Subject: Analysis of University of Alabama v. Garrett
From: James Levy (jrlevy@u.washington.edu)
Date: Thu Feb 22 2001 - 03:57:21 PST
What are the effects of the U.S. Supreme Court’s opinion in Garrett?
How will this affect other legal cases alleging disability discrimination,
especially in Washington State?
What should lawyers, advocates, people with disabilities, and the American
community know about Garrett?
This writing will hopefully provide useful legal analysis and thoughts about
what the Garrett opinion means for our society, both practically and
symbolically. Ideally, I would like to have a discussion among the people
subscribed to these lists, especially (but not limited to) those advocates
who might need to apply or contend with the Garrett opinion, including
self-advocates, policy advocates, lawyers or other non-lawyer advocates.
Everyone’s thoughts and insight are welcome.
The Garrett opinion may be located at:
http://www.supremecourtus.gov/opinions/00pdf/99-1240.pdf
First, a caveat. I do not have the final word on the Garrett opinion.
Others might have different interpretations of the case and its
implications. The actual effect of the Garrett opinion, and how people,
agencies and institutions respond to it, remains to be seen. This is why a
discussion of Garrett is important, in the courts, the legislative chambers,
and among us as members of society at large.
Next, a word on the precedence of a U.S. Supreme Court opinion. The U.S.
Supreme Court is the ultimate interpreter of the U.S. Constitution and is
the final interpreter of enacted federal statute, subject to the amendment
of a federal statute or the Constitution. The Supreme Court does not give
out advisory opinions; it decides the legal issues that are presented to it
in the form of an actual controversy between two or more parties. Lower
courts must follow the legal rulings of a Supreme Court opinion, but do not
necessarily have to follow statements in the opinion that are not legal
rulings and do not contribute to deciding the case at hand (i.e. dicta).
Also, please note that the Syllabus of the opinion and any headnotes that
might be at the beginning are not part of the opinion and have no value as
precedent for lower courts to follow.
THE GARRETT MAJORITY OPINION
I will not go into detail about the facts behind the lawsuit. The key facts
are that the plaintiffs in these adjoined cases were two employees of the
State of Alabama who claim to have been discriminated against on the basis
of their disabilities.
The issue that needed to be decided, as identified by the Supreme Court, was
“whether employees of the State of Alabama may recover money damages by
reason of the State’s failure to comply with the provisions of Title I
[Employment] of the [ADA]” (pg 1). The Court held that the Eleventh
Amendment bars such lawsuits on the basis of a State’s inherent Sovereign
Immunity.
This case decided that, although it explicitly intended to do so, Congress
did not have valid Constitutional authority to allow private individuals to
sue States for money damages based on violations of Title I of the ADA, the
title dealing with employment. In order to subject non-consenting States to
private lawsuits in federal court, Congress must be acting on the basis of
the Fourteenth Amendment, which states in part: “No State shall . . . deny
to any person within its jurisdiction the equal protection of the laws.”
[The Equal Protection Clause]. Congress can enact “appropriate legislation”
based upon that clause, including prohibiting conduct that might not be
unconstitutional itself, but will remedy and deter violations of rights
guaranteed by the Equal Protection Clause. However, such legislation must
show congruence between the injury to be prevented and the means adopted to
prevent the injury, as well as show proportionality between the means and
the goals (pg 7).
As a preliminary matter, the Court discusses the level of constitutional
protection provided to people with disabilities by the Equal Protection
Clause. Of three levels of protection (heightened, intermediate, and
rational basis scrutiny) people with disabilities, as a group, have the
lowest level of protection, rational-basis scrutiny, similar to the
protections of the public-at-large. This is in part because of how large
and diverse the group “people with disabilities” is. State action,
including legislation and employment decisions, are legitimate under
rational basis scrutiny if it “rationally furthers a the purpose identified
by the State.” (pg 9). Most state action will be upheld under this level of
“protection.” Therefore, States are not required under the Constitution to
provide “special accommodations for the disabled.” (pg 9). Actions based
solely on negative attitudes or fear, and not at all based on legitimate
factors should be struck down under rational basis scrutiny.
The Court next determines that Congress failed to show a history and pattern
of unconstitutional employment discrimination by States against people with
disabilities. Noting that only State and not local governments are
protected by the Eleventh Amendment Sovereign Immunity, the Court determines
that the Congressional record is inadequate to show such a history and
pattern, because (1) the great majority of the examples of discrimination in
the record either do not involve States or does not involve discrimination
in employment; (2) the limited number of cases cited in the record falls far
short of establishing a pattern of unconstitutional employment
discrimination, given the 43,000,000 people with disabilities in this
country and 4,500,000 employees of State governments; (3) the “unexamined,
anecdotal” nature of the accounts of discrimination; and (4) the failure to
mention State discrimination in employment both in the Congressional record
and in the report of the Task Force delegated with the responsibility to
gather the accounts of discrimination.
Finally, the Court finds a problem with the rights and remedies (the means)
of the ADA, specifically that they are not congruent with and not
proportional to the limited goal of ending disability discrimination. The
ADA protections include, for example, (1) rights to reasonable accommodation
and the modification of existing facilities in the face of scarce resources
on the part of the employer; (2) a greater burden of proof on the employer;
and (3) allowing claims based on unintentional, adverse impacts on people
with disabilities (i.e. disparate impact). As noted above, the Equal
Protection Clause of the 14th Amendment does not provide any more
protections, whether procedural or substantive, to people with disabilities
as a group than to the citizenry at large.
In my opinion, the Concurrence by Kennedy, joined by O’Connor, does not add
anything to the majority opinion other than more flowery language and a
disturbingly paternalistic attitude toward people with disabilities.
DISCUSSION: LIMITATIONS AND IMPLICATIONS
1. The primary holding of this case applies only to ADA Title I claims
against State employers for monetary damages.
Cases brought under Title II of the ADA are explicitly unaffected (see
footnote1), where individuals are suing states for unlawful discrimination
in the provision of public services or for the lack of accessible government
facilities. Note however that while the Supreme Court has not decided
whether or not Title II is trumped by Sovereign Immunity, most of the
Appellate Courts have, and a split exists among those courts, making it
likely that the Supreme Court will decide the matter in the future. In the
Ninth Circuit, which includes Washington State, the Circuit Court has held
that Congress constitutionally abrogated State sovereign immunity in
enacting Title II. Although some courts disagree, Title II has also been
applied to employment by some courts, just as the Rehabilitation Act has
been (see below).
2. Also unaffected are private sector employers and municipal, county, and
other local governments. Sovereign Immunity, with its basis in the English
monarchy, protects only State governments. However, in some cases, such as
the delegation of State duties to private entities and local governments,
private-sector employers and local governments might be considered State
actors for purposes of Sovereign Immunity. For example, this reasoning has
led some courts to the consideration of school districts as State actors for
certain purposes.
3. State governments are still required to comply with Title I of the ADA.
This opinion only eliminates lawsuits for monetary damages by individuals.
A State can still be sued for monetary damages under Title I by the U.S.
Government, specifically the Department of Justice (with assistance from the
Equal Employment Opportunity Commission). Increased support for direct
enforcement could end up being a true test of the commitment of the new Bush
administration and its new Attorney General, John Ashcroft.
4. An individual may also in certain circumstances bring a lawsuit for
injunctive relief (i.e. non-monetary relief, e.g. preventing future
discrimination or requiring the employee to be reinstate an employee) under
the Ex Parte Young doctrine. However, such an individual might find it more
difficult, but not impossible, to find an attorney to represent him or her
where there is no opportunity for monetary damages.
5. States may also voluntarily consent to be sued when they would
otherwise be protected by their Sovereign Immunity. While on the face of
it, that concept might seem absurd, some courts have held that accepting
federal funds might act as adequate consent. This reasoning has been
applied in IDEA cases and Rehabilitation Act cases, although there is by no
means agreement among the courts on this rationale.
6. An individual might be able to sue a State agency under section 504 of
the Rehabilitation Act, which prohibits discrimination against people with
disabilities in agencies, programs or organizations that accept federal
funds. Section 504 implicitly includes protections of employees in their
employment.
7. State governments still must comply with their own civil rights laws
protecting people with disabilities, including State workers. In Washington
State, RCW 49.60 gives State employees many of the same protections and
remedies as Title I of the ADA, including damages and a requirement of
reasonable accommodation. In fact, many attorneys prefer basing disability
discrimination in employment claims on RCW 49.60, and not in the ADA.
Someone on this list might want to discuss this.
8. The Garrett Court has affirmed that as a group, state action affecting
people with disabilities receives only the low-level scrutiny through the
rational basis test, as opposed to the heightened/strict scrutiny of
race-based state action and the intermediate scrutiny of gender-based state
action. In doing so, they state that the Constitutional floor of protection
is quite low indeed for people with disabilities. “Special” accommodations
are not required under the Constitution, even though reasonable
accommodations or modifications are many times a prerequisite for inclusion
and participation in society. This is very troubling and in the future may
act to further limit the civil rights protections of people with
disabilities. Keep watch especially for a Title II (Public Services) case
addressing Sovereign Immunity and Congress’ power to enact legislation based
on the Equal Protection Clause. That case could end up being the Garrett
case again, as the Title II issue was not discussed in the opinion.
9. The Garrett Court seems to have upped the already strict requirements
for abrogating a non-consenting State’s sovereign immunity. Not only does
Congress have to intentionally and explicitly do so, but their legislative
actions have to fall within the narrowing path of valid Congressional
authority under the Fourteenth Amendment. The Court’s requirements for
proper Congressional findings in support of legislation based on the Equal
Protection Clause is daunting. It seems there needs to be evidence stronger
than the mere direct testimony of those people with disabilities, such as
evidence of failed lawsuits, statistics and studies. Where does the voice
of those most affected go? To the back of the line or the bottom of a page?
10. Many people (with and without disabilities), private employers,
officials and civil servants are going to hear about the Garrett case or
glance at it and assume that protections for workers with disabilities have
now been removed. Advocates and legal educators need to double their
efforts in getting the message out that there still are protections for
workers with disabilities, in addition to the details of those protections
and the responsibilities of employers.
Remember, action and advocacy were important before this opinion and are
still important after the opinion. The final effects of Garrett depend
primarily upon our reaction to it. I look forward to your responses.
James R. Levy, J.D.
Research Associate
Center for Technology and Disability Studies
University of Washington
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