by Charles D. Goldman
In the new millennium, civil rights means the right to stand up and state that you want to discriminate — not with a hood over your head — but with legal papers in hand.
Indeed, in this new millennium, our states and municipalities are asking for court approval as they give new meaning to the old phrase: “You can’t sue city hall!”
First, I want to set the legal stage and then turn to my more fundamental concerns about what these activities really say about what progress has not been made over the past 50 years.
Legalizing Bigotry
Two recent cases, which purport to be concerned about preserving the sovereign rights of state governments to be protected from lawsuits, epitomize a contempt for the principles of fairness expressed in the Americans with Disabilities Act (ADA). Florida Department of Corrections v. Dickson is an employment discrimination case under Title I of the ADA involving the failure of Florida to promote an individual with a heart condition. Alsbrook v. City of Maumelle is a suit brought by a visually impaired person against an Arkansas city for monetary damages under ADA Title II. The Supreme Court agreed to hear these cases during the current 1999-2000 session. As I was preparing this article, however, both cases were settled — on the very eve of their hearing before the United States Supreme Court — perhaps because the politicians in the states which brought the suits began to think twice, in this year of election, about such blatant attempts at sanctioned discrimination.
Nonetheless, in both these cases, as in several others which preceded them and still others which are making their way through the lower courts, questions are being raised about whether a state/local government can be sued under the law if the state or local government entity has not agreed to be sued by waiving its sovereign immunity. This concept of sovereign immunity stems way back in jurisprudence to the notion of not suing the king. Now the states are attempting to apply this concept to mean that states/local governments must give consent to their being sued. Congress, they claim, cannot do it for them when they give litigants the opportunity to sue state and local entities for violations of the Americans with Disabilities Act.
The clear trend in recent years has been to limit the ability of citizens to sue states and local governments. Earlier this 1999-2000 term the Supreme Court held in Kimel v. Florida Board of Regents that states could not be sued under the Age Discrimination in Employment Act (ADEA). Last year the Supreme Court in Alden v. Maine held that states could not be sued for minimum wage violations of the Fair Labor Standards Act. These cases followed the court’s 1996 decision in Seminole Tribe of Florida v. Florida, in which the court held a state which had not waived sovereign immunity could not be sued in federal court even on an issue involving a federal question.
Legal niceties and foundations of the two ADA cases, Dickson and Alsbrook, could be dissected ad nauseam by people far more qualified than I. But to me there is really one critical basic question in all these cases: Why are we even having this debate?
If the Supreme Court ever holds in some future case that states cannot be sued under ADA’s Titles I and II, it strikes me that we will have gone full circle on civil rights in the past half century. If you go around in a complete circle, what have you accomplished?
A Brief History of Civil Rights Laws
Fifty years ago there were no civil rights laws for people with disabilities except for some “White Cane” laws which, as a practical matter, gave lip service, hortatory language and unenforceable rights to people who are visually impaired.
In the 1950s and 1960s, then-majority leader and later President Lyndon B. Johnson and senator and later President John F. Kennedy had to combat “states’ rights” arguments raised in opposition to the Civil Rights Act of 1956 as well as the landmark Civil Rights Act of 1964. Claiming “states’ rights” was a polite way of telling the federal government to keep out, leave the issue to the states. Enactment of these two major laws was heatedly fought in extended congressional debate and followed many demonstrations and horror stories, even some public beatings and private incidents of horror courtesy of, among others, the hooded Ku Klux Klan.
In 1973, the Rehabilitation Act came along, complete with the mandate in Section 504 which required that if you received federal funding, you could not discriminate against people with disabilities in program, service or activity. States turned to the federal bureaucrats and said, in essence, “Why not apply that to you, too, if you really care and want to be fair?” Miracle of miracles, Congress agreed and the Rehabilitation Act was amended in 1978 to apply the non-discrimination mandate across the board to the federal executive agencies.
What also happened after the 1973 Rehabilitation Act was that states and local governments amended their own civil rights laws (which had been adopted after the 1964 federal law) to include people with physical handicaps. (Nowadays, we would choose to use a more sensitive word, like “disabilities.”)
In fairness it must be noted that, during the 1980s, some states, like Maryland and the District of Columbia, were generally ahead of the federal government in recognizing people who were HIV-positive or had AIDS as covered by the anti-discrimination law. Also, state laws, by being amendments to general civil rights laws, often banned discrimination in places where the public gathered, such as restaurants, hotels, recreation areas and other commercial facilities — even when the Rehabilitation Act would not apply because there was no federal funding involved.
Then, the great phoenix, the Americans with Disabilities Act, rose in 1990 with mandates not to discriminate in employment, state and local government, public accommodations/commercial facilities and telecommunications.
Now 10 years later the ADA, like other civil rights laws, is under serious attack. Let’s look at what is happening. States and local governments are saying in their legal briefs to the Supreme Court that the law does not apply to them. Let their own (state and local) laws apply, they plead. To me this legalese is just a more high-fallutin’ way of saying “states’ rights” or more bluntly, do unto others (such as the private sector) but not unto me.
Pardon me if I missed something. But I do not believe the state and local laws have the same impact as the national imprimatur and consciousness-raising of the ADA.
Having been fortunate enough to be on the White House lawn when ADA was signed on July 26, 1990, I could not help but feel the sea change of people with disabilities being empowered. Yes, more has been done by the private sector — some businesses have been putting in ramps, and many are marketing toward people with disabilities. No one doubts there has been progress in the public sector, too.
Does anyone doubt that there is more to be done in both the state/local government area as well as the private sector?
Yet here come the state and local governments strenuously arguing that ADA’s Titles I and II do not apply to them, in effect trying to dam up the progress that has been made. If state and local governments really did not want to discriminate against their disabled citizens, then they would not be making these arguments. The practical bottom line of their legal papers is to turn a morally unacceptable act of bigotry into an act that is legally sanctioned. That is not acceptable to me.
What the states are brazenly doing under cover of legal brief is the same as what others did under the white cloak of terror and protestations of states’ rights. Only now it is all out in the open — sadly like too many other aspects of bigotry and hatred.
Out in the Open
In fact, bigotry is so out in the open that Chris Core’s popular drive-time talk show on Washington, DC’s WMAL radio held an extended discussion one recent afternoon about what to do when someone makes a totally offensive, bigoted remark.
In a well-publicized incident earlier this year, a baseball player, John Rocker, made outrageously offensive remarks against virtually all minority groups, including people who have AIDS or are HIV-positive. What were the consequences of his bigotry and intolerance? He got suspended for two weeks and may earn more in one baseball season than the Department of Justice will collect in civil penalties under the ADA during the same period of time.
When a student vandalized a menorah at a local college here, he wound up with community service, not jail time.
Most egregious were the hate killings, which occurred last year, of a gay student in Wyoming and a black man in Texas.
State and local governments need to think about the big picture. What message do the leaders of these governmental bodies send to society by making these arguments in the Supreme Court? They are openly advocating for the right not to be subject to a law which prohibits discrimination. The new weapon of choice for today’s bigot is a legal brief, not a billy club. States are seeking to go back to the past when there were no civil rights laws for people with disabilities for them to answer to. Does anyone really believe that there will be less discrimination against people with disabilities if ADA is found unconstitutional in its application to state and local governments? Will the private sector be more or less voluntarily compliant with ADA if it sees ADA being held unconstitutional (even if the precise legal application is different)?
States and local governments need to realize the catalytic impact, not only the legal issues, of these cases. If ADA’s Titles I and II are found unconstitutional as applied to state and local governments, we will take one giant leap backward and will reinforce the already too prevalent bigotry in today’s society.
LBJ and JFK must be spinning in their graves. Frankly, Scarlett, not enough people give a damn!