By James Leonard
Last Wednesday the Supreme Court balanced the rights of the disabled to be free from discrimination against the rights of states to be free from damage awards in federal discrimination suits. The states won, but contrary to predictions (including my own), the Court’s decision did not signal the end of disability discrimination suits against the government, much less the death of the disability rights movement. Instead, the Garrett case struck a balance between the need to protect states from damages liability and to allow the disabled to seek relief when states act in a discriminatory fashion. To my mind, it was an effective compromise.
Board of Trustees of the University of Alabama v. Garrett was a lawsuit brought by two employees of the State of Alabama. Patricia Garrett was a nurse at the University of Alabama at Birmingham hospital who was transferred to a lower position after her return from breast cancer treatment. Milton Ashe, a chronic asthmatic employed by the Department of Youth Services, was refused accommodations for his health conditions. Each sought relief under Title I of the Americans with Disabilities Act, which prohibits employment discrimination, as well as other provisions.
At issue in Garrett was whether Congress had the constitutional power to subject states to damage awards under the ADA. The plaintiffs were in a difficult position legally. The Equal Protection Clause of the Fourteenth Amendment prohibits states from discriminating against the disabled, while Section 5 of that amendment allows Congress to enact laws to enforce equal protection guaranties against states. During the 1990s, however, the Rehnquist Court issued a series of decisions that severely restricted the power of Congress to use Section 5 to impose damage awards on state governments, overturning federal statutes that sought to protect women, the elderly and others. The Court took the same approach in Garrett, holding that states did not violate equal protection precepts unless their actions were irrational, and that Congress had failed to justify the damage award provisions of the ADA with sufficient examples of such conduct.
Does this decision mean that Patricia Garrett and Milton Ashe have no recourse? It does not. The Court was careful to note the limited reach of its decision. In a footnote, Chief Justice Rehnquist states that the disabled still may bring ADA actions against state employers for injunctive relief, for example, orders to provide accommodations. The Garrett decision also does not affect disability discrimination suits for damages under Section 504 of the Rehabilitation Act which covers all recipients of federal moneys including state entities. Nor does Garrett affect suits under state law. When all is told, Garrett and Ashe have lost only one form of relief among many and may still press forward with their other claims in federal court. In a further show of restraint, the Court also declined to rule on the constitutionality of Title II of the ADA, which applies to state and local government services.
At the same time Garrett reaffirmed the Rehnquist Court’s dedication to maintaining the separation of powers among the branches of the federal government. Fortunately, a majority of the Court rejected the argument made by plaintiffs and Justice Breyer in dissent that Congress should have great latitude in interpreting the Constitution. The Framers of our Constitution feared that the accumulation power in any one branch of government would lead to a loss of freedom for all. One need only browse the Federalist Papers to know that the Framers were particularly fearful of unfettered legislative power. Congress’s decision to protect the disabled from discrimination through the ADA is laudable and represents sound social policy. But the price is too high if we must also give Congress a power to interpret the Constitution that has belonged with the Court since Marbury v. Madison was decided in 1803.
Garrett is a wise decision of a sort that I thought unlikely after the politicized decision in Bush v. Gore. It leaves the ADA’s rules against employment discrimination intact and limits only the remedies for violations by state employers. Patricia Garrett and Milton Ashe will have their day in court and their chance to prove that the State of Alabama fell below the standards set by the ADA. And I will sleep better at night knowing that the interpretation of the Constitution still lies with independent, life-tenured judges rather than Congressmen and Senators who, for better or worse, often owe their allegiance to campaign contributors.
James Leonard is professor of law and co-director of the Disability Law Institute at The University of Alabama School of Law.