Americans With Disabilities Act 42 U.S.C. 12101 (1990) (Update)

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The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990, and became effective two years later. Title I of the statute prohibits employment discrimination on the basis of disability in the private sector, Title II prohibits discrimination in the provision of goods or services by public entities, and Title III prohibits discrimination in the provision of goods or services by public accommodations including a requirement of removal of barriers to access.

To justify the constitutionality of ADA, Congress invoked "the sweep of congressional authority, including the power to enforce the fourteenth amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities" in its statement of purpose. Consistent with that declaration, it defined an employer under Title I as a "person engaged in an industry affecting commerce." Similarly, it defined a public accommodation in Title III as one of various entities like an inn or motel "if the operations of such entities affect commerce." Thus, Congress was careful to draft Titles I and III so that their constitutionality would be upheld under congressional power to regulate inter-state commerce.

Title II, however, could not be justified under the commerce clause because it created a private right of action against state government. Because of the sovereign immunity of the states recognized by the eleventh amendment, that kind of right can only be created pursuant to the fourteenth amendment, section 5 enforcement power. Hence, Congress also justified its authority for enacting ADA pursuant to the Fourteenth Amendment.

Despite the care with which Congress drafted ADA to ensure its constitutionality, there have been numerous constitutional challenges to Title II of ADA. In each case, a state was sued by a private citizen under Title II and responded that the Eleventh Amendment barred suit for damages. The appellate courts rejected this argument, finding that Congress effectively abrogated states' Eleventh Amendment sovereign immunity from suits under ADA, pursuant to its Fourteenth Amendment enforcement power.

The Eleventh Amendment states: "The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." This provision also prohibits suits brought against a state in federal court by its own citizens.

In Seminole Tribe of Florida v. Florida (1996), the Supreme Court held that the states' Eleventh Amendment sovereign immunity can only be overridden by Congress if it enacts legislation to regulate the states pursuant to its Fourteenth Amendment enforcement power. Further, the Court held that Congress must have intended to abrogate sovereign immunity by providing "a clear legislative statement" of its intent.

The federal circuit courts are in agreement that Congress has met this test with respect to ADA. Title II states explicitly that "A state shall not be immune under the eleventh amendment." Further, Congress specifically invoked its enforcement powers under the Fourteenth Amendment in enacting the statute. The remaining titles of ADA are readily justified by the commerce clause, and there have been no serious challenges to their constitutionality.

Nonetheless, the Court has recently strengthened the states' sovereign immunity recognized by the Eleventh Amendment. In the 1998–1999 term, the Court struck down three statutes that violated the states' sovereign immunity. None of these cases involved civil rights statutes but they do raise some concerns about the constitutionality of such laws, including Title II of ADA. Moreover, at the time of this writing, the Court has agreed to hear argument in a case challenging the constitutionality of the Age Discrimination in Employment Act as violating state sovereign immunity in the 1999–2000 term. Thus, we can expect more activity from the Court in the area of sovereign immunity. It is possible that the Court will eventually side with the dissenting judges in the circuit courts, who have concluded that ADA Title II exceeds Congress's enforcement power under section 5 of the Fourteenth Amendment.

Outside the constitutional context, the Court has shown considerable interest in ADA. In the 1997–1998 term, it concluded that the term "individual with a disability" within ADA covers individuals who have HIV infection.

In the 1998–1999 term, it rendered decisions in five ADA cases. (The Court only rendered a total of seventy-five decisions by full opinion that term; so, five cases represented an unusual amount of attention by the Court for one statute.) In three of those cases, the Court accepted a narrow definition of the term "individual with a disability." Under that narrow definition, an individual is disabled (and thereby covered by ADA) if he or she has a physical or mental impairment that substantially limits that individual in one or more major life activities after the individual has had an opportunity to use mitigating measures such as medicines or prosthetic devices. Although the plaintiffs in those cases had hypertension and visual impairments, the Court's decisions raise the question whether individuals with mental illness, diabetes, or seizure disorders that are controllable with medication will be covered by ADA.

In another important case from the 1998–1999 term, the Court concluded that ADA Title II prohibits unnecessary institutional segregation so long as the state cannot show that, in the allocation of available resources, immediate integration for individuals with disabilities who live in institutional settings would be inequitable, given the responsibility the state has undertaken for the care and treatment of a large and diverse population of individuals with disabilities. This case is the equivalent of brown v. board of education (1954) for the disability community. Nonetheless, its holding will not be sustainable if ADA Title II is struck down as unconstitutional.

Ruth Colker

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Americans With Disabilities Act 42 U.S.C. 12101 (1990) (Update)

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