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Moves made to declare ADA
Title 2 'unconstitutional'

"[E]xtension of Title II of the ADA to the State exceeds Congress's authority under Section 5 of the Fourteenth Amendment," said the U. S. Court of Appeals for the 8th Circuit.

This was in July. Since then, efforts have gotten underway in several states to get similar rulings out of other Circuit courts.

When a Circuit Court rules a law to be "unconstitutional," the ruling effectively cuts off further lawsuits from being brought under that law, say activists. There's a move across the nation to get Title II declared "unconstitutional."

The 8th Circuit's July 23 decision came in the case Christopher B. Alsbrook v. City of Maumelle, Arkansas. Title II outlaws discrimination in activities of state and local governments. The June 22 Olmstead decision from the U.S. Supreme Court concerned a Title II case.

The 8th Circuit comprises Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.

The state of Maryland, which is in the 4th Circuit, and the state of Florida, in the 11th Circuit, have been pressing the courts to issue rulings on the constitutionality of Title II. In late December, Maryland succeeded in getting the 4th Circuit to agree to re-hear the case Amos v. Maryland Dept. of Public Safety & Correctional Services, in which Maryland is seeking to have the courts declare the ADA unconstitutional. Four other Circuit Courts have ruled Title II to be constitutional.

A case testing the constitutionality of the ADA will almost certainly go before the Supreme Court soon, say activists.

In July, Maryland petitioned the 4th Circuit Court of Appeals to re-hear the case Amos v. Maryland Dept. of Public Safety & Correctional Services, seeking to have the 4th Circuit declare the ADA unconstitutional. In December, the Court agreed to re-hear the case.

On August 16, Florida asst. attorney general Stephanie Daniel asked the 11th Circuit to rule on the constitutionality of Title II as part of her filing appealing the class certification of plaintiffs in the Prado-Steiman v Bush developmental disabilities lawsuit -- a long-running suit on the adequacy of Florida's historically underfunded home and community based waiver program.

"Florida advocates representing people with disabilities have become quite alarmed," says Gary Blumenthal of Florida's Protection and Advocacy programs, by Daniel's brief "asking the 11th Circuit Court of Appeals to declare that the ADA violates the Tenth and Eleventh Amendments to the U.S. Constitution."

The Fourteenth Amendment was used by the 8th Circuit as its basis for declaring Title II unconstitutional. But other amendments are also used. The Eleventh Amendment gives states immunity in Federal court from certain kinds of lawsuits. A few years ago, the U.S. Supreme Court ruled in the case Seminole Tribe v. Florida that Congress had no authority under the Commerce Clause to pass a law permitting states to be sued in Federal court.

In 1997, the Supreme Court ruled that part of the Brady gun-control law violated "state sovereignty." The ruling, in Printz v. United States was based on the Tenth Amendment,. which limits Federal authority over states.

Since then, states have been trying various strategies to get out of obeying various federal laws, particularly ones having to do with nondiscrimination, said one analyst. "Florida, of course, won the Seminole lawsuit so it's not surprising they're trying this again."

"Daniel's motion seems to contradict the State's earlier action in February when the State and Attorney General Butterworth backed away from their national leadership role in seeking to appeal and overturn the 11th Circuit decision in the Olmstead decision," says Blumenthal. "That appeal also sought to dilute and overturn the Americans with Disabilities Act -- and further sought to weaken efforts to apply ADA standards to the implementation of state policies affecting people with psychiatric and developmental disabilities.

The reason Florida backed off Olmstead was public outcry.

"Responding to a national and state outcry against Florida's role in seeking to overturn and weaken the ADA, both Butterworth and Florida Governor Jeb Bush indicated to disability advocates that they each played a key role in getting Florida to withdraw from the Olmstead appeal and from that anti-ADA posture," says Blumenthal.

"Both Butterworth and Bush have publicly stated their personal responsibility and activity in getting Florida to withdraw from the Olmstead appeal, thus indicating that the State of Florida was not seeking to weaken or overturn the ADA."

Now, says Blumenthal, it seems Florida is up to its former tricks, again seeking to get the ADA declared unconstitutional.

A coalition calling itself "Marylanders For Civil Rights of Persons with Disabilities" wrote to Gov. Parris N. Glendening and Maryland Atty. General Joseph Curran in late July, saying their call for a re-hearing "has jeopardized the civil rights of thousands of persons with disabilities in Maryland as well as a broader five-state region covered by the 4th Circuit, and is as untenable to our citizens as the position Maryland wrote initially in the Olmstead Amicus supporting the petition to the Supreme Court."

The letter was signed by a large number of groups including the Maryland Statewide Independent Living Council, The Arc of Maryland, various Maryland ADAPT chapters, the Maryland Association of Psychiatric Support, the Maryland Developmental Disabilities Council, the Maryland Disability Law Center, the Public Justice Center, the TASH Mid Atlantic Chapter and the Delaware-Maryland Paralyzed Veterans Association.

The move, they said, would "dismantle decades of effort by the entire disability community, both in Maryland and nationally, to formulate and preserve civil rights protections.

The group who signed the letter had met with the Glendening last spring about the Olmstead case, and had succeeded in getting the state to withdraw its support of that lawsuit.

Last spring's effort by activists, which Blumenthal also referred to, occurred in many states and resulted in the unprecedented move of over a dozen states which had originally filed friend-of-the-court briefs supporting the Olmstead case withdrawing their opposition. (See Attorneys general withdraw support for Georgia's appeal.)

Now, it seems, at least in the cases of Florida and Maryland, the states have just found a second opportunity to again raise their issue of being free from having to obey federal laws.

"Under your leadership, the disability community was promised that we would be consulted on a range of issues and policies that affect the lives of our constituencies," the Maryland coalition wrote Glendening. "Your dramatic policy shift in seeking to declare the Americans with Disabilities Act unconstitutional was adopted entirely without our knowledge and strikes at the core of the fundamental civil rights for citizens with disabilities. We urge you to rethink your position and to withdraw the petition for rehearing immediately."

Blumenthal encourages advocates to inquire of Gov. Bush some "clarity regarding the State's position overturning the ADA."

Blumenthal says "it is possible that the Governor may not be in full agreement with what is being filed on his behalf. Each office is independent of the other and controlled by opposite political parties.

"Regardless," he says, "question remains for Governor Bush and Attorney General Butterworth: "Who speaks for the State of Florida on the ADA?"

Fight 'em all!

The fight by states to get out of having to obey federal laws isn't simply against the ADA -- it's against all federal laws.

In August, the 8th Circuit also ruled that states were immune from lawsuits under Section 504 of the Rehabilitation Act as well, Section 504 "an invalid exercise of Congress's power under Section 5 of the Fourteenth Amendment." The ruling came in the case Thomas Bradley v. AR Dept. of Education



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