Nathan Newman wrote:
-This passage from the majority decision in Garrett is especially jarring:
-"Even were it possible to squeeze out of these examples a pattern -of unconstitutional discrimination by the States, the rights and -remedies created by the ADA against the States would raise the -same sort of concerns as to congruence and proportionality as were -found in City of Boerne, supra. For example, whereas it would be -entirely rational (and therefore constitutional) for a state employer to -conserve scarce financial resources by hiring employees who are -able to use existing facilities, the ADA requires employers to "mak[e] -existing facilities used by employees readily accessible to and -usable by individuals with disabilities."
-If this logic prevails, Americans whose disabilities do not match -existing inaccessible facilities are out of consideration as far -as "equality of opportunity" goes -
Shit-- I had been concentrating so much on the proceduralism of the decision, I had missed that loaded sentence. If what's implied is followed through on, even the injunctive relief left to go after states with is not going to be worth much for most people with disabilities.
One result of this decision is that we are likely to see a rash of lawsuits against public employees unions, since they will be left as the only somewhat deep pocket to sue. Somewhat anticipating this decision this past summer when I was researching a different ADA issue effecting unions, its pretty clear under the law that disabled workers can sue unions for failure to negotiate equal access under the ADA. The interesting question is going to be how the courts deal with state employers who refuse to implement such proposals by the public employee unions. How hard will the unions have to push for those changes to avoid financial liability themselves?
-- Nathan Newman