Thanks for such a complete explanation of the 11th amendment concerns!
Last year citizens with disabilities faced the possible loss of the "most integrated setting" provision of Title II of the Americans with Disabilities Act in Olmstead v. L.C & E.W. But we fought it and we won. Now we face losing ALL protection from discrimination against people with disabilities by the states.
The ADA was already hit by the 8th Circuit Court (arkansas). It decided (Alsbrook decision) that Title II of the ADA and Section 504 of the Rehabilitation Act are unconstitutional. Right now in the states covered in the 8th circuit they do not have to put in curb cuts, buy lifts with buses, provide interpreters, or implement Olmstead - meaning the right of disabled to recieve services in the community rather than be forced into institutions. All Title II cases at the district level were thrown out of court. I think Arkansas, Missouri, Nebraska, North Dakota, South Dakota, Iowa are in the eighth circuit.
According to those in the Justice Dept. the Supreme definitely WILL be taking a case testing the constitutionality of ADA this year.
The Court stated in Kimel that, "Old age also does not define a discrete and insular minority because all persons, if they live out their normal life spans, will experience it." Even though the Congress did specifically recognize that, "individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society," our foremost attorney, Stephen Gold in Philadelphia is asking historians and others for documentation of discrimination in each state in preparation for the battle that lies ahead.
In 1999 the Supreme Court already shreaded the employment discrimination provisions by limiting the definition of disability and thus narrowing which disabled persons are eligible to file employment discrimination cases (Sutton). It was a horrific decision. There is a definite threat to the ADA from this court.
You may be interested in the next issue of the UC Berkeley Journal of Employment and Labor Law on the Backlash against the Americans with Disabilities Act. I have an article in there "Backlash, the Political Economy, and Structural Exclusion" and there are 16 others writing about the backlash. Citation: 21 Berkeley J. Emp. & Lab. L.(forthcoming Feb. 2000).
Marta
JKSCHW at aol.com wrote:
> Marta: Yes, I checked the latest edition of People's History at Border's
> the other day and Zinn added the Americans with Disabilities Act.
> Hooray for Howard! >>
>
> A new thread. This is a little technical, but if you care about
> discrimination law protection for older people, women, and the disabled, you
> should read through this.
> The 11th amendment to the the Constitution sn't exactly on everybody's
> tongue, but you all should know that these prorections are already
> compromised and cut back,a nd worse is to come.
>
> Although you cannot read this off the text of the Constitution, the 11A, as
> interpreted by the S.Ct., prevents private lawsuits against the states,
> including state employers, in the name of an old doctrine called "sovereign
> immunity," coming from the feudal doctrine that The King Can Do No Wrong.
>
> In a recent series of cases, the S.Ct has turned the 11A into a potent weapon
> for state defendants. The latest was a case in which the Court reversed a
> case I drafted for the 7C, well, vacated it in connection with affirming an
> 11th Circuit opinion in Kimel v. Florida Bd. of Regents. The S.Ct held that
> Congress exceeded its powers under the 14th Amendment in applying the ADEA,
> the Age Discrimination in Employment ACt, to the states.
>
> So now, if your state university or other state employer fires you because
> you are too old, you have no recourse under federal law. Justice O'Connor,
> who wrote the opinion, says cheerfully that most states have state age
> discrimination statutes and you can use them, lucky you.
>
> Even more interesting and ominous is that today the S.Ct sent the 7C and
> other Circuits an order telling them to reconsider recent Equal Pay Act cases
> in light of Kimel. The EPA is a sex discrimination law mandating equal pay
> for equal work.
>
> What is striking about this is that Justice O'C based her opinion in Kimel on
> the argument that age classifications by the states get very little
> "scrutiny" by the courts, basically, if a court can think of a reason that
> makes sense why the state discriminates on the basis of age, even if it
> wasn't the reason the state had for doing it, and even if it isn't a good
> reason, as long as it isn't transparently a cover for bigotry, then the
> classication will be upheld. However, sex discrimination gets a higher level
> of scrutiny: the state has to have a pretty good reason for discriminating
> on the basis of sex.
>
> So if the S.Ct thinks that Kimel takes out the EPA, and the order is
> certainly a strong hint that it thinks just that, then the EPA and other sex
> discrimination laws, inclkuding the sex discrimination parts of Title VII,
> are on the chopping block when it comes to the states.
>
> Next in line: the Americans with Disabilities Act or ADA. Like age,
> disability gets low scrutiny. If I were a lawyer for a state employer who was
> sued for disability discrimination, I would certainly argue that Kimel means
> that the state could not be sued in federal court. This would also apply to
> public accommodatiions, I would think: states cannot be required by Congress,
> a state's attorney will argue, to accommodate disabilities. that would be
> unconstitutional under Kimel.
>
> The long and short of it is that the S.Ct is stripping state employees and
> others of crucial federal protections. The approach is constitutional, so
> Congress can't do a thing about it. Well, maybe a thing: it can re-enact
> these laws with the proper sort of findings. Basically what Congress would
> have to do under the reasoniing of Kimel and its progentor, City of Boerne v.
> Flores, is to have the CBO or whatever conduct research showing that the
> states in particular had engaged in systematic age, disability, etc.
> dicrimination, and to have Congress incorporate those findings into the law.
>
> I realize this is a bit technical, but people should know this is going on.
>
> --Justin Schwartz, Esq.