By Jim Ward, 7/24/2003

RECENT RULINGS by the US Supreme Court have recognized the constitutional rights of gay Americans and upheld the use of affirmative action to open doors of opportunity for minorities. Earlier this year, the court also rejected the mantra of ''states' rights'' and instead reinforced the rights that working parents enjoy under the Family and Medical Leave Act. Sadly, however, for people with disabilities, the nation's courts have offered a much chillier reception.

As the Americans with Disabilities Act - the ADA - observes its 13th anniversary this week, the disability community finds its rights in jeopardy.

Those of us who pressed Congress to enact the ADA are finding that all too often there are few, if any, consequences for those who choose to discriminate against people with disabilities.

This summer, a study by a commission of the American Bar Association found that employers prevailed in more than 94 percent of the 327 Disabilities Act employment-related cases decided last year in federal courts.

In cases before the US Court of Appeals for the First Circuit, which includes Massachusetts, employers won a lopsided 24 out of 26 disability rights cases.

The American Bar Association study concluded that the legal standards within the law were being interpreted by the courts in ways that ''still create obstacles for plaintiffs to overcome.'' Unfortunately, many people with disabilities face obstacles long before they reach the courtroom.

Just ask George Lane, a Tennessee man who lost a leg in an auto accident in the mid-1990s. Soon thereafter, Lane was summoned to appear in court and forced to crawl his way up two long flights of stairs in a courthouse with no elevator or other accommodations required by the ADA.

When a second hearing was scheduled, Lane made his way to the courthouse's ground floor. Once there, he refused to endure the physical burden of again crawling up two flights of stairs simply because Tennessee had refused to comply with the ADA. Even though Lane sent word to the judge that he was downstairs, officials arrested him for not appearing in court.

Lane responded by filing suit against the state of Tennessee.

Beverly Jones also lives in Tennessee, and the state's failure to improve mobility at county courthouses has created tremendous hardship for Jones, a court reporter who relies on a wheelchair. Like Lane, she too has urged state officials to do the right thing.

Instead, Tennessee officials have chosen to fight the law. After lower courts ruled against the state, Tennessee's Attorney General Paul Summers appealed the case. Summers argues that the state is shielded from a key provision of the Americans with Disabilities Act by the constitutional principle of ''sovereign immunity'' - in other words, the tired doctrine of states' rights.

In deciding to appeal the case to the US Supreme Court, Summers ignored both the needs of the disability community and the views of the American people. Nine years after Congress enacted the ADA, a Harris poll revealed that by a margin of 75 to 17 percent, Americans believed that ''the benefits of the ADA are worth the additional costs.''

Unfortunately, last month the US Supreme Court gave the states' rights philosophy advocated by Tennessee's attorney general a boost when it agreed to hear the case in its upcoming term. While the decision to hear the case in no way ensures victory for Tennessee's anti-ADA position, there is plenty of reason to worry.

Previous Supreme Court decisions have watered down the law. In 2001, for example, the justices ruled that state employees cannot use the ADA to win damages for on-the-job discrimination.

When President George H. W. Bush signed the Americans with Disabilities Act into law in 1990, he declared that our nation ''will not accept, we will not excuse, we will not tolerate discrimination in America.'' But today those words provide no comfort to millions of people with disabilities.

A just nation measures its progress not on the promises it makes, but on the promises it keeps - especially for those who are likely to face discrimination.

Jim Ward is president of the National Coalition for Disability Rights in Washington.

This story ran on page A11 of the Boston Globe on 7/24/2003.
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