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Debate Club
DEBATE CLUB 2/6/06

Is the ADA Expanding?

Samuel R. Bagenstos and Ruth O'Brien debate.

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Since becoming law in 1990, the Americans with Disabilities Act has widely improved access but it has also had a rocky time in the courts. Disagreements among federal judges about which aspects were enforceable were so intense that some scholars wondered if the ADA was a dead letter.

In 2004, however, the Supreme Court delivered a major victory to supporters of the law. In Tennessee v. Lane, by a 5-4 vote, the justices found that disabled citizens who suffer discrimination can sue states for monetary damages. Last month, the court unanimously expanded that ruling to include state prisoners. Is the ADA expanding?


Samuel R. Bagenstos is Professor of Law at Washington University School of Law. Ruth O'Brien is Professor of Government at John Jay College of Criminal Justice; Executive Officer of the Political Science Ph.D. Program at the Graduate Center of CUNY; and Adjunct Affiliated Scholar at the Center for American Progress in Washington D.C.

Bagenstos: 2/6/06, 11:10 AM
Ruth, it's a real honor and pleasure to be able to discuss the future of the ADA with you. I'm very interested in your take on the question Legal Affairs has posed for us: Is the ADA expanding? My take is that even two swallows do not make a Spring.

The ADA was an historic achievement for the disability rights movement. By its own terms, the statute provides "a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." It prohibits disability- based discrimination in employment, in all state and local government programs, and in the sale of retail goods and services. Most important, the ADA recognizes that, as Justice Ginsburg wrote in her concurring opinion in Tennessee v. Lane, eliminating disability-based discrimination will "sometimes require not blindfolded equality, but responsiveness to difference; not indifference, but accommodation." The ADA enshrined in federal law the principle that our society discriminates when it designs buildings, social structures, and jobs without people with disabilities in mind—that a flight of stairs can be as discriminatory as a "no cripples" sign.

When the first President Bush signed the ADA into law, all was hopeful in the disability rights movement. But since then, hopes have been dashed time and time again. The ADA's public accommodations title—which requires businesses to make themselves accessible to customers with disabilities—has been wildly underenforced. Go down the block in any retail district in America, and you'll see lots of businesses that people who use wheelchairs simply cannot get into—often because the entrance is blocked by a single step, over which a ramp could easily be installed. The ADA's employment title has not had a significant positive effect on the overall employment rate for people with disabilities—and some economists believe that it has had a negative effect. And ADA litigation is largely a futile enterprise: A smaller percentage of ADA employment cases succeed than in any other class of federal litigation except cases brought by prisoners.

The Supreme Court hasn't helped things by issuing a series of decisions that have limited the coverage of the ADA. And in the 2001 Garrett case, the court held that people with disabilities could not recover money damages from states under the statute's employment title, thus removing a major incentive state employers have to comply with the law. The Lane and Georgia cases do limit the Garrett precedent somewhat—they say that people with disabilities can recover money damages from states in cases involving access to judicial services and at least some prison cases—but, for reasons I suspect we'll get into over the course of this week, I doubt they will do much to change the overall picture of the ADA's effects.

O'Brien: 2/6/06, 06:07 PM
Sam, it's a privilege to have this chance to discuss the ADA's fate with you given your work representing persons with disabilities, particularly since we're at a crossroads now that Justice Samuel Alito has joined the new Roberts' Court.

I agree with you that two swallows don't make a Spring. But to carry your analogy one step farther, I wonder what the impact will be in the court of public opinion if the disability rights movement is regarded as having even a moment in the sun? Will Tennessee v. Lane and now U.S. v. Georgia undermine the disability rights movement by getting the public to believe that the federal courts have done the right thing?

Bracketing employment (though it's as bad as you aptly observe) and concentrating on the ADA's public accommodations provisions, I find many people surprised at how little, and on what grounds, the Supreme Court has defended disability rights. I doubt many Americans, Republicans and Democrats alike, would endorse the view that the disabled should remain segregated and isolated in their apartments and homes. As I recall, congressional members from both sides of the aisle claimed credit for sponsoring the ADA. And while providing rights for workers with disabilities generated some controversy, giving persons with disabilities access to public services did not. Indeed, the Supreme Court supported deinstitutionalization with the Olmstead decision back in 1999, ruling that it would be discriminatory for a state not to release two women with cognitive disabilities from their institutional settings and into community-based treatment programs.

But, even Olmstead, arguably the biggest victory for disability rights, didn't change how the federal courts perceive the disabled as a category of people deserving of antidiscrimination protection. Nor did the majority or the minority in the Garrett decision you mentioned change this perspective. For me, the fact that persons with disabilities have so little protection is chilling. Unlike African-Americans, or women, persons with disabilities have the most minimal protection from discrimination, less categorical protection than even that for prisoners or the poor. A state or local government simply needs to have a reason, big or small, to exclude them and poof the protection is gone.

So, I wonder what do you think happens to the momentum of a social movement, like the disability rights movement, when it secures a narrow victory? Does it matter that these two cases we're discussing are about people in the criminal justice system and not the everyday parts of life, like getting a driver's license? Should the disability rights activists lobby for amending the ADA after the 2006 midterm congressional elections? Or, should they stay this cloudy course and hope for more narrow victories?

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Bagenstos: 2/7/06, 11:08 AM
I have a bit of a bias here. I represented the plaintiffs in both Lane and Georgia in the Supreme Court, and I'd have to have a lot of cognitive dissonance if I wasn't happy to have won both cases. I also have internalized a bit of the litigator's perspective that a win is a win. After the Supreme Court's Garrett decision, a lot of people thought that the court might next say that Congress didn't have power under the Fourteenth Amendment to apply the ADA to states at all. Lane and Georgia both gave the court the opportunity to take that next step, but in both cases the court instead upheld the ADA as applied to the facts before it.

I think this is all to the good. Lower courts are very attentive to signals from the Supreme Court—and sometimes the signal sent by a Supreme Court opinion is more important to lower courts than its reasoning. Lower courts were already inclined to be hostile to ADA claims, and the string of high-profile Supreme Court decisions ruling for defendants under the statute surely bolstered them in translating their hostility into restrictive legal doctrine. What Lane and Georgia can do is send a signal that the Supreme Court won't reject all ADA claims—and will sometimes even (as in Georgia) reverse a lower court that is too hostile to the statute.

The problem, as you suggest, is that the issues addressed in Lane and Georgia, while extremely important, are quite distant from the day-to-day matters that are central to disability equality. Lane and Georgia don't make those matters any better. But they don't make them any worse, either. Although it's an area that's extremely important to me, I just don't see much of a popular movement for disability rights. There's broad support for disability rights in the abstract—which is why the ADA passed overwhelmingly with bipartisan majorities in the House and Senate—but that support is extremely shallow. I don't think that anti-ADA decisions in Lane and Georgia would have energized a movement to strengthen the ADA, any more than I think most people were upset by the string of earlier decisions in which the Supreme Court did narrow the statute.

Lots of aspects of the ADA, in my view, cry out for amendment. If the statute's public accommodations title had meaningful remedies, to take my pet issue, there wouldn't be so many inaccessible businesses in this country. And courts have made lots of decisions under the ADA that I'd be very happy to overturn by statute. But my cold political calculation is this: Any amendments to the ADA are as likely to weaken as to strengthen the statute. So yes, I think the best disability rights advocates can do at this point is to stay the cloudy course.

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O' Brien: 2/8/06, 08:34 AM
Sam, thanks for your response, which, as you note, is not surprising given your position as a litigator. And of course, we can both agree that a victory is always better than a defeat. But, still what concerns me is, can those in favor of advancing disability rights afford to separate a legal strategy from a political one?

For any social movement, there is a danger of what Stuart Scheingold called a "myth of rights." Private suits have great difficulty producing significant social reform. A whole school of scholars believe, as Michael McCann puts it, that "litigation provides at best a momentary illusion of change rather than real substantive empowerment for traditionally marginalized citizens."

Back in 1971 and 1972, several members of Congress proposed amending the Civil Rights Act of 1964 so that it covered the disabled. But offering the same cold political calculation that you have for disability rights, it was the civil rights movement that feared opening the door to amendments. For marginal groups there is always this danger. And the difference between now and then is that given the federal courts' hostility toward disability, there is less to lose.

The first disability rights legislation, Section 504 of the Rehabilitation Act (1973), as disability rights expert Richard Scotch documented, was unintended. Senate staffers threw it in the bill, giving it little forethought. It was a fledgling disability rights movement, however, that influenced the formation of the federal regulations that enforced this unintended disability rights section, which eventually led to the ADA's passage. The disability rights movement helped draft this legislation. So the bipartisan support for disability rights was shallow. But, as I show in Crippled Justice: the History of Modern Disability Policy in the Workplace, no one in the disability rights movement anticipated the depth of the federal courts' hostility toward this legislation.

If, as you say, advocates of disability rights can be assured that the Supreme Court has sent down a message that not every case will be overturned, I'd say that before eschewing politics or discounting the impact of social movements, they should examine the history of other rights movements and carefully assess the cost of pursuing a strategy that only involves litigation. Every movement needs a bully like Bull Connor for civil rights mobilization. But to use the strategy of litigation here, what I would recommend is the more moderate position of using the law as a tool for mobilization. As McCann develops in his groundbreaking book Rights at Work, a movement should view what cultural and social norms are underlying legal practices. So, my question to you is what message does U.S. v. Georgia send? How many prisoners win suits under the 8th amendment, showing that they've experienced cruel and unusual treatment?

Bagenstos: 2/8/06, 12:53 PM
I think we're talking about two different kinds of messages the court can send, and it's important to disentangle them. One is the message to lower courts. On that score, Lane and Georgia send a good message from a disability rights perspective, because they'll make it at least somewhat more likely that lower courts will allow (this class of) ADA claims to proceed. The other is the message to the public and political community at large. On that score, you seem to be suggesting, Lane and Georgia might have more negative effects. The argument would be that high-profile decisions from the Supreme Court make people think that disability rights are being protected, when in fact they're not. So what seems like a win can actually sap the strength of a political movement at exactly the wrong time.

I don't disagree that courtroom victories can sometimes have that kind of perverse effect, and I'm a big fan of Scheingold's and McCann's work myself. But if that's the problem here, the problem is much broader than Lane and Georgia. The problem is the ADA itself. Passage of the ADA gave the disability rights movement a false sense of its own strength. Lots of people seem to have thought that the nation had now endorsed the principles of disability rights, and that all that was left to do was to go to court to enforce those rights. I think we've learned some harsh lessons in the last 15-plus years: the apparent strength of the disability rights movement was a bit of an illusion; our nation has not yet come close to internalizing disability rights principles; and without a broader cultural and political change, judges can't be counted on to read the ADA in a way that gives full account to disability rights.

But that's a problem with a social-movement strategy that has an inside-the-beltway focus. It's not a problem with any particular judicial decision that favors disability rights. Passage of the ADA may have (perversely) taken a bit of the wind out of the sails of the disability rights movement, but the existence of the ADA gives disability rights advocates a new resource (to borrow another term from Scheingold) that can be used to achieve real political victories. De-institutionalization litigation, which you mentioned in your first post, is a perfect example. After the Supreme Court's 1999 decision in Olmstead v. L.C., disability rights advocates have been able to use the threat of ADA litigation to force states to address, through a political process, the problem of unnecessary institutionalization of people with mental retardation and/or mental illness—and the problem of how to assure the proper support for de-institutionalized persons in a community setting. Things haven't proceeded exactly how disability rights advocates would have liked in this process, but there is no doubt that the ADA, and the Olmstead decision, have given those advocates a resource that has enhanced their bargaining position.

But what about cases like Georgia, you say? How does the case of a prisoner who can't turn his wheelchair around in his cell and has no access to an accessible toilet lead to political mobilization? Even if it doesn't, I'm not sure why it's not an unqualified good to protect people against such barbaric conditions. And I think the connection between the purely legal victory in a case like Georgia and political mobilization in settings like deinstitutionalization is clear, if indirect. Adverse decisions in Lane and Georgia might have threatened the constitutionality of the ADA as applied to de-institutionalization—and thus threatened to take away an important political resource for the disability rights movement. The legal victories in these cases thus keep that political resource alive.

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O'Brien: 2/9/06, 11:28 AM
Yes, I couldn't agree more that we should disentangle the political from the legal strategy here. And don't get me wrong, it's good that the lower courts will weigh whether this class of people—prisoners—can be covered under the ADA. Also, we've both now recognized that the Olmstead decision is a clear cut victory that advances disability rights and this decades-old policy of de-institutionalization. But it's telling that you chose to advance your legal strategy argument from the perspective of de-institutionalization, and not prison rights.

What chance does Tony Goodman have of winning his case now that it goes back to the lower court? While prisoners represent a fifth of the federal court docket, Margo Schlanger showed in a Harvard Law Review article that their success rate is below fifteen percent. (Little data on the state courts but I would doubt that it is any better, if not worse.)

My question to you, however, is more along the lines of, have disability rights really come down to this? Has the Supreme Court narrowed the ADA's claims so much that it is necessary to bring in the 8th Amendment? Is the state's only obligation to make sure that there is an absence of cruel and unusual treatment? Put different, are disability rights relief from barbaric treatment and no more? Shouldn't the ADA do more than that?

I've also been wondering how this reliance on an amendment plays out given constitutional avoidance theory. Doesn't the judiciary have an inbuilt judicial bias against relying on the constitution? So, why are disability rights cases any different?

I agree that the American public hasn't fully internalized disability rights (though I don't quite understand what being inside the beltway has to do with it). Disability rights have come a long way and there are many positive signs. Putting it in perspective, over thirty five years ago, children with disabilities did not have a basic right to public education. Persons with disabilities are accepted in American society more than ever before.

But, it will be more difficult for public opinion to gain more momentum if the Supreme Court puts on a "sideshow." If the ADA has been undermined in all but de-institutionalization, isn't it incumbent upon us to show how few people will be affected by this pair of narrow victories?

And finally to pick up another thread in one of your responses, what should be done about getting persons with disabilities more access not just to public services but also as consumers in private businesses? Will relief come from the judicial branch, particularly now that Samuel Alito has take Sandra Day O'Connor's swing vote seat on the Roberts' Court?

Bagenstos: 2/9/06, 04:15 PM
Ruth, I think we agree more than we disagree here. A few final thoughts.

First of all, I agree that the Supreme Court sideshow shouldn't distract our attention from the real limitations that the ADA has—both those that were written into the ADA itself, and those the courts have put on the statute. But I frankly don't see how any of the decisions the court could have made in the Georgia case would have had any effect on public mobilization for disability rights. If the court had held that the ADA can't be used to seek money damages against states, some folks might have complained, but I doubt any movement would have been energized. The court limited the ADA in a lot more significant ways in the cases involving the definition of disability—cases that held that only a narrow group of people are protected by the law—but no movement rose up.

So I'm not so worried that victories in cases like this will hurt the disability rights movement. That's not to say that disability rights advocates should be trying to get the Supreme Court to decide lots of issues right now, but it is to say that when we have to be there, we shouldn't worry about trying our best to win.

And I agree that the disability rights movement has made great strides. But I don't think that's because of political mobilization in opposition to harmful Supreme Court decisions; it's because of the effect of laws on day-to-day interactions. Thanks to the Individuals with Disabilities Education Act, lots more non-disabled people than in the past go to school side-by-side with people with disabilities. That law has empowered two generations of people with disabilities to expect and demand inclusion and integration in society, and it has taught two generations of non-disabled people that people with disabilities aren't so different. The ADA, by making new buildings accessible to people with disabilities (a part of the statute that, from all I can see, is actually pretty well enforced), increases integration and visibility with much the same effects.

And it's those parts of the ADA that we really should be focusing on. I don't think the Georgia decision means that ADA has "come down to" anything. The issue in the case was important, for reasons I talked about in my last post, but to my mind the central parts of the ADA are the parts that weren't at issue in Georgia, and that the court has barely addressed in any case—those that deal with integration and inclusion in the myriad activities of day-to-day life. The scandal of the ADA is the massive underenforcement of the statute's requirement that businesses make their existing facilities accessible where accessibility is readily achievable. The only way to deal with that problem is to enhance the remedies for violating that part of the statute, but the political momentum has been in the opposite direction: Proposals to limit the statute's remedies in public accommodations cases have been introduced in four consecutive Congresses, and business groups in California are preparing a ballot proposition that would limit the remedies under that state's counterpart to the ADA.

I think the basic problem for disability rights advocates is this: The disability rights movement was much stronger inside the beltway than out, so the ADA passed overwhelmingly but has been resisted at every turn, and that resistance diminished both the protections afforded by the ADA and the political support for it. Instead of working to expand disability rights further, advocates have been on the defensive. The question is how to get out of that defensive posture. I wonder what you think is the answer to that question, because I don't have lots of good ones.

So much to talk about! So little time! Thanks for giving me the pleasure of discussing these issues with you.

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O'Brien: 2/10/06, 09:13 AM
Many thanks for your final thoughts, Sam. I'm relating our discussion about U.S. v. Georgia to the realization and hope that legal and political mobilization must be made on the basis of its cumulative effects—not as a single, stand alone decision—but at the end of what we both see as a 15 year road of disappointments that the disability rights movement must address. The verbs that keep popping up in describing the court's interpretation of the ADA—gutted or eviscerated—reveal the distance between its legislative design and the judiciary's unanticipated hostility to it.

I realize that, I too, don't have a lot of good answers prescribing the best course of action for disability rights activists. You're absolutely right that now is not the time to bring more disability cases before the new Roberts' Court. Nor is it surprising that a Republican-controlled Congress and a Republican President favor further draining the ADA of its enforcement powers

But, when the time comes—and it may be as soon as next fall if the Democrats regain their footing—disability rights activists should join forces with the larger civil rights movement, and start reframing some of the old questions about rights. Perhaps, Yale law professor Kenji Yoshino has started pushing the many identity groups in the right direction. In Covering: the Hidden Assault on Our Civil Rights, he explores what prejudices still lurk in American society. Taking his cue from the late disabled social scientist Erving Goffman, Yoshino shows that those who are different—those who deviate from the white, male, straight, supposedly normal norm—can now "pass" and be accepted as long as they don't contest the dominant culture. (He's applying the military's "don't ask, don't tell" policy to civil rights.) And indeed, most overt forms of prejudice, particularly against women and people of color, are gone.

Exploring the notion of difference through the lens of disability in Bodies in Revolt: Gender, Disability, and a Workplace Ethic of Care, I argue that persons with disabilities have a great capacity to change culture in two ways that are worth mentioning here. First, by getting other identity groups to recognize how much the fluidity of a "disabled identity" can reframe the old rights dilemmas. And second, by universalizing the notion of accommodations. Accommodations, after all, are not a sign of one's identity. Nor are they "owned" by the person using them. Parents with baby carriages, for instance, use ramps. Yet, ironically, while accommodations are an overt sign of someone's difference, they have the greatest capacity for making a rights culture more universal.

We also have to remember that a mobilization strategy does not have one architect. It bubbles up from below. Mary Johnson reminds us that "a law cannot guarantee what a culture will not give." So, while we both wonder if the Supreme Court's rulings mean that American culture rejects disability rights, neither one of us could offer an unequivocal denial. American society and culture have come a long way. So, hopefully as the political climate changes and civil rights movements gain more power, culture will be ever more accommodating and statutory accommodations will in turn change our culture.

It's been a pleasure having this enlightening exchange with you Sam.

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