Supremes Continue to Disable Disabled: Part One of Two
Listening to Elouise Cobell of the Blackfeet Nation on Democracy Now (April 29) describe how native Americans have been cheated out of their government-run trust fund income by the federal government it occurred to me that Native American people and disabled people share a common grievance when it comes to government enforcement of the law.
In 1996 Cobell launched a Blackfeet Nation class action lawsuit to account for all royalties due individual Native Americans since 1887. The lawsuit alleges that the government system has been plagued by problems for decades. Landowners have no way to determine how much money they are owed and whether they are receiving a good value for their leases. The government often fails to collect on leases or to send funds to the correct beneficiary. There has never been an accounting of the funds.
Laws are made by congress but other branches of government do not necessarily uphold the law. Legislation is enacted but government often does not adequately enforce it. Government conveniently ignores laws -- in some instances unintentionally and out of incompetence but in others government (in its many varied institutions) intentionally does not to abide by the law. Rather it evades it, bypasses it, weakens it, or makes it obsolete.
Instead of competent government regulation we have civil litigation. The process of civil litigation to enforce the Americans with Disabilities Act (ADA) has been an arduous one prone before a hostile Supreme Court.
As legal cases work their way to the Supreme Court, the court has seen fit to narrow the reach of the act on local government. A year ago, for instance, the Supremes ruled that state workers cannot use the civil rights law to win money damages for job discrimination. The court held that the disability rights law does not trump states' constitutional immunity against being sued for damages in federal courts (Garrett v. Alabama).
Over ten years after passage of the ADA, Jeffrey Gorman, a paraplegic who lives in Missouri, was badly injured while being taken to jail for trespassing at a country-western bar because the Kansas City police department had not complied with ADA regulations.
Gorman, who uses a wheelchair, warned officers that they did not have an accessible van to transport him safely to jail. According to Gorman's lawyer, the officers ignored Gorman, removed him from his wheelchair, propped him on a bench, and tied him to the vehicle's wall with his own belt. During the trip to the jail, Gorman fell and injured his shoulder and back. He had surgery due to the injury. None of these facts are contested.
Just think of it like this. If a nondisabled person could not be transported to jail because there were no seats for him/her in a patrol car, and the police strapped him to the top of their squad car using the belts from his clothing and the person fell off the car and injured themselves to the extent that he required surgery, would a jury punish that police department with a huge monetary award? You bet it would. It would seek punishment to avoid having the same egregious act reoccur.
Would the lawyers for the city come around and try to undo that award? Unlikely city politicians would risk public outcry.
In Gorman's case the jury did award him compensatory and punitive damages. Kansas City did not contest the compensatory damages but appealed the punitive damages, taking the case to the 8th District Court. It agreed with Gorman that punitive damages were in order but noted that the 6th District Court had ruled differently in a similar case, an unfortunate signal that the Supreme Court, so hostile to disability rights, would settle the question. Gorman hoped that the Supreme Court would rule "they [Kansas City] are not above the law even though they're the government ." (Quote from The Associated Press)
Local government wanted protection from lawsuits when they broke the law.
Going so low the Kansas City defense even asserted at the jury trial that since Gorman was mobile with the use of corrective device, the wheelchair, he was not disabled under the ADA (Federal Rights Project). Some disabled persons have been dismissed as illegitimate ADA plaintiffs because their disabilities can be mitigated by drugs, devices, what have you. It is a bit nauseating to know that lawyers for Kansas City used the argument that Gorman was not technically disabled and had no right to sue under the ADA because his wheelchair mitigated his disablement.
The Supremes agreed with Kansas City and threw out the punitive damages holding that such damages are unavailable in private suits brought under the ADA and the Rehabilitation Act.
When Congress passed the ADA, it did not specify that people could collect punitive damages for violations but since the ADA was fashioned like the Civil Rights Act of 1964, there was congressional understanding of the availability of punitive damages under Title VI. Lawyers for the local government in Kansas City and the Bush administration, however, argued that Congress never intended for cities to face large jury judgments.
Justice Scalia, writing for the court, said that adding punitive damages in ADA cases "could well be disastrous." He said recipients of federal funds probably would not agree "to exposure to such unorthodox and indeterminate liability."
If government adhered to the law and followed the regulations there would be no such cases.
The corporatist court applied contract-law analogy in throwing out the punitive damages. It held that a "a remedy is appropriate relief only if the recipient is on notice that, by accepting federal funding, it exposes itself to such liability." The court reasoned that "since Title VI mentions no remedies; and punitive damages are generally not available for breach of contract," no damages are available under the ADA of the Rehabilitation Act.
There are still punitive damages available to women and minorities under Title VI. How broadly will this court extend its ruling?
We in the disability community know from years of repeated problems at all levels of government that the Gorman case is not an isolated incident. The ADA was passed in 1990 yet over a decade later many local and state governments are not in compliance with its regulations.
The significance of Barnes v. Gorman is broader than a disabled man being wrongly transported to jail. Local government is responsible for many public services, transportation, health and welfare, jails, the local courts, to name but a few. If disabled persons are denied the right to seek punitive damages when governments violate the law, there will be little incentive for governments to get their act together and make programs and systems accessible.
Still the larger issue is that of societal exclusion - and the social relations which erect exclusion. Disability is a social experience which arises from the specific ways in which society organizes its fundamental activities. Work, transportation, leisure, education, domestic life disable persons when they are not accessible. We are "disabled" or not by the way a society is organized.
With civil rights laws in place disabled citizens are still treated like second or third class citizens -- still shut out from full participation in the affairs and life of our communities.
The Supreme Court has the power of judicial interpretation to decide the intent and scope of laws as they are applied in society in specific situations. So far the Supreme Court, the final arbiter of law, has seen fit to continue to disable us.
Part Two will explore the employment related decisions of the 2001-2002 court term. Marta Russell can be reached at email@example.com www.disweb.org