Lane Defeat Essential to Save the ADA

By Hollynn D'Lil

EDITORS NOTE: Hollynn D'Lil is from Sacramento and was active in last winter's successful effort to get California to withdraw a similar ADA appeal to the Supreme Court. The following message was reviewed and written in collaboration with a leading ADA and civil rights attorney in California.

For those of you who might still be thinking that the Tennessee v Lane and Jones is a good case to go before the U.S. Supreme Court because it is so outrageous for someone to have to crawl up state court steps, please consider this: The Supreme Court will NOT be considering whether people with disabilities should have to crawl up the state court steps. They will ONLY be considering whether the ADA is constitutional. And they have already ruled that it isn't in the Garrett case. See the University of Alabama v Garrett decision. 

Here are some statements from the one of the majority justices in the Garrett case, Justice Kennedy: "If the State had been transgressing the Fourteenth Amendment by their mistreatment of lack of concern for those with impairments, one would have expected to find in decisions of the courts of the States and also the court of the United States extensive litigation and discussion of the constitutional violations. This confirming judicial documentation does not exist. That there is a new awareness, a new consciousness, a new commitment to better treatment of those disadvantaged by mental or physical impairments does not establish that an absence of state statutory correctives was a constitutional violation." "The failure of a State to revise policies now seen as incorrect under a new understanding of proper policy does not always constitute the purposeful and intentional action required to make out a violation of the Equal Protection Clause [of the 14th amendment]." 

Justice Kennedy is saying that just because states now are more sensitive to people with disabilities, it doesn't mean that they in the past have been purposefully discriminating. They just didn't understand and now they do! But Justice Kennedy’s arguments aside, the Court in Garrett held that people with disabilities did not make a valid claim that states have a history of discrimination and therefore Congress did not have the power to give individuals the right to sue for damages. The question advocates need to ask themselves is how is the evidence for Title II (Tennessee v Lane and Jones) any different that for Title I (Garrett case). 

In the Garrett case, the justices held that the documentation of discrimination in employment by states was insufficient. There is no reason to believe they will suddenly find the evidence for discrimination by states in services and programs any better. Unless there are studies, or quantifiable facts in the Congressional records, the Court will continue to hold the Garrett reasoning and hold that there is no evidence of discrimination in state services.

When this argument is applied to the Tennessee v Lane and Jones case, AS IT UNDOUBTEDLY WILL BE, the justices will rule that people with disabilities cannot be awarded damages when states discriminate against them because Congress can only overrule states' rights if the discrimination had been intentional and if discrimination has been documented. They will repeat, a la Justice Kennedy, that states just didn't know any better and that the documentation provided by congress was without sufficient merit. Therefore, the Justices will rule the ADA is a nice little law to remind states to be nice to people with disabilities now, but it can't be used to make states compensate people with disabilities, because that would be a violation of states' rights. 

What this means is that states will continue to violate the rights of people with disabilities and the ADA because there will be no incentive not to do so. It won't cost the states any money if they are caught. If it doesn't cost the states money, they will continue to discriminate, and, moreover, attorneys will not represent people with disabilities because without money for compensation, the attorneys will not be able to afford to take the cases. Without representation by professionals who know that the laws, people with disabilities will continue to beg for minimal access, and civil rights for people with disabilities will continue to be without the respect needed for real change. 

As it stands now in the ADA, the right to money damages is an indication that civil rights for people with disabilities matters. If there is no punishment with damages, there is no incentive to make proactive changes. States will continue to wait until someone gets fed up enough to sue (if they can find an attorney to represent them), and then the states will make the minor changes. In no other civil rights laws representing other minorities can states get away with paying no damages for discrimination and denial of rights. 

What will happen if the Tennessee v Lane and Jones appeal is not stopped is that the ADA will become the "Unequal Americans Act." It will not be enforced because there will be no incentive for it to be enforced and no attorneys will be able to take ADA cases. The ADA will be just a piece of paper. It will be the ultimate "pat on the head," a little token law for people with disabilities that nobody ever meant to be enforced. There will be no public statement that it is wrong to discriminate against people with disabilities. 


So, please write a letter. In crayon on a grocery bag, if necessary. Your letter counts! 

Write: Governor Phil Bredesen 1st Floor, State Capitol , Nashville, TN 37243 

Attorney General Paul G. Summers, P.O. Box 20207, Nashville, TN 37202-0207H

Yours, in solidarity,

HolLynn