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John G. Roberts is a fitting replacement for Sandra Day O'Connor. After all, he gave her the ammunition she needed to whittle back ADA protections in her Toyota v. Williams opinion. MORE.



Sandra Day O'Connor has retired. While pundits and activists play the "who's on next?" game, Ragged Edge thought it might be useful to take a look at what Justice O'Connor actually did for disabled people in this country. What she did not do, unfortunately, is more significant.

Sandra Day O'Connor and disability rights

By Mary Johnson

In the opinion columns, retiring Supreme Court Justice Sandra Day O'Connor is being lauded for being a centrist, not an ideologue; a pragmatist who focused on facts rather than broad judicial principles. It's for these reasons, of course, that she played such a pivotal role on the Court, the deciding vote on many of the Court's almost routine 5-4 decisions. While one could usually predict the decisions of the Court's arch-conservatives or its staunch liberals, O'Connor could never be so easily read.

It seems that she had two overarching views when it came to disability: she was genuinely compassionate toward the "truly disabled." But she had also bought hook, line and sinker the right-wing case against the Americans with Disabilities Act. floated by the conservative Cato Institute and its ilk during the 1990s and proclaimed by lower court judges.

She didn't think much of the ADA itself, thought it was poorly crafted and gave entirely too much power to people to "claim disability" and to get a free ride from beleaguered employers.


IF THERE'S ONE THING THAT CAN BE SAID about disability rights, at least when looking at the U.S. courts, it's that there is no awareness on the part of most judges that there is such a thing as a disability rights philosophy or ideology -- no recognition that the ideas underpinning the ADA had been thought out and were based on sound reasoning. Virtually no one, save for some disability rights attorneys, some disability studies scholars and some activists, seems to have any idea of what a "disability rights ideology" might be.

In 2002, O'Connor, in a speech at the Georgetown University Law School, called the ADA "an example of what happens when ... the sponsors are so eager to get something passed that what passes hasn't been as carefully written as a group of law professors might put together."

"It leaves lots of ambiguities and gaps and things for courts to figure out," she told the group, according to the Associated Press's Anne Gearan.

O'Connor "clearly misunderstands the intent of the statute," said Ohio State University's Ruth Colker at the time of the Court's 2002 ruling for Toyota and against worker Ella Williams. O'Connor had "a paternalistic, stereotypical perspective," added Colker, going on to suggest that the Supreme Court justice might have intentionally misunderstood the law.

"O'Connor is not really any different than many Americans," wrote disability activist Jennifer Burnett, commenting on her Toyota opinion. "She's getting stuck on defining disability rather than considering the discriminatory practice of Toyota Motors."

Sandra Day O'Connor seemed to feel compassion for the "truly disabled" -- and have not a clue about disability discrimination as defined in the Americans with Disabilities Act.

Unlike the Civil Rights Act of 1964, which "came after a tremendous amount of mass consciousness-raising about race and racism, the ADA passed with very little understanding of what disability discrimination really is," said Boalt Hall professor Linda Krieger, as a series of ADA employment cases were quietly making their way to the Supreme Court, to be the first ADA cases decided that body.

The ADA "was based on a socio-cultural model of disability that judges don't understand," said Krieger. "Judges operate from an 'impairment model' or a 'social welfare/benefits model.' They keep asking whether the plaintiff is 'sufficiently impaired' to 'deserve protection' under the ADA."

Sure enough.

On June 22, 1999, the Court ruled on its first Americans with Disabilities Act cases -- Sutton, et al v. United Air Lines Inc., Murphy v. United Parcel Service, Inc. and Albertsons, Inc. v. Kirkingburg -- ruling 7-2 that the ADA doesn't apply to people whose disabilities are corrected -- or "mitigated."

"The determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment," wrote O'Connor -- and the thinking behind the ruling seems to be largely hers.

As would continue to happen, it seemed that O'Connor and her fellow Justices simply decided that the EEOC and the Department of Justice didn't know what they were talking about when they had issued regulations implemeting the law. To O'Connor, who wrote the Sutton opinion, the law's own 3-pronged definition of a disabled person as someone who either has a disability, has a history of a disability or is regarded as disabled didn't make any sense. No; she wrote, "Congress did not intend to bring under the statute's protection all those whose uncorrected conditions amount to disabilities."

"Justice O'Connor ignored the fact that the ADA, as originally proposed and as enacted, has a three-prong definition of an individual with a disability. Only the first prong deals with people with an actual disability," said law professor Robert L. Burgdorf, who wrote the original draft of the ADA and was a key figure in its passage. "Any person who is disadvantaged by an employer because of a (real or imagined) physical or mental impairment should be entitled to claim the protection of the statute." Burgdorf went on to note that the justices had apparently not consulted any of his or other disability legal scholars' books or law review articles about the history of the statute and the definition of the law.

It seemed the Court was thinking of of people with disabilities as people who "need help," wrote disability rights attorney Harriet McBryde Johnson. An ADA plaintiff, she said, "should not have to prove that he or she needs help, or is personally disadvantaged. An ADA plaintiff should only have to show discrimination to be able to use the law."

But this was an understanding that emerged from disability rights philosophy, and O'Connor did not seem to have a clue about this sort of thinking. Nor did she ever gain one. "Boy, are we trying to figure out some of the disabilities act issues!'' she admitted to the Georgetown Law School audience in 2002.

In January 2002, when Court ruled unanimously against Williams and for Toyota, O'Connor, who wrote that opinion as well, lectured that Ella Williams could still perform tasks "central to daily living" like brushing her teeth or cooking: she was not truly disabled and could therefore not use the Americans with Disabilities Act to sue Toyota, which refused to give her work that didn't involve exacerbating her injury.

"Merely having an impairment does not make one disabled for purposes of the ADA," insisted O'Connor, still not interested, it seemed, in comprehending what advocates had intended in drafting the law. "Claimants also need to demonstrate that the impairment limits a major life activity ... [and] that the limitation ... is 'substantia[l].'"

The Orange County Register called O'Connor's ruling "a common-sense approach to disability that could limit the number of lawsuits with little or no merit brought under the ADA." The paper quoted the Cato Institute, which said the fact that most cases were decided in favor of employers was "a sign of a poorly written law subject to too many possible interpretations."

In 1999, O'Connor ruled with the Court's 6-3 majority that Georgia's department of human resources could not segregate two women with mental disabilities in a state psychiatric hospital long after the agency's own treatment professionals had recommended their transfer to community care. O'Connor, along with 5 of her fellow Justices, agreed that the 'integration mandate' of the Americans with Disabilities Act requires public agencies to provide services "in the most integrated setting appropriate to the needs of qualified individuals with disabilities." But the victory had some strings attached.

The Olmstead decision, as it's known, ruled that "states are required to place persons with mental disabilities in community settings rather than in institutions when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities."

Note, however, the decision's wording: "treatment professionals" have to say it's OK, and dependent upon the "resources available to the state." Disability rights always seem to have a price tag tied onto them.

O'Connor "learned she had breast cancer early in the court's 1988 term and underwent a mastectomy and follow-up treatment. She never missed a day that the court was on the bench, and only years later did she reveal publicly, in a talk to other cancer survivors, how stressful the period had been," wrote the New York Times's Linda Greenhouse. O'Connor had also counseled colleague Justice Ruth Bader Ginsburg, when her colon cancer was diagnosed, "to have chemotherapy treatments on Friday so that she could be strong enough to come to work on Monday."

However it seems clear that O'Connor, like most people of her generation and background, considered cancer as a personal medical problem, certainly not a disability. And her lack of awareness -- or solidarity -- showed in her reasoning in the 2001 Garrett decision (Board of Trustees of The University of Alabama V. Patricia Garrett ).

When she was diagnosed with breast cancer, Patricia Garrett had been director of ob-gyn neonatal services for the University of Alabama, Birmingham, Hospital. She had a lumpectomy and underwent radiation and chemotherapy, but, hewing to her philosophy to not be "consumed by" one's disease, kept working. To get her to "take it easy" -- although she'd never expressed a desire to -- her boss forced on her a demotion and a $13,000 cut in salary. That was when she had sued the state university under the ADA.

O'Connor, along with the 7-2 majority, did not really seem to see what Patricia Garrett had faced as "discrimination."

The Garrett case, like the Tennessee v. Lane case three years later, was not really about the disability discrimination of one individual, but about the constitutionality of the law itself: Was the Americans with Disabilities Act a valid exercise of Congress's power under Section 5 of the Fourteenth Amendment? Did Congress have enough evidence that people with disabilities faced "pervasive" discrimination at the hands of state governments when they passed the ADA?

Chief Justice William Rehnquist said "no." Three other justices sided with him: Antonin Scalia, Anthony Kennedy and Clarence Thomas.

Another four justices said that yes, there certainly was and continues to be evidence of discrimination against people with disabilities pervasive enough to justify Congress passing the ADA: John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

The wild card was Justice Sandra Day O'Connor.

In Patricia Garrett's case, O'Connor ruled that no, Congress didn't really have enough evidence of discrimination to justify passing a law. Three years later, she'd change her mind when the Tennessee case came before the Court.

What O'Connor wrote in the Garrett decision, however, seemed revealing. In a kind of "states don't mean to discriminate" statement, O'Connor and Kennedy, who had ruled with the majority, nonetheless wrote in a separate opinion that "the failure of a State to revise policies now seen as incorrect under a new understanding of proper policy does not always constitute the purposeful and intentional action required to make out a violation of the Equal Protection Clause."

"If the States had been transgressing the Fourteenth Amendment by their mistreatment or lack of concern for those with impairments, one would have expected to find in decisions of the courts of the States and also the courts of the United States extensive litigation and discussion of the constitutional violations. ... That there is a new awareness, a new consciousness, a new commitment to better treatment of those disadvantaged by mental or physical impairments does not establish that an absence of state statutory correctives was a constitutional violation ... ."

O'Connor was always kind to the disabled:

"Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves. Quite apart from any historical documentation, knowledge of our own human instincts teaches that persons who find it difficult to perform routine functions by reason of some mental or physical impairment might at first seem unsettling to us, unless we are guided by the better angels of our nature."

According to O'Connor, the ADA was supposed to focus on "the wheelchair bound," not people with carpal tunnel syndrome or bad backs.

Three years later, in Tennessee v Lane, she would side with the argument put forth by the wheelchair-user George Lane, who had been unable to get into a Tennessee courthouse to appear in his own defense in a case.

Why did O'Connor change? The question before the court was similar to the one in Garrett. Courtwatchers agreed that the deciding factor in this case, however, was that, unlike in the Garrett case, this time there really was evidence of discrimination: "With respect to the particular services at issue in this case, Congress learned that many individuals, in many States across the country, were being excluded from courthouses and court proceedings by reason of their disabilities," wrote justice John Paul Stevens for the majority.

But O'Connor was the one who provded the "swing vote." And it is also in keeping with O'Connor's sensibilities that George Lane was "truly disabled" whereas Patricia Garrett, a breast cancer survivor like O'Connor herself, did not seem disabled.

O'Connor seemed the model of the "compassionate conservative." A few months after the Garrett ruling, she voted for golfer Casey Martin's right to use a golf cart on the PGA tour -- that was an Americans with Disabilities Act case as well.

Around the time that O'Connor wrote her first ADA opinion, Fordham Law School professor Matthew Diller observed that judges seem to regard the ADA a kind of special benefit for a special class of people Congress singled out -- "the disabled."

"Judges are actually viewing the ADA not as the Congressional civil rights mandate it is, but as another piece of benefits legislation to which only a few -- "the disabled" -- are entitled, said Diller, adding that there's no "social consensus" around what it means to be disabled, as there is around gender and race.

Sandra Day O'Connor believed in helping the "truly disabled." She was compassionate. But she didn't -- honestly didn't -- seem to understand the ADA's concept of disability discrimination. When listening to Ella Williams's attorney argue her case, O'Connor interrupted him, snapping that the ADA was supposed to focus on the "wheelchair bound," not "carpal tunnel syndrome or bad backs!" This was her interpretation, and nothing at all what Congress had intended, but it followed the thinking put out in 1995 by the conservative Cato Institute and adopted by a number of lower court judges in their anti-ADA rulings.

Said Burnett, "Her words should be a wake-up call to the disability community."

Posted July 3, 2005.

Mary Johnson edits Ragged Edge, and is author of the book Make Them Go Away: Clint Eastwood, Christopher Reeve & the Case Against Disability Rights.

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