Americans with Disabilities Act, etc.

[Guest guest]

Disability Organizatons to Announce Opposition to Judge Alito

ADA Watch/National Coalition for Disability Rights, Alliance of Disability

Advocates, Bazelon Center for Mental Health Law, Disability Rights Education

and Defense Fund, National Council on Independent Living, World Association

of People with Disabilities, and others

Alito’s Record on Disability Issues

Alito, President Bush’s nominee to replace Justice O’Connor on the

Supreme Court, presents grave concerns for people with disabilities. Having

sat on the Third Circuit Court of Appeals for 15 years, Judge Alito has a

record of decisions that make very clear the threat he poses to disability

rights.

I. Judge Alito Would Restrict Congress’ Power to Enact Disability Rights

Laws

Perhaps the most troubling aspect of Judge Alito’s record is his narrow

interpretation of the powers that authorize Congress to pass civil rights

laws, including the Americans with Disabilities Act (ADA), Section 504 of

the Rehabilitation Act, the Fair Housing Amendments Act, the Family and

Medical Leave Act (FMLA) and other laws of importance to people with

disabilities. His rulings demonstrate cramped views of Congress’s powers

that would put critical disability rights laws at risk.

Justice Day O’Connor, whose seat on the court Alito is nominated to

fill, was frequently the pivotal vote in cases about Congress’ power to pass

the ADA, the FMLA and other important laws. If Judge Alito is confirmed,

there is every reason to expect that many important decisions about federal

power would come out differently—against people with disabilities. His

record suggests he would become the critical fifth vote to strike down

portions of these laws as unconstitutional.

Restricting Congress’ Fourteenth Amendment Power

Judge Alito has demonstrated a narrow view of Congress’ power to pass civil

rights laws to enforce the Fourteenth Amendment’s guarantees of equal

protection, due process of law, and other critical rights.

He ruled that Congress did not have the power under the Fourteenth Amendment

to enact the FMLA’s guarantee of up to 12 weeks of unpaid leave for personal

illness.1

In a similar case involving the FMLA’s guarantee of unpaid leave to care for

a sick family member, the Supreme Court upheld Congress’ power to enact this

provision.2 Judge Alito gave Congress significantly less leeway than the

Supreme Court did. A majority of the Supreme Court, including Justice

O’Connor, held that the FMLA’s entitlement to a certain amount of leave

time, applied equally to men and women, was an appropriate response to a

history of gender discrimination in leave policies. Judge Alito, on the

other hand, stated that the FMLA was not an appropriate response to gender

discrimination because its entitlement to leave time “does much more than

require nondiscriminatory sick leave practices.” 3

Restricting Congress’ Commerce Power

Judge Alito’s decisions also demonstrate a very narrow reading of Congress’

power to legislate under the Interstate Commerce Clause. Congress used this

power, together with its Fourteenth Amendment power, to pass the ADA.

In a case where the Third Circuit ruled that Congress had the power to ban

the possession of machine guns, Judge Alito dissented. He stated that, in

banning machine guns, Congress went beyond its power to regulate interstate

commerce. 4

Judge Alito’s dissent is based on an extremely restrictive view of

Congress’s power to regulate interstate commerce. He argued that Congress

could not ban the possession of machine guns if the guns were not being

taken across state lines. A majority of the court concluded that the ban on

machine gun possession was a necessary part of a larger regulatory scheme,

and that the possession of machine guns had a substantial effect on

interstate commerce. Judge Alito complained, however, that the majority’s

theory was so broad that it would convert Congress’ commerce power into “a

plenary police power.” 5

The arguments rejected by Judge Alito were precisely the arguments relied on

by the Supreme Court recently in upholding Congress’ authority to regulate

possession and cultivation of marijuana within states.6 . The Supreme Court

held that Congress could regulate marijuana even if it did not cross state

lines and was not bought or sold but simply grown for personal use. The

Court recognized that the regulation of marijuana even within states was an

essential part of a larger regulatory scheme, and that Congress could

regulate purely local activities as long as they were part of a larger class

of activities that substantially affected interstate commerce. 7

Thus Judge Alito has taken a much more restrictive view of Congress’ powers

to legislate under both the Fourteenth Amendment and the Commerce Clause

than the Supreme Court has. His views create cause for grave concern about

the future of the ADA and other disability rights laws. Democrats and

Republicans alike have expressed concerns about recent constitutional

challenges to the ADA and the Supreme Court’s role in determining those

issues. It is critical that the new Supreme Court Justice be someone who

will respect Congress’ authority to enact needed protections for people with

disabilities.

II. Community Integration

Judge Alito voted to rehear one of the most significant victories for people

with disabilities in the Third Circuit —a decision requiring Pennsylvania to

stop unnecessarily institutionalizing individuals with disabilities who were

capable of living in the community and to provide them with appropriate

community-based services. This decision, Helen L. v. DiDario8, interpreted

the ADA’s “integration mandate” to ban unnecessary institutionalization even

before the Supreme Court interpreted it similarly in Olmstead v. L.C. 9 .

Pennsylvania had argued that unnecessarily institutionalizing individuals

with disabilities was not discrimination.

After Pennsylvania lost, it asked the full court to rehear the Helen L.

case. It argued again that unnecessary institutionalization was not

discrimination. Judge Alito was one of the judges who voted to rehear the

case. However, there were not enough votes to rehear and the ruling was

allowed to stand.

While we cannot know exactly what Judge Alito’s reasoning was, his vote to

vacate and rehear one of the most important victories for people with

disabilities does not bode well.

III. Restricting Enforcement of Rights

Judge Alito’s rulings indicate a troubling pattern with respect to the

ability to enforce critical rights for people with disabilities.

Restricting Medicaid Enforcement?

Judge Alito filed a concurrence in Sabree v. Houstoun,10 suggesting that

future Medicaid recipients may be unable to enforce the rights that Congress

gave them. Recipients had challenged Pennsylvania’s failure to provide

community-based intermediate care facilities for individuals with mental

retardation in accordance with its obligations under the Medicaid program.

The trial court dismissed the case, ruling that Medicaid recipients had no

right to enforce the requirements in the Medicaid Act that covered services

must be provided promptly.

The Third Circuit reversed, finding that Medicaid recipients could go to

court to enforce their right to receive covered services. Judge Alito

concurred because the decision was supported by “currently binding

precedent.” He noted, however, that “the analysis and direction of the

District Court may reflect the direction that future Supreme Court cases in

this area will take . . . .”11

Judge Alito’s contention that the Supreme Court may head in the direction of

the trial court’s decision —despite Supreme Court precedent that clearly

supported individual enforcement of the Medicaid rights at issue— suggests

that Judge Alito has some discomfort with current Supreme Court precedent.

The trial court’s decision holding that Medicaid recipients could not

enforce any Medicaid rights was one of the most sweeping decisions

concerning Medicaid enforcement. Judge Alito’s belief that the Supreme Court

may ultimately follow the path of this decision raises serious concerns.

HUD Cannot be Required to Enforce its Own Accessibility Regulations

Judge Alito joined an opinion concluding that a federal agency could not be

sued for failing to enforce its own regulations concerning accessible

housing for people with disabilities. In ADAPT v. United States Dep’t of

Housing & Urban Development,12 the plaintiffs alleged that HUD had not

fulfilled its duty to ensure that multi-family housing was accessible and

adaptable to people with disabilities, and that HUD failed to investigate

complaints of inaccessible housing and take enforcement action where

federally funded housing did not meet HUD’s accessibility rules. The

plaintiffs noted that HUD officials had acknowledged widespread compliance

problems, but refused to respond adequately. The Third Circuit affirmed the

dismissal of the plaintiffs’ claims, holding that despite HUD’s failure to

follow the clear guidelines in its own regulations, there was not adequate

law for the court to apply to determine whether HUD violated the law.13

Ironically, the Third Circuit later ruled that individuals could not sue a

housing authority for failure to comply with HUD regulations concerning

accessible housing.14 Judge Alito was not involved in that case, but his

decision in the ADAPT case has contributed to the catch-22 that faces people

with disabilities in his jurisdiction who need accessible housing: They

cannot go to court to require HUD to enforce compliance with its accessible

housing regulations, nor can they go to court to bring their own action to

enforce these regulations.

IV. Other Areas of Concern

Judge Alito has issued a number of other rulings that raise serious concerns

for people with disabilities.

Flagging test scores permitted where individuals received testing

accommodations: Judge Alito joined a decision vacating an injunction that

stopped the National Board of Medical Examiners from flagging the test

scores of individuals who received accommodations on their medical licensing

exams due to their disabilities.The plaintiff had received accommodations

due to his multiple sclerosis and claimed that the medical board’s practice

of flagging accommodated test scores that it felt might not be comparable to

other test scores subjected him to possible discrimination by internship and

residency programs. These programs frequently consider candidates’ licensing

exam test scores. The trial court ruled that the medical board had not shown

that it was necessary to flag scores.

The Third Circuit reversed, holding that the ADA’s provisions requiring

accessible testing and licensing exams did not specifically forbid the

flagging of accommodated test scores. The court refused to read the general

nondiscrimination provision of Title III to forbid flagging. This decision,

which was joined by Judge Alito, reflects an unduly narrow reading of the

ADA’s bar on discrimination. Congress meant the ADA to cover a broad range

of circumstances, and did not spell out each specific practice that might be

prohibited by the law. The Doe v. National Board of Medical Examiners

decision would have serious consequences for people with disabilities who

experience the many types of discrimination that are not explicitly spelled

out in the ADA.

Woman fired immediately upon return from three weeks of hospitalization for

depression and sleep disorder not covered by the ADA or FMLA: Judge Alito

joined an extremely troubling opinion affirming the dismissal of an

employee’s ADA and FMLA claims challenging her firing.15 Yvette Katekovich

was hospitalized for approximately three weeks due to depression and a sleep

disorder. Her employer was informed of the reason for her hospitalization.

When she notified her supervisor that she had been cleared to return to work

and would return that day, however, the supervisor told her that she was

fired. The Third Circuit affirmed summary judgment for the employer on the

ground that Katekovich was not a person with a disability protected by the

ADA. The court did not consider whether she was regarded by the employer as

having a disability.16

The court also ruled against Katekovich on her FMLA claim. The FMLA provides

that an employer may not fire an employee because she has taken leave

permitted by the FMLA. Here, the court ruled inexplicably that, because the

employer had failed to designate Katekovich’s leave as FMLA leave, it did

not fire her because of FMLA leave.17 In addition, the court ruled that

Katekovich did not present sufficient evidence to show that she was able to

return to work. The FMLA, however, puts the burden of proof on the employer

to show that the employee was unable to return to work.

Zoning board not required to engage in an interactive process to accommodate

developer seeking zoning approval for a facility for seniors: Judge Alito

joined an opinion affirming summary judgment against a real estate developer

who sought to develop a 95-bed assisted living facility for seniors.18 Among

other things, the court held that the Fair Housing Amendments Act (FHAA) did

not require the zoning board to engage in an interactive process with

applicants requesting variances or site plan approvals as reasonable

accommodations to provide equal access for people with disabilities. It

concluded that an interactive process for requesting accommodations applies

only in the context of the workplace, and not in the context of housing and

land use.19 This decision means that only in the context of employment must

affirmative efforts be made to identify possible reasonable accommodations

for a person with a disability.

Eliminating protection for most discrimination based on HIV or AIDS: While

he was an assistant attorney general in the Justice Department, Alito helped

author a departmental legal opinion arguing for severe limitations on

Section 504's protection from discrimination based on HIV, AIDS, and AIDS

related conditions. The opinion stated that Section 504 allows

discrimination based on a person’s AIDS or HIV if the discrimination is

based on fear of contagion – even unreasonable fear.

This argument, had it prevailed in the courts, would have eliminated

virtually all protection against discrimination based on AIDS or HIV status.

Most discrimination against people with HIV or AIDS is based on fear of

transmission of the disease. Section 504 would provide no protection

against such discrimination if Alito’s view had become law.

The Supreme Court has twice rejected Alito’s arguments. See School Board of

Nassau County v. Arline 20 (discrimination based on a disease’s contagion

was the same as discrimination based on the disease itself) and Bragdon v.

Abbott 21 (person with asymptomatic HIV was protected by the ADA because she

was substantially limited in reproduction due to the possibility of

transmitting the disease to a fetus).

No protection for worker with developmental disabilities who was brutally

assaulted physically and sexually: In Pirolli v. World Flavors, Alito

dissented from an opinion reinstating claims brought by an employee with

developmental disabilities who was subjected to repeated cruel assaults.

The man’s coworkers forcibly sodomized him with a broom, stuffed him into a

garbage can, beat him, and made humiliating comments about his mental

disability. The trial court dismissed the man’s claims, ruling that he had

not proved anything beyond “macho horseplay and adolescent roughhousing in a

context where such behavior was the common and accepted mode of social

interaction 22. The Third Circuit reversed, finding that the treatment

Pirolli experienced was “severe and pervasive enough to create an abusive

work environment.”

Judge Alito dissented. He explained that he would have upheld the trial

court’s decision in its entirety because Pirolli did not use the proper

language in his brief – he did not state “that his work environment was one

that a reasonable non-retarded person would find hostile or abusive.”

Membership in an organization protesting equal rights for women, minorities

and people with disabilities: Judge Alito was a member of Concerned Alumni

of Princeton (CAP), an alumni group that was widely known for its opposition

to the admission of women and minorities as students at Princeton. The

group also expressed blatant hostility toward people with disabilities. A

1983 essay in CAP’s magazine, Prospect, titled “In Defense of Elitism,”

complained that “People nowadays just don’t seem to know their place.” The

article stated that “[e]verywhere one turns blacks and hispanics are

demanding jobs simply because they’re black and hispanic” and “the

physically handicapped are trying to gain equal representation in

professional sports.” Alito highlighted his membership in CAP when he

applied for a job with the Reagan Administration in 1985.

IV. Conclusion

Judge Alito’s nomination raises serious concerns for people with

disabilities. We emphasize that decisions described here are merely

highlights from Judge Alito’s long record, which includes a number of

positive decisions, as well as additional negative decisions, for people

with disabilities. The decisions described here are among the most

important, and most troubling on disability issues. This record strongly

suggests that confirming Judge Alito to the Supreme Court seat being vacated

by Justice O’Connor will result in numerous restrictions on the rights that

individuals with disabilities have fought so hard to obtain.

1. Chittister v. Department of Community & Economic Development, 226 F.3d

223 (3d Cir. 2000).

2. Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003).

3. Chittester, 226 F.3d at 229.

4. United States v. Rybar, 103 F.3d 273, 286-94 (Alito, J., dissenting).

5. 103 F.3d at 291.

6. v. Raich, 125 S.Ct. 2195 (2005).

7. Id. at 2205, 2211.

8. 46 F.3d 325 (3d Cir. 1995).

9. 527 U.S. 581 (1999). In Olmstead, the Supreme Court gave states a broader

defense to integration claims than the Third Circuit had in Helen L.

10. 367 F.3d 180 (3d Cir. 2003).

11. Id. at 194 (Alito, J., concurring).

12. 170 F.3d 381 (3d Cir. 1999).

13. Id. at 384-89.

14. Three Rivers Center for Independent Living v. Housing Authority of

Pittsburgh, 382 F.3d 412 (3d Cir. 2004).

15. Katekovich v. Team Rent A Car of Pittsburgh, Inc., 36 Fed. Appx. 688 (3d

Cir. 2002).

16. Id. at 690.

17. Id. at 691.

18. Lapid Laurel, L.L.C. v. Zoning Board of Adjustment of Scotch Plains, 284

F.3d 442 (3d Cir. 2002).

19. Id. at 455.

20.481 U.S. 1024 (1987).

21. 524 U.S. 624 (1998).

22. 1999 WL 1065214 (E.D. Pa. Nov. 23, 1999).