The passage is hard to scan. One reading is that there is no constitutional right of action under the 14th amendment for "rationa;" disability discrimination. Well, we knew that. But the issue is the statutory cause of action under the ADA.
Now, it's pretty well settled that in enforcing the 14th amendment under section 5 ("Congress shall have powers to enforce this amemdment by appropriate legislation"; if memory serves), Congress is NOT confined to what the Constitution allows. It can go beyond that, creating, for example, prohibitions on private discrimination that would not be actionable under the 14A, which requires government action.
So what is the Court saying here? That that's not true anymore, that Congress can only enforce the prohibitions of the 14A itself against government actors, which in thsi case don't apply beacuse disability discrimination is economically rational? You see where this is leading. No more ADA--or ADEA, or Title VII, no more discrimination law, insofar as it depends on the 14th amendment. If so, we are in more trouble than would appear at first glance.
--jks
>
>----- Original Message -----
>From: "Marta Russell" <ap888 at lafn.org>
>
>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
>
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