Boston Globe OpEd:


RIGHTS OF DISABLED ARE IN JEOPARDY


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.

Copyright 2003 Globe Newspaper Company.