When Congress passed the Americans With Disabilities Act in 1990, it sought to bring to an end a legacy of official discrimination that historically has excluded people with disabilities from participating fully in mainstream America.
By many accounts, the law has been a success, in large part by creating a strong incentive for employers to focus more on ability than disability when hiring new workers.
But now, 10 years after the ADA became one of the nation's strongest and most far-reaching civil rights laws, questions are arising about whether Congress went too far when it allowed disabled public employees to sue state and local governments in federal court.
The issue arises in a major case set for argument today at the US Supreme Court. The justices will examine whether Congress violated fundamental principles of American federalism in the name of civil rights.
Analysts say the case is expected to help define the scope of congressional power to pass national laws that apply to state and local governments.
University of Alabama v. Garrett is actually two consolidated cases involving Alabama state workers. In one, a nursing supervisor was demoted after taking a leave of absence to undergo cancer treatments. In the other, a security guard diagnosed with severe asthma had to work in a guardhouse with smokers. Both are suing the state government under the ADA for alleged employment discrimination.
In part, the ADA requires that employers make reasonable accommodations to enable handicapped workers to function as any other employee on the job.
Critics of the law say it intrudes into the realm of state sovereignty in violation of the state-federal power balance set up in the Constitution.
In general, states may not be sued in federal court for damages unless they waive their sovereign immunity. Under certain circumstances, Congress has the power to abrogate state immunity under the 14th Amendment's equal-protection clause, but the legislation must address a pattern of constitutional violations by the states. In addition, the law must be in proportion to those violations, according to recent Supreme Court precedents.
Last term, the court ruled that Congress overstepped its authority when it applied a federal age discrimination law to the states. Some analysts believe the same 5-to-4 conservative majority of justices will rule that the ADA also does not apply to the states.
Supporters of the ADA say it is a permissible use of national legislative power to reverse historical and ongoing discrimination against the disabled. Violations range from now-repealed state laws calling for the forced sterilization of mentally retarded women and human warehousing of mentally retarded persons in state mental hospitals, to lingering prejudice and physical barriers that continue to work against the disabled employees and job applicants.
Some activists say just the fact that the Supreme Court has agreed to hear the ADA case is undermining the purpose of the law.
"This has sent a very strong message to the American public and to private employers that perhaps the ADA is not such a good idea," says Jeffrey Rosen of the National Council on Disability. "It sends a message that it is OK to regard people with disabilities as second-class citizens."
The case is also being watched by constitutional law scholars anxious to see how it fits into the high court's emerging federalism jurisprudence.
The disabilities lobby is fighting hard to keep the ADA intact. Marci Hamilton, a visiting professor at New York University Law School and a federalism expert, says 21 states were prepared to sign a friend-of-the-court brief siding with Alabama earlier this year, but that number dropped to seven in the face of opposition.
The justices may feel similar pressure, Professor Hamilton says. "We'll see if they have the judicial fortitude to stick with it."
On the other side, 14 states have filed briefs urging that the ADA be upheld. In addition, former President George Bush, who signed the ADA into law in 1990, is asking the court to uphold it.
The case holds tremendous stakes, not only for the estimated 54 million disabled Americans, but also for civil rights groups in general, who are worried that if the Supreme Court invalidates a significant portion of the disabilities law, other civil rights statutes may soon be in the cross hairs.
"This is going to tell us a lot about what kind of civil rights and other laws regulating the states will be upheld," says Ira Burnim, a member of the team urging the court to uphold the ADA. "If we lose, it will be a very strong signal that essentially no legislation in the civil rights area is going to be safe."
Jeffrey Sutton, a Columbus, Ohio, lawyer representing Alabama, says Congress failed to identify a pattern of unconstitutional discrimination by states. He says all states had their own laws banning state-sponsored discrimination against the disabled, negating the need for national legislation.
In addition, he says, the law targets conduct that doesn't necessarily violate the Constitution. "Congress responded to a social problem, not a constitutional one; it established a 'national mandate for the elimination of discrimination against individuals with disabilities,' not for the elimination of unconstitutional conduct," he writes in his brief.
(c) Copyright 2000. The Christian Science Publishing Society