I called it law. Didn't I say earlier that I strongly felt that the courts should interpret the law, not make it, bend it to fit or "fashion solutions?" I'm being consistent with that.

The compassion comes in HELPING the poor, the disabled and the needy. We can do that through charities and Congress can even do it with targeted entitlements. I'm not opposed to helping people. I'm opposed to bending the law to the current mood of the day to help people, because that completely eliminates the purpose of a written constitution and a codified law.

Instead, we should petition for a new law (or constitutional amendment, if need be) to target new situations.

We might as well have a King who can make decisions based on the whim of the day.

This isn't really a good example, anyway; this is a court decision. Let's talk about Congress "gutting" the rights of people to file bankruptcy and obtain a fresh start, or the more recent move to limit repetitive motion injury provisions.

-- Anonymous, March 09, 2001

Paul,

And just for the record, I very strongly criticized the new bankruptcy law. (Where is that thing at? Clinton vetoed it; Congress had enough votes to override, have they done that yet?)

I haven't had a chance to read up on the thing about repetitive-motion injuries (save for the usual polarized screeds online), so I can't comment on that yet.

-- Anonymous, March 10, 2001

The OSH Act was initiated in 1970 and has been the most convoluted piece of legislation to ever come out of Washington D.C. From the get go, this legislation has done more harm than good and only the Bible is close in the area of ‘multiple interpretations’. In it’s current form, OSHA is a bad joke that is choking the business community to death. Allowed to continue on it’s current path, OSHA will eliminate injury in the workplace all together……NO COMPANY WILL BE ABLE TO AFFORD TO CONTINUE TO OPERATE!

This should please the liberals to no end and then they can move on to another trauma, such as ‘Economic Meltdown’. We must remember that these evil corporate gnomes are responsible for keeping America at work. Of course, if you don’t work then pay no attention to my musings.

-- Anonymous, March 10, 2001

For Stephen: The Bankruptcy Bill.....

Bankruptcy Bill Benefits Chosen Few.

What a surprise.

Paul, did you honestly expect different responses than those you saw here? I didn't. I could have written them.

-- Anonymous, March 10, 2001

Thanks, Trish. Now I'm even MORE strongly opposed to it.

-- Anonymous, March 10, 2001

Poole is opposed? to a Bush agenda? sir get help someplace you are losin it.

Gotta love Wall Street. Ya they are buying this bozos "long term" agenda, please. Bad earnings? Not to worry Junior has an answer to jumpstart our one remaining industry, Tech,,,"screw them Liberals, let-em sit in the dark".

Liquidating America, will you be next?

-- Anonymous, March 10, 2001

Patricia, I could have written them. What would I have said had I responded on this thread? You don't have to answer that. I'm just curious on your side of this issue. Why do you disagree with this ruling?

-- Anonymous, March 12, 2001

No offense, but I'm not going there, Maria. Gave up talking politics with "the other side".

-- Anonymous, March 12, 2001

No offense :)

-- Anonymous, March 12, 2001