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Plaintiffs thwarted from suing state governments under the Americans With Disabilities Act (ADA) may have discovered a chink in the states’ armor, thanks to the 11th U.S. Circuit Court of Appeals. The ruling occurred in the cases of a breast cancer survivor and an asthma sufferer who, two years ago, lost a landmark disability rights case at the U.S. Supreme Court. Now they have found a new way to get their claims heard. A three-judge 11th Circuit panel last week revived the suits in which Patricia Garrett and Milton Ash allege that Alabama state agencies discriminated against them because they were disabled. The panel-Chief Judge J.L. Edmondson, Judge Edward E. Carnes and visiting U.S. District Judge Richard W. Story of the Northern District of Georgia-rejected Alabama’s arguments that had carried the day at the Supreme Court in 2001. Garrett claims that she was demoted from her job at the University of Alabama at Birmingham hospital because she was undergoing treatment for breast cancer. Ash, who suffers from asthma, claims that the state department of youth services failed to enforce its no-smoking policy. The pair had sued under the ADA, but the high court in 2001 ruled, 5-4, that Congress did not have the constitutional authority to subject state governments to ADA suits. The case, Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, drew a great deal of attention. A bipartisan group of lawmakers, plus former President George H.W. Bush, who, in 1990 signed the ADA, urged the Supreme Court to uphold the plaintiffs’ right to sue state agencies under the law. High court steps in But the Supreme Court majority, following recent precedents finding limits on congressional power, held that the 11th Amendment gave states immunity from this type of ADA suit. After more than two years of review in lower courts, the 11th Circuit panel ruled that the sovereign immunity that had protected Alabama from the ADA did not apply to a more obscure law, the Rehabilitation Act of 1973. Along with claiming ADA violations, Garrett, Ash and a third plaintiff, Joseph Stephenson, also brought their suits under the Rehabilitation Act, which prohibits agencies that receive federal funds from excluding handicapped people from participating in the agencies’ programs. Edmondson, Carnes and Story issued a relatively simple, 11-page, unsigned decision. They pointed out that Congress passed a law stating specifically that state agencies that accept federal funds were not entitled to 11th Amendment immunity from violations of the Rehabilitation Act. The same rule applies to the laws popularly known as Title IX of the Educational Amendments of 1972, which prohibits sex discrimination in federally funded schools; Title VI of the 1964 Civil Rights Act, which prohibits race discrimination; and the Age Discrimination Act of 1975, according to the 11th Circuit decision, Garrett v. Univ. of Alabama at Birmingham Bd. of Trustees, No. 02-16078 (11th Cir. Sept. 11, 2003).

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