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PROTECT THE ADA:
From Jim Ward and ADA Watch
www.adawatch.org
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Immediate Action Requested:

Dear Colleagues:

Hundreds of organizations are opposed to the confirmation of Alabama Attorney General William Pryor. (See the list here)  Pryor, already under fire for his controversial stances on disability rights, civil rights and civil liberties (see talking points below), continues to be questioned regarding the truthfulness of his testimony before the US Senate Judiciary Committee. Documents listing Pryor's solicitation of campaign funds from Alabama corporations under investigation by his office have been presented to the Judiciary Committee.  These documents conflict with Pryor's testimony before the Committee.

During the community's attempts to stop the confirmation of Jeffrey Sutton, we heard from many on the other side that Sutton was just a "hired gun." Well, now the man who hired Sutton to weaken the ADA in the Garrett case, Alabama Attorney General William Pryor, has also been nominated to a lifetime seat on the Federal Court -- just one step away from the Supreme Court.

While Sutton was confirmed, it was with the lowest number of "yes" votes in 25 years. What made a difference in the Sutton campaign were the stacks of petitions and letterheads from organizations who were opposed to confirmation. Sen. Harkin, Sen. Leahy, and others held up these documents on the floor of the US Senate to demonstrate the extent of the disability community's concern about the assault on the ADA by activist judges.

WE NEED YOUR HELP ONCE AGAIN!    

Please FAX a short letter (on your organization's letterhead and addressed to: Sen. Hatch and Sen. Leahy) outlining your opposition to Pryor. Fax to 202- 318-4040 and we will hand-deliver it to the US Senate Judiciary Committee. Use the talking points below to craft your message.
 

Individuals should contact their senators using the information at www.congress.org 

PRYOR TALKING POINTS:

The disability community is opposed to the confirmation of Alabama Attorney General William Pryor because we do not believe a person with a disability would receive a fair hearing from a "Judge Pryor."

Why?

Pryor has demonstrated a commitment to extremism rather than to justice. Pryor's right-wing ideology is far outside the mainstream of American legal thought. 

William Pryor, nominated to the U.S. Court of Appeals for the Eleventh Circuit, has been a leader in the effort to limit congressional power to enact laws protecting civil rights. Pryor has prevailed in a series of 5-4 cases before the Supreme Court that have curtailed civil rights, including the Board of Trustees of Alabama v. Garrett, which successfully challenged the constitutionality of applying the Americans with Disabilities Act of 1990 to states as employers.

Pryor argued that the protections of the ADA were "not needed" to remedy discrimination by states against people with disabilities. This decision prevents persons with disabilities from collecting monetary damages from state employers. Most significantly, it has resulted in fewer attorneys being willing to represent individuals in ADA cases against state employers. Despite the massive record of egregious conduct toward individuals with disabilities by states that Congress had compiled -- including instances of forced sterilization of individuals with disabilities, unnecessary institutionalization, denial of education, and systemic prejudices and stereotyping perpetrated by state actors -- Pryor argued that states were actually in the forefront of efforts to protect the rights of individuals with disabilities. 

Pryor has led the battle to undo the work of a democratically-elected Congress to legislate federal protections for American citizens. Despite widespread bipartisan support for the Americans with Disabilities Act (ADA), Pryor said he was "proud" of his role in "protecting the hard-earned dollars of Alabama taxpayers when Congress imposes illegal mandates on our state."

Pryor is a leading architect of the recent "states' rights" or "federalism" movement to limit the authority of Congress to enact laws protecting individual and other rights.  He is fighting to reverse the results of our nation's civil war and leave us with a patchwork of uneven civil rights protections dependent on an individual's zip code.

He personally has been involved in key Supreme Court cases that, by narrow 5-4 majorities, have restricted the ability of Congress to protect Americans' rights against discrimination and injury based on disability, race, and age.  Worse, he has urged the Court to go even further than it has in the direction of restricting congressional authority.  Just last month, for example, the Court, in an opinion by Chief Justice Rehnquist, rejected Pryor's argument that the states should be immune from lawsuits for damages brought by state employees for violation of the federal Family and Medical Leave Act.

More Information from the Bazelon Center for Mental Health Law:

* BILL PRYOR'S RECORD ON DISABILITY ISSUES
Bill Pryor, the Attorney General of Alabama, has been nominated by President Bush nominated to serve on the Eleventh Circuit Court of Appeals. The Eleventh Circuit is comprised of Florida, Georgia, and Alabama.

Pryor's confirmation to a federal appeals court judgeship would undermine the ability of people with disabilities to enforce important civil rights protections given to them by Congress. Pryor has been an outspoken advocate for states' rights and has fought aggressively to prevent people with disabilities from enforcing their rights under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act against the states. He has also spoken out in favor of legal arguments that would eliminate the right of individuals to enforce their rights to obtain Medicaid services that states are obligated to provide. Pryor is a member of the Federalist Society and participates in other right-wing think tanks that promote a states' rights agenda.

Pryor has taken positions very similar to those of Jeffrey Sutton, who was widely opposed by disability advocates because of his consistent efforts to defeat individuals' ability to enforce disability and other civil rights laws. While Sutton contended that he was merely advancing positions that he was hired to take, it was Bill Pryor who decided to take these positions in some cases and to hire Jeff Sutton to make the arguments. In Board of Trustees of Univ. of Alabama v. Garrett, for example, Pryor had formulated the argument that states were immune from suit under Title I of the ADA, and he hired Jeff Sutton to make that argument to the Supreme Court. Fourteen other state attorneys general took the opposite position in the Supreme Court.

I. The ADA and Section 504

Pryor is perhaps best known in the disability community for his advocacy in the case of Board of Trustees of the University of Alabama v. Garrett,
which severely limited the rights of people with disabilities to enforce the ADA. Pryor argued in Garrett that Congress had no power under the Fourteenth Amendment to apply Title I of the ADA to state employers. He brought in states' rights advocate Jeffrey Sutton to help him make the case to the Supreme Court. They persuaded the Supreme Court=s conservative majority to rule, in a 5-4 decision, that individuals with disabilities who are state employees cannot sue their employers for damages under Title I of the ADA.
Pryor argued that Congress had no power to apply the ADA to the states because "[i]n passing the ADA, Congress did not identify any pattern or practice of unconstitutional State action, or for that matter, even a single instance of such conduct." Despite the massive record of egregious conduct toward individuals with disabilities by states that Congress had compiled -- including instances of forced sterilization of individuals with disabilities, unnecessary institutionalization, denial of education, and systemic prejudices and stereotyping perpetrated by state actors -- Pryor argued that states were actually in the forefront of efforts to protect the rights of individuals with disabilities.

The Garrett case has had a much broader impact than simply precluding ADA cases seeking money damages against state employers. In the wake of Garrett, states have argued that Garrett's reasoning applies to Title II of the ADA, and many courts have accepted those arguments. Additionally, states have argued that the ADA is not enforceable at all against state entities, even in cases that do not involve damages. Some courts have accepted those arguments.

Pryor has also argued that Congress had no power to apply Title II of the ADA to state entities. In Pennsylvania Dep't of Corrections v. Yeskey and Medical Bd. of California v. Hason, Pryor filed amicus briefs with the Supreme Court arguing that Congress had exceeded its Fourteenth Amendment power in applying Title II to the states. In Yeskey, Pryor also challenged Congress's power under the Commerce Clause to apply the ADA to state prisons. He argued that the ADA had no application to state prisons at all. The Supreme Court rejected that argument.

Pryor has also used federalism arguments to prevent people with disabilities from enforcing their rights under Section 504 of the Rehabilitation Act. Patricia Garrett, the plaintiff in the Garrett case, has been litigating her employment discrimination claims against the University of Alabama since 1997. Because of Bill Pryor's efforts, she has been unable to have any court review the merits of her claims that she was demoted because she developed breast cancer. After Garrett's ADA claims were thrown out by the Supreme Court, her remaining claims under Section 504 were thrown out by the trial court based on Pryor's argument that Congress could not require states to waive their immunity under Section 504 in exchange for accepting federal funds. Ms. Garrett is appealing that ruling to the Eleventh Circuit Court of Appeals.

II. Child Welfare

Bill Pryor attempted to scrap a consent decree between the state of Alabama and a class of children in the state's child welfare system. The consent decree, entered into several years before Pryor became Attorney General, resolved constitutional and statutory claims challenging deficiencies in the child welfare system and put in place much-needed reforms. The named plaintiff, R.C., had been placed in the child welfare system without attempts to provide appropriate services or supports to him or his father. R.C. had mental health needs, but instead of receiving appropriate services, he was repeatedly shunted by the child welfare system from one psychiatric hospital to another and given large doses of psychoactive medication. The consent decree required the state to do more to prevent children from being removed from troubled homes, to provide appropriate services to children and their families, and to prevent frequent transfers within the foster care system and their resulting harms to children.

The consent decree had the effect of greatly reducing safety risks to children, until the state dramatically cut back funding for care and services and eliminated technical assistance and training, rolling back progress. Bill Pryor freely admitted that the state had not complied with the terms of the consent decree and that prospects of future compliance were dim. He sought to vacate the consent decree based on legal arguments that the parties had committed a fraud on the court, that the law had changed, and that the plaintiff class was too broad. The court rejected these arguments, including Pryor's argument that the former Governor, former Attorney General, and other state officials had conspired to defraud the court by entering into the consent decree.

After a hearing on the motion to vacate the consent decree, Pryor stated publicly that "[i]t matters not to me" whether his actions would leave children unprotected. He continued, "My job is to make sure that the state of Alabama isn't run by federal courts. . . . My job isn't to come here and help children."

III. Medicaid

In addition to his legal advocacy, Bill Pryor has made public statements confirming his restrictive views of the law. One notable example is a speech Pryor gave in 2001 praising the reasoning of the district court decision in Westside Mothers v. Haveman. The district court ruled that Congress could not use its power under the Spending Clause to authorize individuals to sue to obtain the services to which they are entitled under the Medicaid program. Thus, impoverished children and adults who were not getting basic medical care guaranteed them under the Medicaid program were unable to enforce their rights. This argument, which is far out of the mainstream of jurisprudence, was ultimately rejected by the Sixth Circuit.

In a 2001 speech, Pryor called the district court's Westside Mothers decision "brilliant" and "sublime," and expressed hope that he could participate in the "next phase" of "landmark decisions" that would eliminate enforcement of Medicaid and other similar Spending Clause laws. Pryor's views of the law expressed in that speech would also eliminate individuals' ability to sue to enforce Section 504 of the Rehabilitation Act and the Individuals with Disabilities Education Act.

IV. Other Civil Rights Laws

Pryor's arguments in other high profile civil rights cases have also had a detrimental effect on disability rights advocacy. For example, Pryor persuaded a 5-4 majority of the Supreme Court in Alexander v. Sandoval that individuals cannot sue to enforce regulations under Title VI of the Civil Rights Act of 1964 that prohibit recipients of federal funds from engaging in conduct that has the effect of discriminating based on race or national origin.

Since the Sandoval decision was issued, states have begun to use its reasoning in efforts to persuade courts that people with disabilities should not be allowed to enforce regulations under the ADA and Section 504 of the Rehabilitation Act requiring reasonable accommodations, integration of individuals with disabilities, and accessible public housing.

Pryor also argued to the Supreme Court that state entities cannot be sued under the Age Discrimination in Employment Act (ADEA) and the Family and Medical Leave Act (FMLA). The Supreme Court accepted his argument with respect to the ADEA, but rejected the argument he made in an amicus brief with respect to the FMLA. These arguments are similar to the ones Pryor made with respect to the ADA in Garrett and Hason, and continue to be used in ADA Title II cases.

It was also Pryor who decided to take the position taken by Alabama state officials in Alexander v. Sandoval that individuals had no right to enforce regulations prohibiting "disparate impact" discrimination based on race or national origin by entities receiving federal funds. Pryor hired Sutton to make this argument to the Supreme Court. It is the state attorney general, and not state agency directors, who make the final decision whether to pursue litigation on behalf of state entities in Alabama. Ex parte Weaver, 570 So. 2d 675 (Ala. 1990).

1. 531 U.S. 356 (2001).
2. 524 U.S. 206 (1998).
3. No. 02-479, cert. dismissed, 173 S.Ct. 1779 (2003).
4. Garrett v. University of Alabama at Birmingham Bd. of Trustees, 223 F. Supp.2d 1244 (N.D. Ala. 2002).
5. R.C. v. Nachman, 969 F. Supp. 682, 685 (M.D. Ala. 1997).
6. Pryor: Only Legal Concerns, Says He Can't Judge If Welfare Settlement Helped Children, Birmingham News, May 7, 1997, at 1-B.
7. 133 F. Supp. 2d 549 (E.D. Mich. 2001), rev'd, 289 F.3d, 852 (6th Cir. 2002), cert. denied, 123 S.Ct. 618 (2002).
8. William H. Pryor, Jr., The Demand for Clarity: Federalism, Statutory Construction and the 2000 Term (Washington, DC, July 11, 2001), The Federalism Project of the American Enterprise Institute.
9. http://www.federalismproject.org/masterpages/supremecourt/pryor.html
10. 532 U.S. 275 (2001).
11. See, e.g., Three Rivers Center for Independent Living, Inc. v. Housing Authority of City of Pittsburgh, No. 02-1069 (W.D. Pa. May 14, 2003) (Section 504 regulations requiring a certain percentage of newly constructed or altered public housing to be accessible to people with disabilities unenforceable based on Sandoval); Sabree v. Houstoun, 245 F. Supp.2d 653 (E.D. Pa. 2003) (appeal pending) (finding Medicaid provisions requiring services to be furnished with reasonable promptness unenforceable based on legal reasoning set forth in Sandoval and expanded upon in a later Supreme Court decision, Gonzaga Univ. v. Doe, 536 U.S. 273 (2002)).
12. Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000).
13. Nevada Dep't of Human Resources v. Hibbs, No. 01-1368, 2003 WL 21210426 (May 27, 2003).