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For those who have followed the U.S. Supreme Court’s decade-long trend toward reviving federalism, its decision early this year in Board of Trustees of the University of Alabama v. Garrett was not much of a surprise. Yet, for many in the disability rights community, Garrett seemed like a stunning setback. It need not be. Garrett presented the question of whether the Americans With Disabilities Act, the far-ranging 1990 federal legislation, overcame the states’ Eleventh Amendment immunity. Under the Eleventh Amendment, individuals cannot bring federal lawsuits against the states for damages. Congress included language in the ADA to the effect that the states would not have Eleventh Amendment immunity. The Supreme Court held that Congress did not have that power. While Garrett itself only addressed the part of the ADA that prohibits employment discrimination, the statute’s other provisions — including the ones dealing with access to public services, buildings, and transportation — would seem to be in peril (although the Court has since turned down a chance to consider those provisions). Although all of this seems devastating, it is far from that. The Supreme Court has, in the last 10 years, increasingly trimmed congressional power to control what the states do. Garrett is not a signal that the majority of the Court bears ill will toward those with disabilities; it is instead part of a consistent pattern that has seen the Court strike down laws that it concluded had unconstitutionally tilted the balance between federal and state power. Garrett hardly means the end of the lofty ideas encompassed in the ADA. It is simply time to turn to Plan B. Plan B calls for recognizing what Garrett means — and what it doesn’t mean — and for redirecting advocacy efforts to strike a balance between the Supreme Court’s federalism concerns and the critically important aims of the ADA. When the first President George Bush signed the ADA into law on a sunny July day in 1990, the White House lawn was crowded with people both well known and unknown, all of whom shared a common goal to make our society as accessible as it could be to persons with disabilities. The energy of that crowd — and that of millions more across the nation — has not dissipated. It is time to use it again. We should remember that, on its face, Garrett affects only the ability of individuals to seek damage awards for discrimination. There remains an argument that the Eleventh Amendment, which formed the basis for the decision in Garrett, does not prevent individuals from seeking court orders directing state officials to correct unlawful conduct (in other words, injunctions rather than damages). The Eleventh Amendment does not prohibit the federal government from enforcing the ADA. Although both the Department of Justice and the Equal Employment Opportunity Commission have taken steps to enforce the ADA in the 11 years since its enactment, the Garrett ruling’s limitation of private lawsuits means we should ask our federal government to do more. In fact, both the EEOC and the Department of Justice allow private individuals to file claims of discrimination with them, both for administrative assessments and, sometimes, to sue on behalf of victims in federal court. It is important to remember that Garrett affects only one aspect of the ADA. The Eleventh Amendment only bars suits against the states themselves. Private employers and local governments remain fully bound by the requirements of the ADA, and individuals still have the right to sue those employers for damages. Every state has some sort of law barring discrimination against persons with disabilities. Many of those laws don’t reach as far as the ADA, but some (like Ohio’s) are actually more comprehensive. Most of those state laws allow individuals to sue the state government and state agencies. Garrett does not affect those laws. Disability rights advocates should contact their state legislators and push them to introduce bills amending — and strengthening — state laws that prohibit discrimination against those with disabilities. If federal enforcement of the ADA and renewed attention to state laws against discrimination don’t overcome the gap created by Garrett, Congress has another choice. The Supreme Court has explained that the states’ Eleventh Amendment immunity can be overcome in several ways. The ADA tried to jump that hurdle through what’s called “abrogation.” In other words, Congress simply said that it intended that the states would not be protected from ADA suits by the Eleventh Amendment. The Supreme Court held in 1997 that only federal laws enacted to enforce the Fourteenth Amendment could abrogate immunity from suit. The problem with abrogation under the ADA is that the Supreme Court held that Congress just didn’t have the constitutional power to do it in the ADA because the ADA doesn’t directly enforce the Fourteenth Amendment. (The Court has recently said the same thing about the federal Age Discrimination in Employment Act, the federal Religious Freedom Restoration Act, the federal Violence Against Women Act, and other laws.) If Congress doesn’t have the right to unilaterally lift the Eleventh Amendment shield, it can achieve the same goal another way. The states can themselves waive their Eleventh Amendment immunity. Why would they want to do that? It can be a simple matter of economics. The states receive a great deal of money from the federal government, and that money can come with strings attached. So, for example, in the 1980s, Congress “convinced” the states to raise their drinking ages to 21 by withholding 5 percent of federal highway funding from any state that did not. In 1987 the Supreme Court approved. It held that such “purse-string incentives” are acceptable if the congressional enactment is in pursuit of the general welfare, if the federal statute “unambiguously” conditions receipt of the federal money on the states’ agreement to abide by federal standards so that the states can knowingly weigh the benefits and decide if they want to be part of the bargain, and if the federal law doesn’t violate some constitutional provision (which is not the case here since states’ compliance is voluntary). In fact, Congress has already used its spending power to enhance the rights of those with disabilities. Section 504 of the Rehabilitation Act of 1973 bars any program or activity that receives federal funding from discriminating against any “qualified individual with a disability.” Another statute ties receipt of that federal money to the states’ agreement to waive their Eleventh Amendment immunity. Several courts — including just three months ago the full 8th U.S. Circuit Court of Appeals — have held that states that accept federal funding have effectively agreed to waive their immunity from suit for alleged discrimination in those programs that receive the federal dollars. Using the spending power to avoid Eleventh Amendment immunity is far from certain to succeed. There are, however, ways to maximize the likelihood that the courts would approve such an attempt. First, Congress should amend the Rehabilitation Act, the ADA’s forerunner, to make it unmistakably clear in the text of that law that states must waive their immunity. Although some courts have held that the existing language is clear enough, added emphasis in the language of the statute cannot hurt, and it would likely help. The states must know the terms of the bargain. Second, Congress should amend the Rehabilitation Act to explain exactly which federal grants are tied to compliance. For example, the statute could explicitly require the states to waive Eleventh Amendment immunity for suits related to employment discrimination or face losing grants from the U.S. Department of Labor. The courts have required such specifics. Third, Congress should amend the Rehabilitation Act so that it includes many of the same requirements as the ADA. Now, the relevant provision of the Rehabilitation Act is remarkably short. Those are just a few ideas for responding to Garrett not with panic but with vigor, not with anger but with energy, not with despair but with resolve. Garrett is the law now, but it is hardly the end of the story. Persons with disabilities, and their families, friends, colleagues, and supporters, must turn their attention and their efforts to the next chapter and ensure that, through whatever means are necessary, the promises of the ADA — accessibility, inclusion, and opportunity — continue to be met. Dick Thornburgh served as governor of Pennsylvania from 1979 to 1987 and as attorney general of the United States between 1988 and 1991. Thornburgh is now of counsel with Kirkpatrick & Lockhart. David R. Fine is a senior associate with Kirkpatrick & Lockhart. Both Thornburgh and Fine have sons who live with disabilities.

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