The ADA and the 11th Amendment

JKSCHW at aol.com JKSCHW at aol.com
Sat Jan 22 14:53:51 PST 2000


In a message dated 00-01-22 14:34:27 EST, you write:

<< So it may require new laws tying funding for states to their agreeing to waive

sovereign immunity or forfeit those funds. Hell, states were forced to raise

the drinking age to 21 across the country through threat of losing their highway

funds, so states could be required to pass legislation waiving their state

immunity (which any state can do) in line with the ADA or any other civil rights

act on threat of losing various federal funds. So the feds could force states

to create a private right of action through such means.

But there's the unconstitutional conditions doctrine,w hich says you can't be forced to waivea constitutional right. Drinking ages don't raise that issue. It hasn't been applied to the states, as far as I know, but if I were a state's attorney facing those laws I'd try it. Anyway, you'd have to get a Congress that wanted to do this. Congress might also try adopted a lot of findings about how the states discriminate against older and disabled persons, if it wanted to, probably the easiest first attempt.

> But you are likely right that ADA could go down on this basis. However, I have

read other analyses that argue that age discrimination has a different status

under the 14th amendment from disability.

Yeah. Marta posted an 11C case I haven't read. I am not optimistic.

>Since everyone potentially

experiences old age,

The protected group under the ADEA is 40 or over. I resent calling that "old age."


> the elderly are not a "discrete and insular" minority in

the parlance of the courts, so there is a lower level of scrutiny for

legislation that makes distinctions in the treatment of the elderly versus the

non-elderly.

That's what the Court said. This reasoning is so awful it cries out for mockery and abuse. The "eldery" may be an actual minority, but since everyone will be older sometime if they are lucky, they are not. So apparantly we determine what counts as a minority with a broad time slice. Justice O'C really outdid herself this time. I note that when she is insisting on strict scrutiny for affirmative actions, she doesn't use the "insular minority" analysis--she uses an equal respect and concern analysis. What a dishonest move.


>The disabled are more likely to be considered such a discrete

minority where strict scrutiny is required and the 14th Amendment kicks in.
>>

You want to bet?

--jks



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