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Inside Help Teens With Disabilities Achieve Independence — p. 3
Volume 12, Number 3
Directory Of Organizations — Page 8
SOURCES
March 10, 2001
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“Divide and conquer, in our world, must become define and — Audre Lorde empower.”
RESOURCES
March 10, 2001
SUPREME COURT LIMITS ADA NO SUITS AGAINST STATES IN FEDERAL COURT FOR MONETARY DAMAGES by Kathleen R. Hagen
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On a street in Gdansk
Organizing In Poland The Fuga Mundi Foundation by Amy Farrar Last month Access Press talked about the state of disability rights in Poland. In this month’s Part 2 we look at a specific example of efforts underway in that country. “Fuga Mundi” is a Latin term for “Escape From the World.” Ancient philosophers coined the term thousands of years ago to describe when people went off to contemplate who they were in the grand scheme of things. That is why the term has been reanimated as the name of an organization in Poland that is educating people about the issues faced by people with disabilities in Poland. The leaders of the organization created it because of what they didn’t see anyone else doing in their country. The Fuga Mundi Foundation’s creator, Marek Piasecki, is a modern-day hero in the truest sense. Piasecki, who is paraplegic, started his organization three years ago with the help of friends in response to what they didn’t see around them when it came to support mechanisms and efforts on
behalf of people with disabilities in Poland. Piasecki himself makes no money at what he does, but is doing it because it is something that he and his wife, a physical therapist with two jobs, truly believe in. “It was incredibly energizing for me to see the amount of passion and time people put in to advance the cause of people with disabilities in their country for little or no wages,” commented John Tschida, the director of Public Policy and Research at Courage Center. Tschida visited Poland for two weeks in November and December after a group of Polish nonprofit organizations (called Non-Governmental Organizations, or NGOs) invited and paid for him to visit them and educate other NGOs and government and business leaders in Poland about changing public policy. The situation for people with disabilities in Poland today can be compared to that faced by people with disabilities 50 years ago in the United States. Advocates in Poland are fight-
ing to integrate children with disabilities into the public school system, and face blatant discrimination fueled by a religious belief system dictating that people with disabilities and/or their families must have done something to “deserve” the disability. They are also fighting an infrastructure that makes accessibility almost impossible, particularly for people in wheelchairs. Piasecki’s goals are to offer thorough rehabilitation services to disabled people in Poland through information and assistance, individual material and financial support, educational courses, and the construction of a rehabilitation and recreation center for people with disabilities. The center will provide training facilities as well as a community center similar to the Center for Independent living here in the Twin Cities. Piasecki has been successful at acquiring money from state funds by talking to government officials about the daunting issues faced by people Poland - cont. on p. 5
n Wednesday, February 21, 2001, the United States Supreme Court held, in “University of Alabama Board of Trustees vs. Garrett,” that state employees cannot sue their states for monetary damages in federal court under the Americans With Disabilities Act (ADA). By eliminating the threat of a monetary damages suit, the Court has removed an important incentive for the states to examine and remedy existing policies and practices. Although the ruling prohibits monetary damages, state employees retain the right to sue for “injunctive or prospective relief.” That is, they can ask the federal government to force the State to cease existing discriminatory practices or to change existing policies. For several months, lawyers and advocates representing persons with disabilities have waited for the Supreme Court’s decision. The Supreme Court had signaled in many ways its philosophy of “States Rights,” or returning power of government to the states. The most recent decision involving civil rights and state employment was a case where a state employee in Florida sued the state for age discrimination. The Supreme Court held that states were immune from suit by state employees under the Age Discrimination in Employment Act because of the immunity protection granted states under the Eleventh Amendment to the Constitution. The Original Cases The Supreme Court’s “Garrett” ruling combined two claims of disability discrimination by state employees. Patricia Garrett was a nurse at the University of AlabamaBirmingham University Hospital. After she was diagnosed
with breast cancer in 1994, Garrett contended that her supervisor made negative comments about her disability, and repeatedly threatened to transfer her from her position as director of nursing at the hospital’s Women’s Services/Neonatology unit. Although Garrett could perform the essential functions of her job, she was demoted shortly after returning from sick leave. Milton Ash, who has diabetes and several respiratory impairments, including chronic asthma, worked in a confined area and also drove vehicles for the Alabama Department of Youth Services (ADYS). Because of his asthma, he repeatedly asked ADYS to enforce its existing non-smoking policy, and to repair vehicles which leaked carbon monoxide. Ash also asked to be transferred to another shift to accommodate a newly diagnosed condition — sleep apnea. Both Garrett and Ash brought suit against the State under the employment provisions, or Title I, of the ADA. The state brought a motion for summary judgment, which means that Alabama believed that, on its face, the suit was not viable and should be dismissed. They argued that states were immune from suit by state employees under the ADA because of the Eleventh Amendment. The state district court agreed with them and dismissed the case. The Eleventh Circuit Court of Appeals disagreed and reversed. The Supreme Court analyzed this case the same way as it has analyzed previous decisions involving suits by employees against a state. They asked two basic questions. First, did Congress intend to,
in essence, waive immunity by the states to suit under the Eleventh Amendment? Clearly, in this case, Congress had that intention. The ADA includes language at 42 U.S.C., Section 12202, which states: “A state shall not be immune under the eleventh amendment to the constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this Act.” No “Widespread Discrimination” The second basic question asked by the Court was, did Congress have the authority to waive state immunity under the Eleventh Amendment in order to uphold the provision of equal protections or due process under the Fourteenth Amendment of the Constitution? Here, the Court said Congress had exceeded its authority because it had not proved that this waiver of immunity was necessary to adequately protect the equal rights of individuals with disabilities. The Court discounted the Congressional findings and record which led to the passage of the ADA, arguing that the record did not show extensive discrimination against persons with disabilities by states. The Court said that in order to uphold an “equal protection” argument, persons with disabilities would have had to prove that states had perpetrated the kind of blanket discrimination that was shown to exist against people of color, leading to the passage of the Voters Rights Act of 1965. Justice Breyer in his dissent attached an appendix of all the reported discrimination by states against employees or applicants for employment which had been
Court - cont. on p. 10