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Plaintiffs thwarted from suing state governments under the Americans with Disabilities Act may have discovered a chink in the states’ armor, thanks to the 11th U.S. Circuit Court of Appeals. The ruling comes 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 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 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 University 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 bill enacting the ADA, urged the Supreme Court to uphold the plaintiffs’ right to sue state agencies under the law. 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. But 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 had 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 appeared to have little trouble coming to a decision, issuing 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, which prohibits sex discrimination in federally funded schools; Title VI, which prohibits race discrimination; and the Age Discrimination Act of 1975, according to the 11th Circuit decision, Garrett v. University of Alabama at Birmingham Board of Trustees, No. 02-16078 (11th Cir. Sept. 11, 2003). “This is a very big decision,” said Deborah A. Mattison, the Birmingham lawyer who represents Garrett and Ash. Mattison added that the case could return to the Supreme Court, depending on whether Alabama appeals and what happens in a similar dispute that is pending before the full 5th Circuit. That case is Pace v. Bogalusa City School Board, No. 01-31026. Further raising the possibility of high court intervention, the 11th Circuit decision appears to conflict with the 2nd Circuit, which in 2001 concluded that New York had not knowingly waived its immunity from suit under the Rehabilitation Act. That case is Garcia v. S.U.N.Y Health Sciences Center, 280 F.3d 98. A spokeswoman for Alabama Attorney General William H. Pryor Jr., whose nomination to the 11th Circuit has drawn opposition in part because of his strong belief in states’ sovereign immunity, said no decision had been made on whether to appeal the 11th Circuit ruling. Mattison noted, in fairness, that the state has not had much chance to defend the specific charges of discrimination by its agencies because — despite the suits having been filed in 1997 — the questions over immunity have precluded any significant exploration of the facts. Observers sounded intrigued by Garrett and Ash’s victory by applying Congress’ power to influence state governments through its control of federal money. “The way to the future is the Spending Clause” of the U.S. Constitution, said Chad A. Readler, an associate at Jones Day who helped represent Alabama at the Supreme Court in the 2001 Garrett case. Readler added, however, that “there’s a pretty good argument” that states did not accept federal funds clearly knowing that doing so would waive their immunity from the Rehabilitation Act. Andrew J. Imparato, president of the American Association of People with Disabilities, noted that recent high court decisions have found limits in Congress’ power over the states even when lawmakers were regulating interstate commerce or enforcing equal protection rights — both activities which are authorized specifically in the Constitution. “The Supreme Court hasn’t ruled yet on the limits of the Spending Clause,” said Imparato.

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