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Supreme Court Watch

October 11, 2000 at 12:00 AM EDT


RAY SUAREZ: At issue today was whether public employees have the right to sue state governments under the Americans with Disabilities Act. The federal ban on discrimination against the disabled was passed by Congress ten years ago, but did Congress exceed its authority with the A.D.A.? We get more on the case and today’s proceedings from NewsHour regular Jan Crawford Greenburg, national legal affairs correspondent for the Chicago Tribune.

Well, Jan, walk us through how this particular case and this argument got to the court today.

JAN CRAWFORD GREENBURG: Well this case actually involved two separate lawsuits filed by individuals against entities of the state of Alabama. One of the lawsuits involved a registered nurse who alleged that she was demoted when her employer discovered that she had breast cancer. The other lawsuit was filed by an employee of the state’s Department of Youth Services, who said that the state hadn’t done enough to accommodate his severe disability, severe and chronic asthma, didn’t enforce no smoking bans, for example. So these two individuals sued the state under the Americans with Disabilities Act, or the A.D.A.. Now the state stepped in and didn’t contest the merit of the case, it just said, look, you can’t sue us under this law because Congress didn’t have the authority to make it apply to us in the first place.

RAY SUAREZ: So to be clear, what was talked about in court today was not whether or not Mr. Ash’s asthma had been accommodated or Nurse Garrett’s problems were recognized and dealt with, but whether they had any standing to bring these kinds of suits at all?

JAN CRAWFORD GREENBURG: That’s right, and whether they could turn to this law and seek protection.

RAY SUAREZ: So what did the argument look like?

JAN CRAWFORD GREENBURG: Well, the appeals court and how it got up here was the federal appeals court ruled against the state and then said Congress was within its authority when it said that the A.D.A. should apply to the states and that employees could sue the states if they feel they’ve been aggrieved. So today a lawyer for the state of Alabama told the Justices that the appeals court was wrong and that the states were protected by an obscure amendment, the 11th Amendment, which essentially limits federal lawsuits against the states.

RAY SUAREZ: So is that what’s sovereign immunity is?

JAN CRAWFORD GREENBURG: This is a very — right, this is a very complicated constitutional issue — the kind of issues that – you know — fascinate law professors. But obviously, I mean, it has significant implications for American life, because at bottom, as we saw today, this is a case about power: Congress’s power over the states, Congress’s power to interpret the Constitution, Congress’s power to seek redress for constitutional violations. And beyond the A.D.A., if the states prevail here, some suggest that it could lead to a tax, attacks on other lawsuits in other states under other laws such as the Fair Housing Act and certain anti-discrimination laws that prohibit actions that might have a discriminatory effect.

RAY SUAREZ: So what did the Justices have to say to that?

JAN CRAWFORD GREENBURG: This was a tough argument. They’ve looked at these issues before, in fact there was a case last term in which the court ruled that employees couldn’t sue states for violating a federal age discrimination law.

RAY SUAREZ: In federal court.

JAN CRAWFORD GREENBURG: Right. Pointing again to this, the 11th Amendment immunity. That case last year was pretty clear that there are at least five Justices, and in fact there were five Justices who would side with the state. Today it was a little tougher, I think, to call. One of the key votes the court, Justice Sandra Day O’Connor, who wrote the opinion last term in the age discrimination case, suggested today that maybe disability was a little different, maybe, or would it be different if there were more evidence that the states had been engaging in discrimination against the disabled, that you didn’t have in the age discrimination case from last term. Other Justices were a little easier to predict, they kind of tracked the opinions that they’ve held for years as the court has begun taking up these issues of federal power. The liberal Justices suggested that of course Congress could step in and remedy these violations. The conservative Justices seemed to have sympathy for the state’s argument that the state wasn’t discriminating and that state laws were sufficient.

RAY SUAREZ: Did the state of Alabama maintain either in its filings before today’s arguments or under questioning from the judges today that the federal government cannot pass a law of this kind and enforce it in the state of Alabama?

JAN CRAWFORD GREENBURG: That was the bulk of this argument. And the reason it said that was because there is no evidence, it disputed the evidence the states were discriminating against people because of their disabilities, the attorney see there’s no evidence that the states were engaging in widespread discrimination, and there are state laws on the books and the states were enforcing those laws against discrimination. So Congress didn’t need to get involved here. And Congress, you know, couldn’t just step in and say sure we can get involved here despite this 11th Amendment that you cite because we’ve got to address these constitutional violations. The state’s lawyer said that argument is false because the states haven’t violated the Constitution.

RAY SUAREZ: Aren’t there federal laws against other kinds of discrimination that are routinely invoked in cases of this kind?

JAN CRAWFORD GREENBURG: Yes. Though they point to different sources of constitutional authority. One thing that’s interesting, I think, about these cases is that forever almost people assume that Congress could pass any law if it were an important issue. But in recent years, this Supreme Court, led by Chief Justice Rehnquist, has said no, Congress has to point to a specific place in the Constitution that gives it authority to get involved.

It can’t just go and pass laws that might interfere with concerns that states generally handle, and so under that thinking, the court in recent terms has in some ways quite dramatically and steadily scaled back Congress’s power vis-à-vis the states. It said that Congress can’t order state officials to implement federal programs; it said Congress can’t point to its authority to regulate commerce to pass laws that really have nothing to do with commerce, like we saw last term in a case involving a law. the Federal Violence Against Women Act.

And in these cases it’s said in the past that states have a right to be sued under their own laws in their own courts. Now whether or not that will apply to this disabilities law is what the court has to decide.

RAY SUAREZ: : But just so I’m clear on what’s at stake here, if the court finds for the state of Alabama, could that drain the A.D.A. of much of its enforceability at the state level?

JAN CRAWFORD GREENBURG: The states would say no, well, the A.D.A. on some level yes. But the states say no, they have their own laws. And if the states are violating or are discriminating against people because of their disability, that people can always, and this is a little tricky legal aspect, people can always sue a state official and get the state to stop its bad behavior. What they were arguing today is that people couldn’t file these private lawsuits for money damages. So the state says, no, this doesn’t mean that states are just going to wholesale discriminate against people because they’re disabled. We have protections on the books on the states, and if some state does happen to discriminate, a person can sue and get the state to stop it, get an injunction.

RAY SUAREZ: But each state, and I understand that all states have a version of the A.D.A. on their own books, could follow their own law and in effect exclude the federal law?

JAN CRAWFORD GREENBURG: Well, Justice Stevens was troubled by that today. He said why would the state law preclude the federal law. The attorney for the state said, well, because the state law means the federal law, as it would apply to the states, is unnecessary and that’s what the 11th Amendment is about, it protects states from congressional actions that would subject it to federal lawsuits, and that’s why the Congress’s argument here wouldn’t hold weight because there’s no reason for Congress to get involved.

RAY SUAREZ: Jan Crawford Greenburg, thanks for coming by.