R
>Today's commentary:
>http://www.zmag.org/sustainers/content/2002-07/30russell.cfm
>
>==================================
>
>ZNet Commentary
>Supremes Continue to Disable Disabled: Part One of Two August 02, 2002
>By Marta Russell
>
>Listening to Elouise Cobell of the Blackfeet Nation on Democracy Now
>(April 29) describe how native Americans have been cheated out of their
>government-run trust fund income by the federal government it occurred to
>me that Native American people and disabled people share a common
>grievance when it comes to government enforcement of the law.
>
>In 1996 Cobell launched a Blackfeet Nation class action lawsuit to account
>for all royalties due individual Native Americans since 1887. The lawsuit
>alleges that the government system has been plagued by problems for
>decades. Landowners have no way to determine how much money they are owed
>and whether they are receiving a good value for their leases. The
>government often fails to collect on leases or to send funds to the
>correct beneficiary. There has never been an accounting of the funds.
>
>Laws are made by congress but other branches of government do not
>necessarily uphold the law. Legislation is enacted but government often
>does not adequately enforce it. Government conveniently ignores laws -- in
>some instances unintentionally and out of incompetence but in others
>government (in its many varied institutions) intentionally does not to
>abide by the law. Rather it evades it, bypasses it, weakens it, or makes
>it obsolete.
>
>Instead of competent government regulation we have civil litigation. The
>process of civil litigation to enforce the Americans with Disabilities Act
>(ADA) has been an arduous one prone before a hostile Supreme Court.
>
>As legal cases work their way to the Supreme Court, the court has seen fit
>to narrow the reach of the act on local government. A year ago, for
>instance, the Supremes ruled that state workers cannot use the civil
>rights law to win money damages for job discrimination. The court held
>that the disability rights law does not trump states' constitutional
>immunity against being sued for damages in federal courts (Garrett v. Alabama).
>
>Over ten years after passage of the ADA, Jeffrey Gorman, a paraplegic who
>lives in Missouri, was badly injured while being taken to jail for
>trespassing at a country-western bar because the Kansas City police
>department had not complied with ADA regulations.
>
>Gorman, who uses a wheelchair, warned officers that they did not have an
>accessible van to transport him safely to jail. According to Gorman's
>lawyer, the officers ignored Gorman, removed him from his wheelchair,
>propped him on a bench, and tied him to the vehicle's wall with his own
>belt. During the trip to the jail, Gorman fell and injured his shoulder
>and back. He had surgery due to the injury. None of these facts are contested.
>
>Just think of it like this. If a nondisabled person could not be
>transported to jail because there were no seats for him/her in a patrol
>car, and the police strapped him to the top of their squad car using the
>belts from his clothing and the person fell off the car and injured
>themselves to the extent that he required surgery, would a jury punish
>that police department with a huge monetary award? You bet it would. It
>would seek punishment to avoid having the same egregious act reoccur.
>
>Would the lawyers for the city come around and try to undo that award?
>Unlikely city politicians would risk public outcry.
>
>In Gorman's case the jury did award him compensatory and punitive damages.
>Kansas City did not contest the compensatory damages but appealed the
>punitive damages, taking the case to the 8th District Court. It agreed
>with Gorman that punitive damages were in order but noted that the 6th
>District Court had ruled differently in a similar case, an unfortunate
>signal that the Supreme Court, so hostile to disability rights, would
>settle the question.
>Gorman hoped that the Supreme Court would rule "they [Kansas City] are not
>above the law even though they're the government ." (Quote from The
>Associated Press)
>
>Local government wanted protection from lawsuits when they broke the law.
>
>Going so low the Kansas City defense even asserted at the jury trial that
>since Gorman was mobile with the use of corrective device, the wheelchair,
>he was not disabled under the ADA (Federal Rights Project). Some disabled
>persons have been dismissed as illegitimate ADA plaintiffs because their
>disabilities can be mitigated by drugs, devices, what have you. It is a
>bit nauseating to know that lawyers for Kansas City used the argument that
>Gorman was not technically disabled and had no right to sue under the ADA
>because his wheelchair mitigated his disablement.
>
>The Supremes agreed with Kansas City and threw out the punitive damages
>holding that such damages are unavailable in private suits brought under
>the ADA and the Rehabilitation Act.
>
>When Congress passed the ADA, it did not specify that people could collect
>punitive damages for violations but since the ADA was fashioned like the
>Civil Rights Act of 1964, there was congressional understanding of the
>availability of punitive damages under Title VI. Lawyers for the local
>government in Kansas City and the Bush administration, however, argued
>that Congress never intended for cities to face large jury judgments.
>
>Justice Scalia, writing for the court, said that adding punitive damages
>in ADA cases "could well be disastrous." He said recipients of federal
>funds probably would not agree "to exposure to such unorthodox and
>indeterminate liability."
>
>If government adhered to the law and followed the regulations there would
>be no such cases.
>
>The corporatist court applied contract-law analogy in throwing out the
>punitive damages. It held that a "a remedy is appropriate relief only if
>the recipient is on notice that, by accepting federal funding, it exposes
>itself to such liability." The court reasoned that "since Title VI
>mentions no remedies; and punitive damages are generally not available for
>breach of contract," no damages are available under the ADA of the
>Rehabilitation Act.
>
>There are still punitive damages available to women and minorities under
>Title VI. How broadly will this court extend its ruling?
>
>We in the disability community know from years of repeated problems at all
>levels of government that the Gorman case is not an isolated incident. The
>ADA was passed in 1990 yet over a decade later many local and state
>governments are not in compliance with its regulations.
>
>The significance of Barnes v. Gorman is broader than a disabled man being
>wrongly transported to jail. Local government is responsible for many
>public services, transportation, health and welfare, jails, the local
>courts, to name but a few. If disabled persons are denied the right to
>seek punitive damages when governments violate the law, there will be
>little incentive for governments to get their act together and make
>programs and systems accessible.
>
>Still the larger issue is that of societal exclusion - and the social
>relations which erect exclusion. Disability is a social experience which
>arises from the specific ways in which society organizes its fundamental
>activities. Work, transportation, leisure, education, domestic life
>disable persons when they are not accessible. We are "disabled" or not by
>the way a society is organized.
>
>With civil rights laws in place disabled citizens are still treated like
>second or third class citizens -- still shut out from full participation
>in the affairs and life of our communities.
>
>The Supreme Court has the power of judicial interpretation to decide the
>intent and scope of laws as they are applied in society in specific
>situations. So far the Supreme Court, the final arbiter of law, has seen
>fit to continue to disable us.
>
>
>Part Two will explore the employment related decisions of the 2001-2002
>court term.
>Marta Russell can be reached at ap888 at lafn.org
>www.disweb.org