On Oct. 11, Supreme Court justices will hear arguments in the case Board of Trustees of the University of Alabama, et. al. v. Patricia Garrett, et. al. The case with its overly-long title, known now simply as Garrett, is actually two cases, consolidated -- employment discrimination cases filed against the state of Alabama.
One involves a woman with breast cancer, Patricia Garrett of the Univ. of Alabama, who was demoted when she returned; the other is Milton Ash's -- a man with chronic asthma who asked the Alabama Department of Youth Services to enforce its non-smoking policy and not require him to drive cars that leaked carbon monoxide fumes into the passenger compartment; his accommodation requests were denied.
But the case is no longer about Garrett or Ash. It's a states' rights battle, just as it was back in the civil rights days, the latest in a series of cases in which states have challenged Congress's power to enact legislation regulating state conduct. Once again, states like Alabama (remember them from civil rights days?) are mewling that the federal government has overstepped its bounds; that Congress had no authority under the 14th Amendment to enact the ADA.
The question before the Court is this: "Are Titles I and II of the ADA a "proper exercise of Congress's power under Section 5 of the 14th Amendment?"
In 1997, the Court "said that when Congress uses its 14th Amendment authority to make a law, that law had to be a 'congruent and proportional' remedy for well-documented discrimination; that is, Congress could not find an obscure problem and enact a sweeping, drastic solution," writes disability rights attorney Amy Robertson.
"Congress did not show, or even try to show, that the states have previously violated the constitutional rights of the disabled," Alabama sneers. Arkansas, Idaho, Nebraska, Nevada, Ohio and Tennessee signed on to a brief from Hawaii siding with Alabama.
"Nothing could be further from the truth," retort the over 100 historians who filed their own brief. And they show why, on page after page -- citing over 300 laws passed by states that violate the right to marry, the right to vote, the right to bear children, the right to travel; laws requiring sterilization, requiring papers signed by doctors, requiring proof that we are not "sub-human."
No discrimination by states? You decide. Our special section shows you these laws and gives you the clear evidence. Our content is from "friend of the court" briefs filed on behalf of the ADA -- we used the official brief of the U. S. Attorney General, as well as the brief prepared by the historians, who "want to ensure that the well-documented evidence of widespread state discrimination against persons with disabilities is not forgotten by this Court."
A huge rally is planned Oct. 3 at the foot of the Supreme Court steps. In recent years, the disability nation has met at those steps with increasing frequency as the nation's highest court tries to figure out disability rights, the thing that, as journalist Joe Shapiro once wrote, took the nation by stealth. The nation doesn't understand disability discrimination.
But if activists have anything to say about it, our nation is about to get a massive history lesson.