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January 24, 2006 | Read comments | Post a comment

Amazingly naive, or...

Or what? I'm not sure I can come up with a word.

The American Association of People with Disabilities has sent what it calls a "final letter" to the Senate on the Alito nomination. It's really an embarrassment for disability rights: After expressing their "ongoing concerns regarding the Supreme Court's approach to Congressional power to protect individuals with disabilities and others against discrimination by states," they go on to say this:

Although we continue to have questions about whether replacing Justice O'Connor with Judge Alito will result in an improved understanding of the unique and proper role of Congress to make findings and craft remedies when the states are violating the civil rights of their own residents with disabilities, we note some hopeful signs from Judge Alito's response to questions from Senators Coburn, DeWine, Specter, and Biden at his confirmation hearings.

When asked by Senator Coburn to comment about what is important to him personally and how that influences his approach to cases, Judge Alito made several observations, including the following: "When I have a case involving someone who's been subjected to discrimination because of disability, I have to think of people who I've known and admire very greatly who've had disabilities, and I've watched them struggle to overcome the barriers that society puts up often just because it doesn't think of what it's doing ...

The word comes to me now: "Aaaaarrrrggggghhhh!"

"This statement gives us some hope that Judge Alito has a better appreciation of the nature of disability discrimination than some of the members of the current Court," they continue, and finally end with this:

We share many of the concerns that have been expressed by some of our colleagues in the disability community. For us, however, there are enough positives in Judge Alito's record and responses to give us hope that he will move the court in a positive direction for our community."

As humorist Dave Barry says: I am not making this up. Read it yourself here.

Whatever do they hope to accomplish with this piece of toadying? The only thing I can think of is to keep the Republican pro-Alito Senators pacified, so their future lobbying chances aren't hurt too badly.

Seems a pretty rotten approach for a national group concerned with disability rights, though.

I guess it's me who's naive.

Posted by mjohnson on January 24, 2006 11:27 AM


The U.S. Senate Should Reject Alito for the Good of Disability Rights and Justice for All

By Jim Ward, President of ADA Watch/National Coalition for Disability Rights

More info at: www.adawatch.org

Even after the U.S. Senate Judiciary Committee hearings and vote, one area of Judge Samuel A. Alito’s record remains unexamined by most major media: his views on the rights of Americans with disabilities.

A close look at Judge Alito’s opinions and writings makes it clear that he would likely reverse the historic gains of people with disabilities. He has relied repeatedly on a cramped vision of congressional authority to protect the rights of all citizens, and he has routinely ignored the factual record of discrimination and abuse of people with disabilities.

Alito's decisions as a judge on the U.S. Third Circuit Court of Appeals offer insight into his disturbing judicial philosophy and provide good reasons for why all fair-minded Americans should think twice about seeing him confirmed to the Supreme Court.

• In Pirolli v. World Flavors, Inc., in 1999, Alito wanted to dismiss the discrimination claim of a man with mental disabilities because his lawyer used incorrect language in the legal papers. The man’s coworkers had forcibly sodomized him with a broom, stuffed him into a garbage can, beat him and made humiliating remarks about his disability. Fortunately, the other Third Circuit Court of Appeals judges disagreed with Alito’s callous approach.

• In Nathanson v. Medical College of Pennsylvania, Alito wanted to deny a court hearing to a woman who claimed the school reneged on promises to provide her with special seating and other accommodations for her disabilities. Alito’s fellow Third Circuit judges said the standard of evidence that Alito wanted her to meet was so restrictive that “few if any cases would survive” motions to dismiss.

• In Sabree v. Houstoun, Medicaid recipients challenged Pennsylvania's failure to provide community-based intermediate care facilities for individuals with mental retardation. In a precedent-shattering verdict, the trial court ruled that the recipients had no right to go to court to enforce the requirements of the Medicaid Act. The Third Circuit reversed that ruling, declaring that they did. In Alito’s opinion, however, he noted that "the analysis and direction of the District Court may reflect the direction that future Supreme Court cases in this area will take..." This raises an ominous possibility for the direction of Alito’s Supreme Court.

• In Adapt v. U.S. Department of Housing and Urban Development, Alito held that a federal agency could not be sued for failing to enforce its own regulations on making housing accessible and adaptable for people with disabilities – even though HUD officials had admitted widespread compliance problems.

• In Doe v. National Board of Medical Examiners, Alito’s narrow reading of the Americans with Disabilities Act allowed the board to “flag” the test score of a candidate who had received accommodations during the licensing exam because of his multiple sclerosis. Such flags raise the likelihood of discrimination. Congress meant the ADA to cover broad circumstances and did not spell out every specific practice that it might prohibit.

Many more cases illustrate Judge Alito’s disregard for the claims of Americans with disabilities, and we invite you to examine them yourselves: Chittister v. Department of Community & Economic Development, Nevada Department of Human Resources v. Hibbs, Helen L. v. DiDario, Three Rivers Center for Independent Living v. Housing Authority of Pittsburgh, and Katekovich v. Team Rent A Car of Pittsburgh, Inc.

These cases and others indicate that Alito’s confirmation would put at risk the Americans with Disabilities Act (ADA); the Olmstead et al v. L.C. decision against institutionalization; Section 504 of the Rehabilitation Act; the Fair Housing Amendments Act; the Family and Medical Leave Act (FMLA); and other laws and precedents of great importance to people with disabilities.

For these reasons, a coalition of hundreds of national, state and local organizations concerned with these rights has united to oppose Judge Alito’s nomination. They include ADA Watch/National Coalition for Disability Rights, ADAPT, the Association of Programs for Rural Independent Living, the Disability Rights Education and Defense Fund, Judge David Bazelon of the Center for Mental Health Law, the Disabled Action Committee, the National Association of People with AIDS, the National Association of Rights Protection and Advocacy, the National Council on Independent Living, The Polio Society, the World Association of Persons with Disabilities and many more.

The fact that the next Supreme Court Justice will be filling the seat of Justice Sandra DayO’Connor is of particular concern to the disability community. While Justice O’Connor did not take the side of persons with disabilities in all cases, she was the swing vote in a number of important 5-4 disability rights decisions.

With the selection of Judge Samuel Alito, President Bush is making good on his stated intention to fill a Supreme Court vacancy with a nominee in the mold of Justices Scalia or Thomas – Justices who consistently ruled against people with disabilities in these narrowly decided landmark cases. If Judge Alito is confirmed, such 5-4 decisions would certainly go in the other direction and reverse the historic gains of people with disabilities.

We unhesitatingly call on the U.S. Senate to vote against confirmation of Judge Samuel Alito to the U.S. Supreme Court.

Jim Ward, Founder and President
ADA Watch/National Coalition for Disability Rights
1201 Pennsylvania Avenue, NW, Suite 300
Washington, DC 20004
email: jimward@adawtch.org
Visit Our Website: www.adawatch.org

Posted by: Jim Ward on January 24, 2006 01:43 PM

Your naivete isn't the problem, it's your aversion to using demagoguery for your own ends.

If you do what the adwriters for Broadway plays do with the negative reviews in their blurbs ("this is not a must-see" becomes "...a must-see..."

If you do "...I've watched them [PWD] struggle to overcome the barriers that society puts up..." you would be on the right track.

Remember that we now *honor* Olmstead who was the villain of the piece that bears his name! As in commending states for conforming to "the Olmstead decision".


Posted by: William Loughborough on January 24, 2006 02:36 PM

Remember that we now *honor* Olmstead who was the villain of the piece that bears his name! As in commending states for conforming to "the Olmstead decision".

"We" do not honor Olmstead, history does. The honor was bestowed by Atlanta Legal Aid when it filed the lawsuit that relegated Lois Curtis and Elaine Wilson to abstraction ("LC") without their consent or consult, and elevated Olmstead to name.

Advocates finally persuaded Atlanta Legal Aid to ask Lois and Elaine what they wanted, and of course, they wanted name.

At no time in pursuing the lawsuit did Atlanta Legal Aid amend the suit to include their names, nor did they ever inform the courts, including the US Supreme Court.

At no time has Atlanta Legal aid apologized for failing to do so, and at no time has Atlanta legal Aid accepted any responsibility for their misdeed. There is simply no need for them to do so. Elaine has died, Lois is yet alive to receive apology.

Harold A. Maio
Former Consulting Editor
Psychiatric Rehabilitation Journal
Boston University
239-275-5798 day/night
8955 Forest St
Ft Myers FL 33907

Posted by: Harold A. Maio on January 26, 2006 01:07 PM

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