by Charles S.P. Hodge
On Wednesday morning, October 11, the United States Supreme Court heard oral arguments in the landmark ADA case, University of Alabama et al v. Garrett et al. In the questions posed for review, the state of Alabama challenged the constitutionality of Titles I and II of the ADA as violating the state immunity protections contained in the 11th Amendment to the Constitution. Alabama argued in its written submissions to the court that the provisions of the ADA permitting private aggrieved individuals with disabilities to bring suit in federal court against allegedly discriminating entities of state and local governments were incongruous and disproportionate to the facts found by Congress regarding state and local governments, and that the remedial enforcement provisions of the ADA were beyond Congress’ properly interpreted constitutional power as applied to the states.
Jeffrey Sutton, counsel for the state of Alabama, began the oral argument and was almost immediately confronted with questions from Justices Stevens, Breyer and Sandra Day O’Connor. These justices pressed Sutton to explain why the copious findings of Congress in the ADA and in the contemporaneous committee reports leading up to and supporting enactment of the ADA of arguably unconstitutional discrimination against individuals with disabilities were not sufficient to warrant and justify enactment of the remedial provisions directed against the states in that law. Sutton did his best to argue that the ADA, because of its wide scope, was really a constitutional amendment in the guise of a statute enacted under the Congress’ 14th Amendment, section 5 power and directed against the states.
Attorney Michael Gottesman, who argued on behalf of the disabled respondents, did his best to argue that the copious findings of disability discrimination by entities of state and local governments made by Congress as part of its deliberations on the ADA are sufficient under the Constitution to justify the remedial provisions against the states enacted by Congress in the ADA. Justices Scalia and Kennedy as well as Chief Justice Rehnquist pressed Gottesman to explain whether these findings by Congress truly constituted findings of unconstitutional 14th Amendment discrimination by the states as required by the court in its most recent state immunity decisions. Gottesman responded that the long-standing and pervasive discrimination by the states against people with disabilities reflected in the congressional record of deliberations on the ADA did rise to the height of findings of unconstitutional discrimination by the states.
The questioning of Justice O’Connor, who has been part of the court’s five-member majority in the recent spate of state sovereign immunity decisions, is most interesting, as analysts seek to find omens in the tea leaves of the justices’ questions and comments at oral argument. At one point in the proceedings, she asked Gottesman a theoretical question about whether, because of the complexity of disability discrimination, the earlier decision of the court in City of Cleburne, Texas v. Cleburne Living Center could be read to warrant the establishment of a heightened scrutiny standard under the Constitution for disability discrimination by the states? The apparent willingness of O’Connor to seriously consider elevating disability discrimination by state and local governments beyond the rational basis standard to a heightened scrutiny standard has to be viewed as an encouraging omen by supporters of the ADA.
However, not all of the omens gleaned from the justices’ questions and comments were encouraging to ADA supporters. Deputy Solicitor General Seth Waxman, arguing for the United States as amicus curiae, was rebuked by Kennedy for his glib reference to the use of the “magic words” from the court’s recent state immunity decisions. Kennedy stated forcefully for the record his belief that when Congress intends to alter the balance of our federalism, it must do so clearly and explicitly. This reinforced Kennedy’s hostility to the more expansive arguments being proffered by the respondents.
One final encouraging sign came from the passing comment of Chief Justice William Rehnquist. His view was that even if the Supreme Court were to invalidate the challenged sections of the ADA, Congress could theoretically pass the same provisions again, which would pass constitutional muster so long as Congress made the necessary findings that, in addition to the existence of long-standing and pervasive discrimination by the states against individuals with disabilities, the various state law prohibitions against disability discrimination by entities of state government were not being adequately or effectively enforced, thus warranting the remedial provisions enacted by Congress. If the court does reach an adverse decision to the ADA in the Garrett case, the views expressed by Rehnquist are somewhat comforting because many disability rights advocates had feared that the only possible remedy in the face of an adverse decision by the court would be the arduous prospect of having to campaign for passage in Congress and ratification by the states of a constitutional amendment outlawing disability discrimination by the states. The view that Congress might still be able to enact remedial provisions for disability discrimination perpetrated by entities of state and local governments which could pass constitutional muster so long as certain findings were made by Congress is somewhat reassuring.
Clearly, as reflected in the questioning by the justices, the high court is closely divided concerning the constitutional issues raised and arguments made in the Garrett case. We can now only wait on pins and needles for the court’s decision, which should be rendered early in 2001. While I remain hopeful that Justice O’Connor can be wooed over to hold the present ADA as constitutional and not violating the strictures of the 11th Amendment, we as disability rights advocates must prepare ourselves for the worst and prepare ourselves to lobby Congress to enact a new ADA which will pass constitutional muster with the findings required by the Supreme Court, if necessary. Stay tuned to this unfolding legal saga; we will keep you informed in the pages of “The Braille Forum.”