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I found "Make Them Go Away" invaluable in forming our arguments to convince Governor Gray Davis, Attorney General Bill Lockyer and the Medical Board of California to stop the Medical Board of California v Hason appeal to the U.S. Supreme Court.
-- HolLynn D'Lil

After California win, another fight:
Activists push to get Tennessee Gov. to drop Supreme Court ADA case

NASHVILLE, Sept. 18, 2003 -- Letters from disability rights activists have been finding their way into the offices of Tennessee Gov. Phil Bredesen, part of a campaign by activists in Tennessee and California to get Tennessee to withdraw its appeal before the U.S. Supreme Court in the Americans with Disabilities Act case Tennessee v. Lane & Jones, which the Court is slated to hear this fall.

The 55,000-member American Association of People with Disabilities asks Gov. Bredesen to drop the appeal. Read letter.
Read more about Tennessee v. Lane

The appeal "originates from a suit brought by George Lane and Beverly Jones," says HolLynn D'Lil, one of the activists working to get Tennessee to withdraw its appeal. "Mr. Lane had to crawl up the stairs to defend himself against criminal charges because the courthouse lacked an elevator, and the state refused to conduct the proceedings in an alternate accessible location. Ms. Jones, who is wheelchair mobile, is a court reporter and was unable to get to the courtroom to do her job because of a similar refusal by the state to provide reasonable accommodations."

The state, like Alabama two years ago in the Garrett ADA Title 1 case, is arguing that Congress had no right to pass the ADA, that there was no real evidence that states have discriminated against disabled people. The case "involves the right to fundamental access to state court buildings, and if Tennessee wins, it will further damage our rights," said D'Lil in an email in late August. D'Lil was active in last winter's successful effort to get California to withdraw a similar ADA appeal to the Supreme Court.

Tennessee ADAPT members and advocates from California visited both Bredesen's and Tennessee Attorney General Paul G. Summers's offices in late August, trying to "persuade the governor and the attorney general that Tennessee should not become known as the state that destroyed the ADA."

TN Dep. Gov. Dave Cooley tries to convince advocates the state supports the rights of people with disabilities.

I want you to know that this administration is fully committed to the Americans with Disabilities Act.
-- Tenn. Gov. Phil Bredesen, in a letter

Reports by activists from the meeting suggest that the officials tried to convince the group that the case was "no big deal," that if the Supreme Court sided with Tennessee, all disabled people would lose is "the right to to compensatory damages," that it didn't affect "civil rights."

Indeed, in a letter to D'Lil, Gov. Bredesen writes that "I want you to know that this administration is fully committed to the Americans with Disabilities Act.

"I know that the ADA has been critical to expanding and protecting the civil rights of disabled Americans," he continues. "This state and this country cannot afford to turn our back on the progress we have made, and I would never intentionally take any action that would risk eroding these hard fought rights.

"It is my understanding that this particular case does not involve a question of whether or not Tennessee will comply with the ADA," writes Bredesen. "Instead, this case involves a narrow legal issue of whether plaintiffs can collect compensatory damages in these types of cases."

D'Lil bristles at the suggestion that loss of compensatory damages is a small matter.

"The loss of compensatory damages, which we have already lost in state employment cases thanks to the Supremes' Garrett decision, is no small matter," she insists. "All other minority groups can be compensated when they are damaged by states," she points out, and adds that, without the right to sue for damages, "there will be no incentive for states to stop discriminating against people with disabilities" -- and this, she insists, is "Tennessee's real intent" in appealing the case to the Supreme Court.

If someone with a disability "wants to take a class offered by the state to obtain a job, or wants to get a license, and either can't get in the building or is refused reasonable accommodation such as a sign language interpreter -- or whatever is needed because some bureaucrat working for the state refuses to provide the necessary accommodation -- what is the consequence to that bureaucrat and to the state? Nothing." Even if the disabled person sues the state, and the state loses the case, she says, the only consequence to the state is that it "has to provide the reasonable accommodation such as accessible location or Brailled materials.

"What does that cost the state? Practically nothing. What does it cost the person with the disability who wins the lawsuit and the accommodation but receives no monetary compensation? A lot, in lost wages, lost opportunities, lost self esteem."

If the state attorney general had "devoted the same level of energy to enforcing and complying with the ADA as his office has toward the further dismantling of our civil rights legislation, we'd be much ahead of where we are now," wrote Tennessee activist Fred Dinwiddie after reading the state's brief to the Supreme Court. "This document would set us back more than 30 hard-fought years."

"The truth is that Congress passed the ADA because of overwhelming evidence that people with disabilities were not being treated fairly," Tamar Raine lectured Bredesen. "The Civil Rights Act was passed because people of color weren't being treated fairly. I don't hear anybody challenging the Civil Rights Act -- even though it too is a federal mandate that States must abide by. What makes the ADA any different?"

"A.G. Summers fails to see that it is the inaction of the states, rather than their overt 'actions,' that perpetuated the conscious and unconscious biases, prejudices, discriminatory practices and attitudinal and architectural barriers that were and still are embedded in American society," said Dinwiddie.

"Tennessee v. Lane would never have become a case if the courthouse, 30 years after requirements under Section 504 of the Rehabilitation Act of 1973 were in law, had been addressed, and accessibility to the built environment provided," wrote Walter Parks, a longtime California activist.

"How would you feel if you lost the use of your legs and couldn't get to a courtroom to defend yourself?" Raine continued in her letter to the governor. "Would you want to be forced to crawl up and down several flights of stairs? Would you want everybody to be staring at you as if you were an animal in a zoo?

"This is about accessibility, and it's about dignity as well. What if you contracted polio, and lost the use of you legs but were determined to be self-supporting and decided to become a court reporter, but after you got your diploma you can't find a job because all the courtrooms were inaccessible to you? What would you feel? What would you do?"

Still, is withdrawing the case such a good idea? Many disability rights attorneys aren't so sure. They say the Supreme Court will, sooner or later, take a ADA Title 2 case in order to rule on the issue as to whether Title 2 is constitutional. "The Court is going to decide [a Title 2 ADA case] at some point soon, and this is one case that offers a glimmer of hope that they'll do the right thing and hold that Title 2 is constitutional," says Denver disability rights attorney Amy Robertson. "A very faint glimmer, but a glimmer nonetheless."

"These efforts to derail cases are incredibly time- and energy-consuming," she adds, and thinks that "a better use of our energy would be to fight hard to elect a Democratic president and Democratic senators in 2004 so that we can actually get better judges -- at the Supreme Court and lower federal court levels."

But a lot of activists don't feel that glimmer of hope. "The likelihood that the Supreme Court will rule in our favor is very low," says Sarah Bates, board member of Independent Living Services of Northern California. "The Court has already ruled [in Garrett] that Congress erred when it passed the ADA in that it did not document sufficiently that there was a prevailing pattern of discrimination against people with disabilities by states. We must fight this appeal. We would be foolish to think that the Supreme Court has changed its mind since they made the Garrett decision."

In late August, the Paralyzed Veterans of America issued a statement asking Tennessee "to reconsider its appeal" of Tennessee v. Lane. "The issues that Tennessee seeks through the appeal should not be resolved at the expense of the cherished rights of citizens with disabilities"; it said, and called on other states not to sign amicus briefs in support of the appeal.

Posted Sept. 18, 2003

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