Welcome to today''s special session hosted by your regional Disability and Business Technical Assistance Center. This session is currently being real-time captioned on the Great Lakes web site at www.adagreatlakes.org. Today''s session is about the current question before the U.S. Supreme Court dealing with the constitutionality of Title II of the Americans with Disabilities Act. We are excited to have with us today Curt Decker, the Executive Director and Sharon Masling, the Director of Legal Services for the National Association of Protection and Advocacy Systems. I would like to welcome Curt and Sharon.
Thank you, very much. We are very happy to be here. I just want to give you a brief overview of how we plan on spending this hour. I am going to start by talking about some of the general issues involved. Then I''m going to talk about the Garrett case in particular, the briefs, the oral argument and some of the implications of Garrett. Curt is then going to touch on some of the grass roots implications of this case and the general issues. Then we are going to open it up for questions. Word of warning, this stuff is extremely complicated. So I''m going to do my best to be clear in my presentation but I''m going to apologize in advance if I start going all over the place. I think it is only going to be clarified when we open it up for questions. Again I will do my best, but a word of warning that this stuff street extremely confusing. As you know, our government is one of limited powers. Congress can enact laws, but only if congress has the authority to do so under the United States Constitution. Here there are really three sources of power that are relevant. First of all, Congress can regulate, can enact a statute when it is acting under the commerce clause if the entities that are being regulated engage in what we call interstate commerce. That is one source of power. A second source of power is when Congress regulates to enforce the protections of the equal protection clause of the 14th Amendment which says that everyone is entitled to the same equal protection of the laws. And the third source of power that Congress often regulates under is called the spending clause. If certain entities receive money from the federal government, then Congress can put particular conditions on that money. When Congress enacted the ADA, it enacted the statute under both the commerce clause and the 14th Amendment. And when it enacted Section 504 of the Rehabilitation Act it enacted the statute under the spending clause so those three sources of power are really important. One other background piece of information, there is a little Constitutional wrinkle called the 11th Amendment. The 11th Amendments says generally a state cannot be sued by an individual. However if Congress enacts the statute under the 14th Amendment what I just mentioned, then an individual can sue a state for money damages. And that is going to be important as we talk more about Garrett and its implications. Given that as background, we get to the issue in Garrett, the case as most of you know is called the University of Alabama vs Garrett. It is actually two cases. The first one involved a woman by the name of Patricia Garrett who had breast cancer. She was a nurse at the university hospital and after her boss discovered that she has breast cancer and after she took some time off for chemotherapy, she came back to her job and she was demoted, in part because her boss thought she couldn''t do the job. She was demoted and transferred to a job with less pay. The second case involved a man by the name of Milton Ash who had severe asthma and he was working at a state juvenile facility and often had to work in buildings where people were smoking, however the facility had a nonsmoking policy. So Mr. Ash asked his employer to enforce its own nonsmoking policy, he asked for the "reasonable accommodation of having the facility enforce its own policy." Both individuals sued the State of Alabama as the employer under the ADA for employment discrimination and sued both for injunction active relief to get their job back in Ms. Garrett''s case and have reasonable accommodations of enforcing the no smoking policy in Mr. Ash''s case and also asked for money damages. The State argued that Congress did not have the power to apply the ADA to the states. It argued under the 11th amendment these individuals could not sue the State of Alabama. The district court ruled in favor of the State of Alabama and the Eleventh Circuit ruled in favor of the plaintiffs. The State appealed and it went to the Supreme Court. So the basic issue before the Supreme Court in the Garrett case is: did Congress have the power to enact the ADA and apply it to the states. As I mentioned before, Congress had invoked both it is commerce clause authority and the 14th Amendment authority. However, because of the 11th Amendment, the only way Congress could have applied the ADA to the state would have been under the 14th Amendment. And under Supreme Court case law under a series of cases, two questions need to be answered to address that issue. The first issue is when the ADA was enacted, when Congress was looking at the ADA and trying to decide what remedies we want to institute, was there record of unconstitutional discrimination? Was there sufficient record before Congress of discrimination against people with disabilities by the states? So that is the first question that the Supreme Court is going to be looking at. Secondly if there was such a record, was the remedy that Congress enacted all the requirements of the statute, was that a proportionate response to the record of discrimination? In the words of the Supreme Court was that a congruent and proportionate response. So the briefs in Garrett, oral argument in Garrett, all focused on those two questions. And together all the briefs really did, I think, a great job in showing that yes, in fact there was a very significant record of state sponsored discrimination against people with disabilities; discrimination that rose to the level of violating the Constitution, of violating the equal protection clause. And secondly, because of all that discrimination the remedy that Congress enacted, all the provisions of the ADA, were a congruent and proportionate response to that discrimination. So that is kind of the hurdle that we had to prove and I think if you have a chance to look at all the briefs, there was a compelling argument there. The breadth of the briefs is extremely notable. In alot of disability rights cases you will have briefs in support of the ADA by disability organizations. But in addition in this case there was a brief by former President Bush saying, yes Congress had the power to enact the ADA under the 14th Amendments and apply it to the state. There was a brief by the Clinton administration Department of Justice. There was a brief by members of Congress on both sides of the aisle, Senators Harkin and Kennedy, Senators Dole, Hatch, and Bartlett, a real bipartisan congressional brief. There was a brief as many of you know because many of you were involved in a brief by 14 states in support of the ADA. Again the issue here is whether or not Congress had the power to apply the ADA to the states. And in all these other, what we call "states rights" cases, the states have come in on the other side and said of course Congress didn''t have the power. Here because of the work of so many advocates across the country, 14 states signed on and said "yes, we think the ADA should apply to us." And a lot of states were invited to sign on to what we have called the "states rights brief" and they decided not to. Only seven state signed on to the state''s rights brief. In addition you had numerous disability rights groups, legal groups, civil rights groups, all filings briefs with the Supreme Court and the weight of those briefs was noted during the oral argument. As some of you know oral argument occurred on October 11. That went surprisingly well. As I think I mentioned a lot of these cases, it''s been in the past five years, that the Supreme Court has really started to take what we have called the "states rights approach." And in every one of the cases that the Court has considered so far, they have found in favor of the states. They found Congress over stepped its authority and did not have the authority to enact a statute and apply it to the states. We have been fighting an up hill battle with this case. Yet during the argument the swing justices, Justice O''Connor and Justice Kennedy asked really probing questions that show they are going to be giving this careful thought. A lot of these cases have been considered slam dunks in favor of the states. This one is, we are seeing the justices struggle with it. Chances are it is going to be a 5-4 decision no matter which way it goes. But at least we were encouraged by the tenor of the argument. There are basically four potential outcomes in this case. The best case scenario would obviously be if the Court found that Congress did have the power to enact the ADA. If they found that under the 14th Amendment Congress acted properly and applied the statute to the state. That would be the best case scenario. And most of the lower courts had been finding that way as these cases were going through the lower courts. Unfortunately as some of you may know, there was a case called Kimmel which dealt with Age Discrimination Act, another civil rights statute like the ADA and since the Kimmel case came down some of the circuit courts that originally upheld the ADA started ruling the other way. But still to date the majority of circuits courts have ruled in favor of finding that Congress did have the power to enact the ADA. Clearly the worst case scenario would be if the Court found that Congress did not have the power to enact the statute under the 14th Amendment. There are also two in between scenarios. Because this case just dealt with employment, it is quite possible that the Court is going to rule either that Congress had the power to apply the employment provisions of the ADA to the states, and leave to another day the question of the rest of Title II of the ADA. Or it could find Congress did not have the power to apply the employment provisions of the statute to the state and again wait till another day to look at some of the other issues under Title II. I''m often asked so what happens if we lose Garrett? Does that mean does all of the ADA disappear? And I want to reassure everyone that the answer to that question is no. The ADA whether still be in good shape even if we lose Garrett. What will immediately happen if we were to lose Garrett, either the worst case scenario or even if they found that Congress didn''t have the power to enact the employment provisions, is that individuals will no longer be able to sue a state for money damages. That will be the immediate implication of a bad decision in Garrett. So let me repeat that. If we were to lose Garrett, the Court rules against us, in the immediate term an individual will no longer be able to sue a state for violations of the ADA for money damages. However, there is a judicial doctrine out there that allows an individual to sue a state official. So I can no longer sue the State of Alabama but I can sue the head of the Department of Health and Human Services to correct the discriminatory conduct, to stop the discrimination. The individual can no longer sue for money damages, but he could still sue for injunctive relief to stop the conduct. In addition even if we are to lose Garrett, the federal government can still go and enforce the ADA and can still seek money damages on behalf of individuals. The Department of Justice would be the one filing suit, the Office of Civil Rights and HHS or the Department of Education could still conduct investigations. In addition, the Section 504 of the Rehabilitation Act would still be very good law. As most of you know Section 504 applies to recipients of federal financial assistance. So the ADA is a little broader, Title II covers all state and local governments and all public entities. Section 504 is only limited to entities that receive federal money, but that is still the large majority of entities do receive federal money. Since Section 504, as I said before, is spending clause legislation, an individual could still sue a state under Section 504 both for injunction active relief and money damages. Of course we could still sue under state law. So the immediate implications of Garrett, although bad, are not horrible. The concern with Garrett and the reason people have been so energized but this case and why there was such an outpouring of effort, why there was such a huge number of briefs, is that once if we were to lose Garrett, then we are going to be fighting a lot of other challenges to the ADA. Once we lose-if the Court were to find that the Congress didn''t have the power to enact the statute under the 14th Amendment then we will see challenges under the commerce clause then challenges to Section 504 under the spending clause and then challenges to the judicial doctrine I referenced before about suing state officials. So basically it is kind of like a house of cards and the 14th Amendment issues in Garrett is keeping the house of cards solid. Once we pull that out, people are going to start pulling card after card away. And it is possible we could lose a lot in the long run. We are not there yet even if we lose Garrett. So I do want to reassure people of that at this point we are kind of in a waiting game. The Court heard oral argument as I said, back in October. And it could issue a decision anywhere between tomorrow and the end of the term which will be the end of June. The Court is always out of session by July 4th. So by July 4th, 2001 we will have a decision. But it could come as early as tomorrow and we just kind of have to wait and see. Once the case comes down, then we have to spend a lot of time looking at it, seeing how broadly or narrowly the Court rules, and what the implications are. Then we will need to figure out our next steps. With that, I guess I will turn it over to Curt for a couple comments.
Thank you, Sharon. And I hope that we haven''t totally confused you about these arcane twist and turns of constitutional law. But as Sharon said, while there may not be immediate danger to our ability to enforce the rights of people with disabilities under the ADA, there are some ominous future elements. And of course the question that I get from around the country is what could we do to remedy any negative decision either the worst case scenario as laid out by Sharon or the less serious issue of narrow decision based on employment? We have several challenges. Obviously one of the big problems that we face is that if there is a decision that Congress over stepped its power under the 14th Amendment, it is not possible to necessarily remedy that through congressional action. Because Congress cannot exceed the authority laid out by the Constitution. So there is not a simple legislative fix even if we had the will in the Congress, the next Congress coming in to existence after the first of the year. So it is not going to be a simple matter of going in and lobbying Congress to fix the mistake. So that is going to leave us with a problem in that regard. One of the months positive aspects of this experience that Sharon alluded to was the very important and extensive involvement of grass roots, many of you on the call included, in bringing this issue out of usually the very narrow rarified air of courtrooms and lawyers arguing these fine points of constitutional law and bringing it really out into the streets. This began with the Olmstead situation a year ago where coalitions formed in many of the state and tried to convince attorney generals and/or governors to not sign on to the state rights briefs, in that experience one of the first times we ever tried that was the ability to pull off about 12 states who had already signed on to that brief. With the notice that we had with the Garrett case and the obviously major impact it could have, we were able to replicate that effort throughout the states and we were fortunate to have the State of Minnesota that was willing to write a brief in support of the ADA. So we actually had a brief that we could argue that people should sign on to. I do believe that the grass roots activity that got the 14 states signing on to the Minnesota brief and in the many states who did not sign on to either brief, which was also I considered a victory because those state normally would have signed on to the opposing brief by not signing on, was another signal that the grass roots activity had really made an impact on political operatives in their state. And I would also even say that the people who were in the seven states that signed on, tried very hard and made some important inroads in those states power brokers about the power of the disability community. And I believe that with the worst case scenario occurring, we are going to have to return to those grass roots coalitions in the states to try to move forward in improving state laws especially in the states where they don''t have nondiscrimination laws based on disability. And also be prepared to work with state entities to resolve existing discrimination and discriminatory practices as well as other service issues such as those raised by the community integration mandates. So there is going to have to be a two tiered strategy to work at the federal level to see what we can do to emilurate the problems of a negative decision but also working at the state level to make sure we are bolstering the rights of people with disabilities. The consortium of citizens with disabilities in Washington, which is an association of about 100 national disability groups, through their civil rights task force will be working and watching very closely the new Congress and its approach to ADA. We did, as you probably know, have several attempts over the last two years to weaken the ADA on a particular set of issues. And I am concerned that a negative decision in the Garrett case will embolden those groups that have never been happy within ADA in any of its ramifications and implications to come back into Congress and try to use the fact that the Supreme Court may have made this statement about the efficacy of the ADA to go after other parts of the ADA. So we will have to be vigilent both at the federal level and the state level to make sure that we contain any damage that can occur. Obviously we are hopeful for the better case scenario which is a positive statement by the Supreme Court about Congress''s power to enact the ADA. And as Sharon said, we are basically in a wait and see attitude. At this point I think we should open it up for questions and get a sense of how the audience is feeling about this information.
Great, thanks Sharon and Curt. I feel like I was back in my high school civics class, I see the terms commerce clause and spending clause and I think those are a couple of questions I got wrong on that test. Do we have our first question? Could you introduce your name and the location?
From Rick Edwards and State of Indiana.
I have a question about the amicus brief that was submitted. I want to find out what kinds of real impact it has had on the Supreme Court itself in their decision making process.
That is a great question. Unfortunately we will never completely know the answer to that. Certainly we have seen what Supreme Court justices have said in the past and some spend, as you know there are nine justices, a lot of time reviewing amicus briefs, some don''t look at them at all. The majority of them will ask their law clerks to review the briefs and pull out the ones the clerk thinks the justice should read. What was notable during the oral argument on the October 11 was that justice Breyer actually mentioned the amicus briefs during the oral argument and said that "look at all the amicus briefs, they show this huge record of discrimination." We know at least he head read it and he by asking the question during the oral arguments was basically notifying the other justices they should look at the briefs as well.
Great, thanks Rick. That kind of goes back to a question, though, when you were listing all of the organizations that had submitted briefs, it is amazing, you know quite literally a who is who of organizations. How much does that kind of name dropping sway the Supreme Court? Do we really have any idea if-getting a brief from former President Bush or from a bipartisan group of senators or congress people, how much does it sway?
Again we just don''t completely know. It certainly doesn''t hurt. In some cases especially for the swing justices that might be what will push them over to the other side. We always want to present the best case to the Court. And a number of commentators said that this case cannot have been in a better position in terms of the number of briefs, the authors of the briefs, the arguments that were raised. But with the Supreme Court, no one is ever clear completely how they operate
I think the other comment is because of the complexity of this particular issue, and the page limit that the parties had imposed on them by the Court, they are really in this particular case, there is the need to really expand the information and the arguments that were involved in this case. And the amicus briefs, especially the ones provided by the more professional organizations as opposed to say the political briefs, I think were very important in expanding on various points that needed to be enlarged but just could not be handled in the main briefs. So I think they had a dual role of bringing that bipartisan and sort of raising the level of importance of the case in the minds of the justices as well as giving us an opportunity to expand on some of these very complex Constitutional issues.
Let me also ask you this while we are waiting for our next question, I''m sure especially this week with another big issue going to the Supreme Court, that we will continue to learn more and more about each justice and their own dynamics of how they lean, one way or another. We have an on-line question that goes to say that many have reported that O''Connor is one of the turning justices on this issue, and given her comments in Sutton would be the person that could either make it a 5-4 versus a 4-5 decision. Do you have any comments or thoughts on that?
Sure. As you look as I mentioned before, there have been a series of what we call state rights cases starting back probably in 1995. In every single case it has been a 5-4 decision with Justices O''Connor, Kennedy, Thomas, Scalia and Rehnquist being the five votes in the majority. So we need to pull away at least one of those five to get a win here in Garrett. And based upon both their writing in the past and the questions they asked during oral argument the two most likely justices are Justice O''Connor or Justice Kennedy. And while it is true Justice O''Connor''s opinion in Sutton was not favorable to the ADA, that was a case of statutory interpretation and this is a very different issue. This is an issue of whether or not congress has the Constitutional authority at all to enact the statute. People do believe that she is someone who could be persuaded by the record of discrimination that was before Congress, which is why the briefs spent so much time focusing on that issue.
In the opening you talked about 14th and the 11th Amendment. What I was wondering is, would this then mean that each state could enact its own ADA and therefore eliminate that question?
Yes. In a lot of states they already have strong statutes that are as strong as if not stronger than, the ADA. This, the 11th Amendment says an individual cannot sue a state under federal law. So an individual could sue his or her own state under state law. And certainly as Curt alluded to earlier, if we were to get a negative decision in Garrett and then some of the other parade of horribles that I was alluding to started to occur, then yes our best chance of success would be to work on enacting extremely strong state laws so people could have recourse under their state law. Indeed already some people are choosing to go into state court or to file under state law because the laws are as strong if not stronger than the ADA
That''s right, Sharon. As I understand it, when we were originally creating the ADA in 1990, we knew there were 36 states that had some form of protections against discrimination based on disability with a range of coverage and remedies. Many people still utilize those state statutes in lieu of the ADA because depending on how that particular statute is created, it may mean for easier enforcement. As Sharon alluded, there are states that have stronger protections. I know, for example, in Maryland an employer with four or more employees is covered by the Maryland statute whereas the ADA says you have to have 15 or more employees. There may be more efficient enforcement procedures, a human relations commission that will hear a case much quicker and much more efficiently than say an EEOC charge at the federal level. So there are very good reasons to look to your state statute and for those states that don''t have that kind of statute to be very active in the state legislature in trying to create that secondary protection level for all the reasons I just mentioned. In fact I know there are large urban areas that may have city human relations commissions that ban discrimination based on a variety of protected classes, including disability. I think in the disability community we should not come become lethargic because we passed the ADA. Remember in the ADA we made many many compromises in 1990 in order to get passage during that time. There are lots of areas of the ADA that many of us wish were much much stronger. And you may be able to correct some of those inadequacies through aggressive state legislative advocacy.
Great, thanks Curt.
This is Martha Younger White. Hello. I have two questions: First of all I have read different summaries of the Garrett case. And it seems depending on who is writing them, how you get them summarized. So I was interested in your summary that alludes to the fact that the Title II service provision may also be impacted by this decision. But I hear from Sharon that it actually depends on the decision that comes from the justices. So I guess I''m a little confused. Is it not just related to employment? Is it also a broader possibility for the services of Title II?
Both the Bazelon piece and the NAPAS talk about this. It is unclear how the Court will rule. The precise question before the Court is did Congress have the power to apply the ADA to the states and since coverage under states falls under Title II of the ADA, that includes all the employment provisions but it includes all the other provisions that apply to state and local governments, to services provisions, transportation, education, voting, etc. However, the issue, the two cases that were before the Supreme Court the ones dealing with Pat Garrett and Milton Ash were both employment cases. So the Supreme Court has the option if they didn''t want to issue a broad ruling, they have the ability on their own to narrow the issue and say "we are going to save the question about all of Title II to another day. We are just going to look at employment today because those were the specific facts before us." So when people have described the case in writing, it is in part because we don''t have that crystal ball, we don''t know what the Court is going to do. It is possible that they will issue a very narrow decision. It is also possible that they will issue a very broad decision that could effect all of Title II and we just don''t know until the decision comes down.
I think, too, Sharon one of the points of clarification and I am sure that I was probably reading along the same lines that Martha was, we have this question that comes up with would this ruling undo everything that the Court just said in Olmstead?
I think Sharon has laid out if they take the broader view and struck down all of Title II, it would certainly have impact on Olmstead. Olmstead which is a statutory interpretation of the ADA would fall under the broader-
But not yet, Curt.
If the Court were to issue a broad decision under all of Title II, as I said before the immediate impact is that an individual can no longer sue a state for money damages. So if you had an Olmstead claim and were also asking the state for compensatory damages, you can no longer ask the state for money damages. But as I said before there is still this doctrine out there that says you can sue a state official. So immediately if we were to have a negative decision in Garrett you could still sue a state official under Olmstead. So it wouldn''t immediately undo everything that happened in Olmstead. And as Curt and I both said before the federal government could still sue under Olmstead
That kind of leads us into one of the next on-line questions that we have here. As far as even if the Court rules in favor of the ADA constitutionality, what happens to those cases that are in circuits across the country that ruled against the individual due to their circuit ruling of unconstitutionality? Would plaintiffs be able to bring those cases back up for reconsideration? How does that work?
That is a very good question. I want to finish up with the Olmstead thing. The reason people are so concerned about Olmstead even though immediately there wouldn''t be much of an impact there then would be challenges to ADA under the commerce clause which could be another discussion. I want to point that out, that is what the concern is. The immediate impact would be there wouldn''t be such a big impact immediately but there could be long term implications, and there would be a lot of challenges to the ADA under the commerce clause that is why Olmstead is threatened by a bad decision in Garrett but it won''t disappear overnight. In answer to the on-line question about what happens to all those cases, it depends on where the case is at. The big implication if we get a good decision in Garrett, that means all the bad circuit court decisions basically disappear. They will become bad law and the law of the land and the law that would apply to all circuits would be the ADA is constitutional, Congress did have the power to apply ADA to the states and the states have to comply. About the individual cases, where are they in the process? Using Pat Garrett as an example when she sued she was suing to get her job back. It is now five years or four or five years since she filed her lawsuit. She has since retired. So the remedies that she would be seeking would be different now.
This is Bob in California. If we lose the Garrett decision, is it likely that these attacks or will there be attacks on the telecommunications section of the ADA?
That is a great question and I am not as familiar with those provisions of the statute so I will answer it but with a huge maybe. If the telecommunications provisions apply to the states, then as I said before you can no longer-if we lose Garrett you can no longer sue a state for money damages. You could still sue a state official to prevent the discrimination. So I think again immediately there wouldn''t be much of an impact. But there might be some, depending on what the state requirements are. I apologize that is outside of my area of expertise. So you may have to do a little further research or I can help you after this call to get the answer to that.
Our next question from Margaret at the office of Senator Tom Harkin.
Actually some of my questions have been answered. Could you explain a little bit more about the commerce section, if the 14th Amendment goes what would be next? What that means?
I will try. As I said before, Congress had two sources of power when it enacted the ADA, one was the 14th Amendment and the other is the commerce clause. If we were to lose Garrett, the Court would be saying that the only other source of power that Congress had when it enacted the ADA would have been the commerce clause. Because by losing Garrett, the Court was saying Congress did not have the power under the 14th Amendment to enact the statute. Under the commerce clause you can only enact the statute if you are regulating interstate commerce. So clearly employment would be covered under the commerce clause, because that involves commerce. I go in, I do my job, I get paid for it. Similarly, all of the Title III provisions of the ADA, which deal with public accommodations, the large majority if not all of them, would be protected under the commerce clause because it will involve things that regulate that involve commerce. I go into a store and buy a pair of shoes, that is involved in commerce. Even if I go to an university I have to pay a tuition. The question then is what about Title II? State and local government? Does access to the courts, does access to the public library, does that involve commerce? And that is a little less clear. Certainly disability rights lawyers would argue that it does, but it is a slightly more difficult argument to make. And so that is what we expect the states to be arguing if we lose Garrett. They have started to raise the argument and so far have been very unsuccessful in doing it which gives us great hope. But we expect there would be more sophisticated arguments under the commerce clause if we were to lose Garrett.
Our next question comes from Barbara of Pace.
This question is kind of in connection between the challenge to the ADA and other policies with Affirmative Action. The question is: does the implication of the U.S. briefs that we have got summarized here mean that the ADA will be time limited? What happens with the passage of time, for example in Affirmative Action case their argument is based on compensation and remuneration. And that has led to arguments that the problem has gone away and there isn''t need for continued action. So is there a connection there with the ADA in terms of like eventually they will be able to say well, we have pretty much dealt with that so we don''t need the ADA any more? And then they will get rid of the ADA like they have been getting rid of affirmative action policies?
I don''t think so. Again, the Supreme Court could do many things that we don''t expect them to do. But the question as articulated in all the Supreme Court cases is was there a record of discrimination at the time the statute was enacted? So certainly part of our struggle even when we were writing the briefs was we could point to lots of discrimination in the early 1900s and we are challenged with pointing to discrimination in the 1980s. Assuming the Court were to find there was a sufficient record of discrimination at the time that the statute was enacted, that is my understanding of all that we need to prove. In the future, could there be future challenges? Of course. What this court will do, who knows. But at least the way they have articulated the test right now is it is at the time the statute was enacted, which here would have been 1989, 1990.
I like to also remind people that we have John Wodatch from the Department of Justice joining us each July to give us kind of an update of cases that have been decided. And we anticipate that this decision will be one of those that he highlights during that session. So we would encourage people to participate in the next July session as that decision comes out.
Our next question from Don of State of Alaska.
My question is basically this: You mentioned that if we lose the Garrett case, a person would lose their right to sue a state and get compensatory and punitive damages; is that correct?
Money damages, yes, that is correct.
I thought that the money damages came from the Civil Rights Act of 1991. And that is what gave people compensatory and punitive damages. And is that not true?
Well, the money damages come from the ADA. The ADA cites the Civil Rights Act of 1991, it is the same damages. The problem is the 11th Amendment which says you cannot sue a state for money damages no matter what the federal statute says unless the federal statute was enacted under the 14th Amendment. That is why the whole issue here is whether or not Congress had the power under the 14th Amendment to enact the ADA. It doesn''t matter what the statute says if Congress didn''t have the power to enact it in the first place.
Thanks for your question.
This is Dan from the Illinois Department of Human Services. My question is that assuming that the Supreme Court finds that the ADA is not binding on the state, what enforcement authority if any would the EEOC have ensure that states that are complying with the requirements of the ADA?
The EEOC would have its traditional enforcement authority. The Garrett case would only affect the right of individuals to sue a state. The EEOC could still go forward and bring its own lawsuit.
Great thanks for your question. We do have a couple more questions come in on line. This was argued in October the Supreme Court very busy, particularly this week and probably next week and the week after that, but do you see them typically coming out with something before July, considering that they heard the case so early? Or that is still up for grabs?
It is completely up for grabs. In general the cases that are argued in October often the decisions do come down January, February and March. But some of the more complicated or controversial cases often don''t come down till the very end of the session which would be the end of June. So my prediction is either we are going to see something by early to mid-March or we are not going to see something till the end of June.
I''m going to kind of throw you a curve ball here, too, there are a couple of other disability related cases that the Supreme Court is going to look at this term, could you also talk a little bit about those Sharon
There is a curve ball. The other very well known ADA case that the Supreme Court is considering is the Casey Martin case which many of you know involves the golfer that has a disability and therefore requested the ability to use a cart while playing during PGA competition. That case, the Supreme Court is going to hear oral argument on in January. The issue there is whether or not under the ADA the PGA has to provide him a cart. Is that a reasonable modification of its "walking rule." There is another case, it is an ADA case but really deals with the issue of attorney''s fees. And then there is another case under Title VI of the Civil Rights Act that depending on how the Court rules, may or may not have some implications for Section 504 and the ADA. But it is still unclear at this point, it is hard to predict right now.
Great, thanks. We would like to thank both of you for taking time out of your busy schedule. You have been instrumental on getting the word out as far as the previous cases before the Supreme Court and this case in particular. When we do get a decision from the Supreme Court do you anticipate any type of resource information that you might have posted to your web site?
Sure. I would like to refer people to our web site in general. We try to keep it up to date about what is happening on this issue and other disability rights issues. www.protectionandadvocacy.com. If you are interested in the particular issue you will see an icon on the home page, called "ADA at Risk, University of Alabama vs Garrett" and there are resources that people can read on. Once the decision comes down we will provide information on the case and additional information as it involves. The other site that Jennifer mentioned that has complementary material is the Bazelon Center www.bazelon.org. Those are the two sites you should keep watching.
We particularly pointed people to your web site and the Bazelon site for previous decisions as there is a lot of press and a lot of articles and stories that come out that aren''t fully accurate. So we certainly hope to point people to those particular web site for dispelling the myths and getting out more accurate information. So we do appreciate that. You can link to that through the Great Lakes web site as well. Thank you so much. Thank you both Curt and Sharon for joining us today. We will keep our fingers crossed. For those of you that joined us today, we hope to have you back next month for another special session on December 12th. We are going to do a special 90 minute session next month where we will have guest speakers Bruce Flynn of Watson Wyatt Worldwide and consultant Jennifer Eckel. They will be talking about best practices of organizations utilizing the disability management strategies. Bruce Flynn at Watson Wyatt Worldwide has done surveys over the past couple of years looking at the issue-the implementation of disability management strategies, how that plays out for organizations that have some type of disability accommodation, back to work policies, in place versus those that don''t and where those organizations can benefit when it comes to production, lowering production costs and getting people active in the workplace. So we hope to have all of you back December 12th for that session. Thanks for joining us today, we hope to have you back next month.