As we reported last issue, the Supreme Court issued a ruling in Garrett v Alabama in February. It has taken some time to sort out what the ruling means, but better late than never.

The Court's 5-4 majority ruled that Congress had exceeded its Constitutional authority in letting citizens sue states for money damages for job discrimination under Title I (Employment) of the ADA. We've covered this case in detail in our last three issues and don't want to repeat too much here. Suffice it to say that this decision only applies to employment discrimination by state governments (not private employers or other governmental bodies), and that it only applies to collection of money damages. A person with a disability can still sue a state government for employment discrimination under ADA's Title I, win the case, and obtain "injunctive relief"--a court order to the state to stop discriminating against this and any other employees and, if anyone was fired, to reinstate them.

Some analysts think the Court may apply the same logic to Title II, which prohibits discrimination by state and local governments in the provision of goods and services to people with disabilities, with the result that only money damages will be disallowed. Perhaps. But the Garrett decision's language could be signalling something much worse.

It's not clear why the Court limited its decision to the money damages issue this time; the State of Alabama also challenged Title II, and the Court originally agreed to address that as well, but in the final ruling it reversed the decision to grant "certiori"--a hearing--on that issue as "improvident". There was speculation that this was the result of a deal made with Justice O'Connor in return for her support of what became the majority opinion (see below). In any case, while declining to formally rule on Title II at this time, the majority laid out a frightening analysis of the constitutionality of any federal law, not just the ADA, that regulates state conduct concerning people with disabilities. That analysis goes far beyond whether the 14th. Amendment can be used to let people sue for money damages.

The Court has long held a concept of "suspect classes"--groups of people who are so likely to incur unfair discrimination that different and beneficial standards should be applied to them. Regardless of what Congress does, the Court makes its own decisions about who deserves to be in a suspect class, because it believes Congress should have more freedom to use the 14th. Amendment to regulate state governments when a suspect class is involved. It considers black people to be a suspect class, but has resisted applying that concept to other groups, such as elderly people. In Garrett the majority said that when dealing with people who are not in a suspect class, state governments only have to behave "rationally". For example, a state government might "rationally" refuse to accommodate employees with disabilities simply because it may cost a little more. Further, the Court said states don't have to prove that what they do is rational; challengers of a state's action must prove it isn't. And lastly, the Court said that it, not Congress, has the final, unchallengeable authority to decide who really needs protection from discrimination by state governments and who doesn't.

A previous ruling that the Court cited as precedent for rejecting Garrett's suit had worked to the (at least commonly-perceived) benefit of people with disabilities. In Cleburne v Cleburne Living Center, Inc., the court ruled that people with disabilities are not a suspect class and that "Mere [unsubstantiated] negative attitudes, or fear" did not create a rational basis for restricting the development of group homes. Therefore, the City of Cleburne could not require special permits for group homes for people with disabilities when it didn't require such permits for similar places like dormitories, multi-family dwellings and nursing homes.

In Garrett, Justice Breyer's dissent argued that the majority view would let states discriminate against disabled employees out of fear or negative attitudes like those in Cleburne. Yes, said Chief Justice Rehnquist, it works both ways: if unrealistic fears or attitudes are not a good enough reason for discrimination, then even if it can be shown that state officials held them, they are not a good enough reason to claim illegal discrimination if there is also a "rational" basis for the state's action. Then, by saying that states need not provide any explanation for a discriminatory act at the time it is committed, and placing the burden of proof on the challenger, it gave states a green light to come up with a "rational basis defense" after the fact even if the discrimination really was based solely on fear or negative attitudes. And finally, incredibly, the majority proclaimed that the 14th. Amendment's entire Equal Protection clause--not just the part relevant to overriding the Eleventh Amendment's prohibition on suits for money damages--simply can't be violated by a state as long as what it does to people with disabilities is "rational".

So while Garrett is clearly only about suits against states for money damages, it may signal the outcomes of future cases about whether Congress can tell states how to deal with people with disabilities, not only for the ADA but other federal laws. The Court's sweeping pronouncements about suspect classes and the Equal Protection clause imply that this Court will never uphold any attempt by Congress to regulate the states in this area, and it's only a matter of time before sharp state Attorneys General bring enough cases to get Title II completely dismantled.

There was speculation that to get Justice Sandra Day-O'Connor's consent to the ruling, the Court agreed not to take on Title II right then. However, a few days after it issued the Garrett decision, the Court announced that it would refuse to hear a Title II challenge concerning a prisoner with a visual disability who claimed that an Illinois state prison did not properly accommodate his needs. The Appeals court had ruled against him on the grounds that Congress had not justified its abrogation of the 11th. Amendment in the ADA, and the Supreme Court declined to hear his appeal--which means that in Illinois and surrounding states, Title II is already unconstitutional.

(The Casey Martin case, however, suggests that the Court's attitude simply reflects its ongoing activist States' Rights agenda. Martin, a pro golfer with a disability, sued under ADA's Title III Public Accommodations section to be allowed to use a golf cart in PGA tournaments, where golfers usually must walk. The Court recently ruled 7-2 in favor of Martin, finding that use of a cart would not "fundamentally alter" the game.)

We may soon know if the Court will apply its views to other federal laws. Arkansas has asked for review of a case called Arkansas Dept. of Education v Jim C., concerning whether Congress exceeded its authority to regulate state governments in passing Section 504 of the Rehabilitation Act, which forbids any entity that gets federal money to discriminate due to disability. The Court will decide whether to hear this case some time in June.