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ADA Watch Informational Alert
from the National Coalition for Disability Rights
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ADA RESTORATION: The Authority of Congress to Protect American Citizens
A message from ADA Watch/NCDR president, Jim Ward:
Many thanks to Senator Tom Harkin and everyone who fought the good fight against
the confirmation of Jeffrey Sutton. The community was united and we were
noticed. Because of our hard work the vote was close: Only one other judicial
nominee in 25 years has been confirmed with so few "yes" votes (52).
ADA Watch will continue to oppose judicial nominees such as Alabama A.G. William Pryor and others
who endanger disability rights.
But most urgently, we need to use the public statements of support for the ADA
voiced during the Sutton debate to advance our efforts to restore our rights.
Many Republican Senators, although they all voted for Sutton, voiced strong
opposition to the recent Supreme Court rulings against the ADA. Getting them
onboard to cosponsor a bipartisan legislative fix to undo the damage is now our
focus. Such a fix could address the definitional problems we have faced in the
courts and maybe even help inoculate the ADA from the extreme judicial activism
that puts "States' Rights" ahead of "Civil Rights."
Not too long ago, we were saying: "Don't open up the ADA." Since then we have
faced even more losses in the Supreme Court. While we will still need procedures
to protect against weakening amendments, there is growing support in our
community for an "ADA Restoration Act" and language is now being crafted by our
best disability lawyers.
ADA Watch has been staffing a broad coalition of disability organizations to
explore our options specific to ADA Restoration. We have facilitated several
exploratory meetings as well as a series of working sessions with leading
disability rights lawyers. We have set up teams to focus on lobbying, drafting,
media, grassroots, events, etc.
These efforts include NAD, NCIL, ADAPT, Bazelon, DREDF, NAPAS, NOD, AAPD, CCD
member organizations, and many others. Our work is also informed by the efforts
of the National Council on Disability which has been analyzing possible
approaches to restoring the ADA. NCD, of course, does not do grassroots advocacy
or lobbying.
Following the Sutton vote, word on the Hill is that Democrats and Republicans
alike want to do something to restore the rights originally invoked by Congress
under the ADA. Thanks to the efforts of so many of you to bring attention to the
ADA and to the threats of Federalism during the Sutton debate, we now have
increased awareness of our struggle. Senators, Senate staffers, the media, and
the general public were educated about the attacks on the ADA -- a mainstream
law that is held in high regard by a large majority of Americans.
With your support, we will now use this momentum and go forward to restore the
ADA.
Congress, at the petition of the American people, passed the ADA as a sweeping
mandate to eliminate discrimination. The courts, who many say are making public
policy rather than interpreting the law, have been steadily chipping away at the
ADA and other Federal protections claiming that, at least in the Garrett case
and despite mountains of evidence to the contrary, Congress never demonstrated a
history of discrimination against people with disabilities by the states.
In his floor statement before the Sutton vote, Ohio Republican Senator Mike
DeWine said that he is "deeply troubled by the Court’s lack of deference to
Congress." Our arguments against Sutton, Pryor and Federalism, likewise, center
on the "unelected undoing the work of the elected." Our hope is that Republican
leaders such as Sen. DeWine, Sen. Hatch, and others will join a bipartisan
effort to restate the intent of the ADA and reassert Congressional authority to
protect the civil rights of people with disabilities.
Postscript: Remember that most national disability organizations, for one reason
or another, did not take a position on Sutton. (This despite clear IRS
guidelines that allow 501(c)(3) organizations to influence the selection of
judges just as they do legislation.) Our campaign was waged without the
assistance of most of the professional disability lobbyists in Washington. Just
imagine what we can do on the ADA if we are all actively working together!!!
An excerpt from Sen. DeWine's April 29, 2003 floor statement follows:
In the Garrett case, the Supreme Court held that a disabled individual cannot
sue a state for money damages for employment discrimination under the Americans
with Disabilities Act (ADA). The Court said that in order for Congress to pass
that particular remedy -– money damages against a state -- it first had to show
that states were engaging in a pattern of employment discrimination against the
disabled. The Court said that Congress had not met the burden of proof required
by the Constitution.
I disagree with the Court’s decision in Garrett, and I disagree with Alabama’s
arguments, as presented by Jeff Sutton in the Supreme Court. Here is why.
First, I believe that Congress did, in fact, meet its burden in passing the ADA.
It established the record of discrimination against the disabled necessary to
pass constitutional scrutiny by the courts. We sent a loud and clear message to
the courts in the findings of the ADA and in an extensive legislative history.
What happened in Garrett is that the Supreme Court substituted its judgment for
ours. The Court reviewed our extensive findings and legislative history, then,
one by one, dismissed them as inadequate. I am deeply troubled by the Court’s
lack of deference to Congress in Garrett, and this lack of deference is why many
of us in this body believe that the Supreme Court got it wrong in that case.
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