2001 will be forever remembered as Annus Horribilis, a tragic, horribly painful year, in which our beautiful open American society suffered a serious blow at the hand of Islamic terrorists. Our hearts bled on September 11 when hijackers took the lives of more than 3,500 people by crashing four fully fueled planes, loaded with unsuspecting passengers, into the Pentagon, the twin towers of the New York World Trade Center, and a field in rural Pennsylvania. We watched with horror as the two 110-story twin towers crumbled to the ground in a mountain of burning rubble, covering acres in lower Manhattan with death and destruction. That catastrophic day was like no other day in our history, with the possible exception of December 7, 1941, when the Japanese bombed Pearl Harbor and killed or maimed more than 3,000 people. When Pearl Harbor was attacked, the United States of America responded by entering World War II, and likewise, on September 11, 2001, our country began a new war—a war on international terrorism.
Recognizing that terrorism honors no geographic boundaries, nations around the globe pledged their support in ferreting out worldwide terrorist networks such as the al-Qaeda. In the ensuing weeks, financial assets of the terrorist organizations were frozen, new worldwide security measures were put in place, and the United States military moved into Afghanistan. The Taliban government in Afghanistan had been asked to turn over Osama bin Laden, mastermind of the September 11 attacks, but they refused. America then joined forces with Northern Alliance soldiers in Afghanistan, who for years had been fighting to remove the oppressive Taliban from power. Less than 100 days later, the Taliban was crushed, Osama bin Laden was on the run, and a free Afghanistan was beginning to form a new coalition government. But, as our President George W. Bush has stated, the war on terrorism has just begun, and it is a new kind of war. It will take years of national resolve and international cooperation to make our world a safer place for all.
The events of September 11, alone, were enough to make 2001 a historical watershed as we mourned our tragic losses while struggling to deal with the serious economic aftermath of the attacks that crippled our airline industry and caused thousands of other businesses to face potential bankruptcy. But then America was dealt another blow in late September, when Robert Stevens, a picture editor at American Media in Boca Raton, Florida, died from anthrax inhalation. It soon became evident that we were now facing a bioterrorism attack that had been unleashed through letters sent via the U.S. Postal Service. Anthrax surfaced in New York City, New Jersey, Connecticut, the Midwest, and Washington, DC. By years end, the Hart Office Building on Capitol Hill remained closed because Senate Majority Leader Thomas Daschle (D–SD) had received a contaminated letter that infected the entire building, five people were dead, the postal system was crippled, and the source of the anthrax remained unknown.
In view of the momentous events of recent months, it seems a lifetime ago that George W. Bush was sworn in as the controversial 43rd President of the United States of America. In looking back to January 2001, readers may recall that many Americans felt the president did not have a mandate to govern, the Republicans held a slight majority in the House of Representatives, the U.S. Senate was evenly split between the parties at 50–50, and the newly elected vice president, Richard B. Cheney, was expected to cast many tie-breaking votes. In his first major speech, President Bush discussed his national vision of “compassionate conservatism,” which included an agenda to reform social security; create a prescription drug benefit for older Americans; increase spending for education, defense, and health research; and reduce the national debt while cutting taxes. Before the president could get his agenda moving, a political earthquake hit Capitol Hill when Vermont Republican Senator James M. Jeffords announced he would become an Independent and vote with the Democratic caucus. In an unprecedented move, this gave the Democrats control of the Senate and the sitting Majority Leader C. Trent Lott (R–MS) had to relinquish power to former Minority Leader Thomas A. Daschle (D–SD). Twenty new committee chairpersons were put in place, and they actually exchanged offices with former Republican leaders as control shifted to the Democrats under the new Senatorial balance of power.
Despite the shift in Congressional power, President Bush was successful in securing passage of one of his most important priorities early in his Administration, the Economic Growth and Tax Reconciliation Act of 2001 (P.L. 107–16). This law, although highly controversial due to divergent views as to the best way to stimulate the sagging American economy while reforming domestic social programs, provided a $1.35 trillion across-the-board income tax cut. Included in P.L. 107–16 was “The Hope for Children Act” (H.R. 622), which was one of very few laws enacted in 2001 that benefited people with disabilities. This act gave additional tax benefits to families who adopted a child with special needs by increasing the income tax credit from $6,000 to $10,000, allowing the full cost of adoption to be deducted, and by doubling the income ceiling to qualify for full tax credits to $150,000. Furthermore, this important tax credit program, which was to expire in December, was permanently authorized.
P.L. 107–16 was the only piece of major legislation enacted prior to September 11. After September 11, all debates on Social Security surpluses, patient rights, faith-based initiatives, family support, and election reform gave way to defense, terrorism, and national security issues. Congress united lock-step with President Bush to pass a series of laws designed to strengthen our internal security, support those who suffered personal tragedy, and to mitigate against the financial devastation resulting from the terrorist attacks. Key legislation included a $40 billion emergency recovery and response spending bill (P.L. 107–38), a joint resolution authorizing the use of military force against those responsible for the attacks (P.L. 107–40), $15 billion to preserve the viability of the U.S. airline industry (P.L. 107–42), and a counterterrorism law that dramatically expanded police powers while improving aviation security (P.L.107–71). Surprisingly, Congress also came together to enact all 13 federal agency spending bills without the rancor of recent years, and, even more surprising, a second piece of substantive domestic legislation was passed, the Elementary and Secondary Education Act (ESEA–P.L. 107–110).
Education reform was a priority of President Bush, and he was willing to compromise with Congress over school vouchers in order to secure enactment of the ESEA in 2001. On December 18, Congress passed a substantial re-authorization of the ESEA that had the primary goals of enabling all children to read and do mathematics by the third grade and to have qualified teachers in every classroom. To that end, the landmark legislation included requirements for (a) state-administered testing of every student in grades 3 through 8 in reading and mathematics; (b) national testing of a smaller sample to provide a benchmark for assessing a school's performance; and (c) state measurement of progress for specific children, including those who are poor, members of a minority group, or who have a disability. In addition, the states must establish minimum levels of proficiency and demonstrate steady progress in bringing students up to those proficiency levels within the next 12 years. Failing schools will get federal assistance to improve their performance, but continued failure will result in sanctions, such as personnel replacement, curriculum changes, or conversion to charter schools. Schools with large proportions of low-income students will receive additional money, while states and localities will have more flexibility in spending federal monies. Finally, children in underperforming schools will be eligible for help, such as federal aid for tutoring, access to summer school programs, or transportation to another public school.
President Bush was not successful in his efforts to include school vouchers in the new ESEA, nor was the disability community successful in securing full funding for the Individuals With Disabilities Education Act (IDEA). In one of the most difficult battles of the year, disability advocates again sought to have Congress increase federal special education funding up to 40% of the actual cost of educating a child with special needs, as they promised in 1975 when IDEA was enacted. Initially, the Senate was willing to fully fund IDEA through mandatory spending increases over a 6-year period, but this provision was derailed by the ongoing controversy over discipline provisions in the law. Again, Senators Jeff Sessions (R–AL) and Christopher S. Bond (R–MO) and Representative Charles Norwood (R–GA) pushed to amend IDEA discipline provisions as a condition of increased funding. They believed students with disabilities were disciplined differently, and more leniently, than were other students, and they sought to weaken current legal protections to make it easier to remove students with disabilities from regular classrooms through suspension, expulsion, or placement in alternative settings. Unable to reach a compromise, but anxious to enact ESEA in 2001, Congress postponed all IDEA funding and discipline issues until next year, when the law is scheduled for reauthorization.
The first session of the 107th Congress ended without any other action on disability-specific legislation. However, it appears we did quite well in the 2002 budget appropriations process because the big winners were the Departments of Health and Human Services (HHS) and Education (DE), which oversee many discretionary disability programs. Because funding for these departments is typically drawn-out, controversial, and fraught with ideological confrontations, advocates were quite pleased with this years' outcome. Total spending for HHS increased by nearly 14%, with the National Institutes of Health (NIH) receiving a significant 15% increase and the Centers for Disease Control receiving $430 million more than in Fiscal Year (FY) 2001. Assistive technology, developmental disabilities, child care, maternal and child health, civil rights enforcement, and some special projects all received increases, while the Title XX Social Services Block Grant program was reduced by 25 million, or a little more than 1%. The Department of Education received an overall 15.2% increase to support the new ESEA programs. Included in the DE budget were an 18% increase in grants to educate poor students, a 19% increase to support special education services, and an overall 5% increase for Rehabilitation Services and Disability Research programs. The Department of Labor (DOL), which houses several disability employment initiatives—including the new Office of Disability Employment Policy—received a modest 3.4% increase. The Department of Housing and Urban Development (HUD) was given an 11% increase specifically for the Section 811 program. This means that in 2002, there will be an additional $24 million to support the housing needs of individuals with disabilities.
As stated earlier, the disability community fared reasonably well in the 2002 appropriations process, especially in view of our national economic challenges. But, political analysts agree, big battles and red ink are on the horizon as lawmakers attempt to balance the impact of a recession, tax cuts, and deficit spending with expanded defense, national security, and the war on terrorism. Evidence of the growing struggle was clearly visible at the end of 2001, when Congress was unable to agree on an economic stimulus package. Among the most controversial, unresolved issues were Medicaid funding, health benefits for the unemployed, expedited tax reductions, and corporate tax breaks. These issues are enormously important to the American people, as evidenced by a growing demand in recent weeks for increased attention to our domestic agenda. Clearly, they will be the topics of critical debate and partisan rhetoric in 2002, a midterm election year.
Although terrorism changed our Congressional priorities in 2001, prior to September 11, there had been extensive activity on disability issues in the judiciary and in the new administration. Although progress slowed in the latter part of the year, many of these initiatives did move forward and will continue to do so in the months ahead. With regard to the new administration, it was really quite remarkable that a newly elected president acknowledged the challenges facing people with disabilities. Just days after his inauguration, President Bush articulated his disability agenda in The New Freedom Initiative. While recognizing that significant progress had been made since 1990, when his father, former President George Bush Sr., signed the Americans With Disabilities Act (ADA), the president declared that much remained to be done to improve the quality of life for people with disabilities. He pledged that the new Bush Administration was “committed to tearing down barriers to equality for the 54 million Americans with disabilities” and that he would work with Congress to realize the dream of “equal access to full participation in American society.” The New Freedom Initiative focused on three key areas: increased access to assistive and universally designed technologies, expanded educational opportunities, and greater access to full community life. With regard to increased technological access, President Bush endorsed (a) funding for assistive technology research and development through the Rehabilitative Engineering Research Centers; (b) developing more opportunities for public–private partnerships; (c) providing grants to the states to support low-interest loan programs to consumers to purchase assistive technological devices; and (d) increasing the authority, responsibility, and financial support for the Interagency Committee on Disabilities Research in order to ascertain the technological priorities of the disability community and to increase collaboration between federal laboratories and the private sector. In the area of expanded educational opportunities for Americans with disabilities, the president called for increased special education funding and financial incentives for the states to develop new reading and mathematics competency programs. In furthering greater access to community life, home ownership was endorsed and President Bush called for full implementation of P.L. 106–569, which allows local housing authorities to advance a year's worth of Section 8 rental vouchers so that people with disabilities can have a down payment on a home. Many of the president's New Freedom priorities were included in his FY 2002 Budget, and, as previously discussed, they received increased funding in the federal appropriations process during the latter part of the year.
In the New Freedom Initiative, President Bush also promised swift implementation of the U.S. Supreme Court decision in L.C. v. Olmstead, which required access to services in the “most integrated setting” appropriate to individual needs. In June, he issued Executive Order No. 13217 and called on federal agencies to assist states and localities in implementing the Olmstead decision. He also instructed the Departments of Justice, HHS, Education, Labor, HUD, and the Social Security Administration (SSA) to evaluate their policies, statutes, regulations, and programs, to ascertain whether changes were necessary to improve the availability of community-based services. Following extensive public input, the federal agencies delivered their preliminary report on December 21 entitled “Delivering on the Promise.” Although well beyond the scope of this article, the comprehensive document presented hundreds of specific actions that the federal agencies will take to facilitate full community inclusion in health care, housing, transportation, education, employment, financial support, and personal assistance. In addition, systemic recommendations regarding accountability, legal compliance, public awareness, outreach, use of data, and cross-agency collaboration were identified. “Delivering on the Promise” presented a positive, ambitious, federal blueprint for future action and, if fully implemented in a timely manner, will do much to remove barriers to community inclusion for people with disabilities in our society. The full report can be viewed at www.hhs.gov/newfreedom.
In 2001, President Bush also created two commissions of particular interest and concern to disability advocates: a Commission on Social Security and a Commission on Special Education. The first is a 16-member commission appointed “to study social security and make specific recommendations to preserve Social Security for seniors while building wealth of younger Americans.” Advocates were deeply concerned about the fairness of this commission because members were required to include proposals to privatize the Social Security trust fund through individual personal retirement accounts. The Consortium for Citizens With Disabilities has cautioned against these accounts because they shift the risk from the government to individual investments, with the result that people with disabilities who are dependent upon Social Security Title II Old Age, Survivors, and Disability Insurance programs for basic essentials, will be financially harmed. In October, seven disability advocates met with the commission, and, in addition to discussing the inadequacy of the funding formula, they reminded commission members of the recent General Accounting Office (GAO) report. The GAO, a nonpartisan congressional office, found that private individual accounts, created by diverting part of the payroll tax from Social Security, was not an adequate substitute for people with disabilities, because many have low wages or sporadic work histories. Late in December, the Commission delivered a 141-page report to the president entitled, “Strengthening Social Security and Creating Personal Wealth for All Americans.” The controversial report presented three different options for reforming Social Security, each of which diverted revenue into voluntary personal accounts with private investment options. Disability advocates will conduct a comprehensive analysis of the Social Security Commission recommendations early in 2002, but a preliminary review indicated there were no protections for people with disabilities in any of the proposed plans. In the interim, AAMR members can access the full report at http://www.ssa.gov.
The second commission was created on October 3, when President Bush appointed 24 individuals to serve on the Commission on Excellence in Special Education. In preparation for the upcoming reauthorization of IDEA, the commission was charged with making recommendations for improving the educational performance of students with disabilities. Specifically, they were to investigate and make recommendations on nine issues: (a) the effectiveness, cost, and appropriate role of the federal government in special education; (b) how federal resources can be used to improve educational results; (c) the issues for a research agenda; (d) the impact of providing early intervention in reading on the process of referring and identifying children for special education; (e) the effect of special education funding on decisions to serve, place, or refer children, including recommendations for alternative funding formulae that might achieve better results and eliminate incentives that undermine high-quality education goals; (f) the role of the federal government in recruiting and retaining qualified personnel, while including children with disabilities in personnel performance and accountability systems; (g) the impact of federal and state requirements on the cost and effectiveness of special education services; (h) how differences in local education agency size, location, demographics, and wealth affect how children are referred; and (i) an analysis of state and local government financing and whether federal financial requirements to “supplement not supplant” and “maintain level of effort” are appropriate. The commission must deliver its report by April 30, 2002. In view of the ongoing national controversy over the cost–benefit of special education, and the pending fight over reauthorization of IDEA, the entire disability community anxiously awaits the commission findings.
Two additional substantive disability issues were on the administrative agenda in 2001: the Surgeon General's Initiative on Health Disparities and Mental Retardation and a workshop on Emotional and Behavioral Health in Persons With Mental Retardation, sponsored by the NIH and the Joseph P. Kennedy Jr. Foundation. Both of these events were important because they drew national attention to the physical, emotional, and behavioral health issues that people with mental retardation and related developmental disabilities must face on a daily basis, issues that continue to challenge our field and our nation. With regard to the latter, in late November, 50 national experts were convened to identify barriers to including people with mental retardation in federally funded behavioral and mental health research, to specify ways to promote evidenced-based treatment for emotional and behavioral challenges, and to develop a blueprint for future research and service that will meet the needs of our constituency with mental retardation. There were six working groups that identified critical issues and developed national recommendations in the areas of epidemiology, diagnosis and assessment, ethical considerations, interventions research, research design, and research training. A report detailing the important findings and recommendations on these critical issues will be formally presented in 2002.
The Surgeon General's Report on Health Disparities and Mental Retardation will also be ready early next year. That initiative began in March 2001, when Timothy Shriver, President and Chief Executive Officer of Special Olympics International, unveiled a report entitled “The Health Status and Needs of Individuals With Mental Retardation,” which was written by disability researchers Edward Zigler, Sarah M. Horowitz, Bonnie D. Kerker, and Pamela L. Owens. U.S. Surgeon General David Satcher was appalled at the findings and agreed to convene a special initiative to focus national attention on the unmet health, dental, and mental health needs of children and adults with mental retardation. Following national questionnaires and listening sessions, the surgeon general convened a meeting of national experts. In December, they came together to develop an action plan to focus national attention on the shameful ignorance, neglect, and mistreatment that people with mental retardation had to overcome when attempting to secure adequate health and dental services. At the conclusion of the meeting, Dr. Satcher held a news conference to discuss the preliminary findings and recommendations. He identified four key issues that must be addressed if the health status of individuals with mental retardation is to be improved: (a) increasing access to quality health care, (b) improving health care provider education and training, (c) taking a comprehensive approach to delivering health care across the lifespan, and (d) reducing stigma while increasing public awareness.
The surgeon general also took advantage of this important occasion to honor a relentless champion and unwavering leader, Eunice Kennedy Shriver. Dr. Satcher presented the prized Surgeon General's Medallion Award to Mrs. Shriver for her leadership in the worldwide struggle to improve the quality of life for people with mental retardation. In presenting this coveted award, Dr. Satcher stated, “For nearly half a century, Mrs. Shriver has tirelessly championed the issues of people with mental retardation and has led the nation toward greater understanding of the needs of this population.” The Surgeon General's Medallion Award is rarely given, but no one was more deserving than Mrs. Eunice Kennedy Shriver, whose work and commitment has made a significant difference in the lives of countless individuals with mental retardation in our country and throughout the world.
Finally, in other administrative actions of this last year, the name of the Health Care Financing Administration was officially changed to the Centers for Medicare and Medicaid Services, and additional appointments were made to key disability leadership positions. It is important to note that due to the delays of a contested presidential election, the change in Senate leadership, and the events of September 11, many disability-related positions remained unfilled at the end of 2001. Among those being selected for positions in the Department of HHS were Claude A. Allen, Deputy Secretary; Ed Sontag, Assistant Secretary for Administration and Management; Bobby P. Jindal, Assistant Secretary for Planning and Evaluation; Thomas Scully, Administrator, Centers for Medicare and Medicaid Services; Wade F. Horn, Administrator for Children and Families; Patricia A. Morrissey, Commissioner, Administration on Developmental Disabilities; and Sally Atwarter, Executive Director of the President's Committee on Mental Retardation. In the Department of Education, Robert Pasternack was chosen as Assistant Secretary for Special Education and Rehabilitative Services, and Joanne M. Wilson was named Commissioner of the Rehabilitation Services Administration. In the Social Security Administration, Jo Anne B. Barnhart was named Commissioner, and Martin H. Gerry was nominated for Deputy Commissioner, Disability and Income Security Programs. Other administration appointments included Cari Dominquez, Chair, the Equal Employment Opportunity Commission; Gian-Carlo Peressutti, Associate Director, White House Office of Public Liaison; and Gerald Reynolds, Director of the Office of Civil Rights in the U.S. Department of Justice. At years end, W. Roy Grizzard was nominated to fill the newly created position of Assistant Secretary for Disability Employment Policy in the Department of Labor.
With regards to the judicial branch of government in 2001, the U.S. Supreme Court was heavily involved in several critically important disability issues, including the controversy over executing defendants with mental retardation and challenges to the ADA. As AAMR members know, for decades our Association has been vociferously opposed to executing people with mental retardation. In 1988, we filed an Amicus Curiae brief with the Supreme Court in the case of Johnny Paul Penry v. James A. Lynaugh. At that time, AAMR took the position that executing people with mental retardation was cruel and unusual punishment under the Eighth Amendment of our Constitution. The Supreme Court disagreed with our position and concluded they would look to the states for “evolving standards of decency” in determining what was “cruel and unusual punishment” in our society. The Court did, however, send the Penry case back to Texas, stating that a jury must consider mental retardation as a mitigating factor during sentencing. In 1990, Johnny Paul Penry was retried, found guilty, and again, sentenced to death. In the summer of 2000, appeals were again filed in the Supreme Court on behalf of Penry. Against all odds, on November 16, 2000, the Court intervened just 3 hours prior to Penry's execution by agreeing to consider new issues regarding the use of confidential clinical evaluation information and improper jury instructions. This past June, the Court overturned Penry's second death sentence and sent the case back to Texas because the jury had, again, been given improper and confusing instructions about weighing mental retardation as a mitigating factor.
In the interim, on March 26, the Supreme Court accepted the case of Earnest P. McCarver v. North Carolina, a case in which they would reconsider the larger question of whether executing people with mental retardation violated the Eighth Amendment of our Constitution. The AAMR and six other organizations submitted an Amicus Curiae brief on behalf of McCarver, wherein we clearly documented strong evidence of an ever-growing national consensus that executing people with mental retardation was a barbaric practice that should be banned. However, there was an interesting turn of events in August, when North Carolina Governor Michael Easley signed a new law forbidding execution of inmates with mental retardation, including those currently on death row. Predictably, the Supreme Court dismissed the McCarver case as “moot” in view of the new North Carolina law, but they decided to proceed with the death penalty issue by accepting the case of Daryl R. Atkins v. Commonwealth of Virginia. Mr. Atkins, 23, had been on death row since 1998 for the 1996 abduction and murder of Eric Nesbitt, a U.S. airman who was stationed at Langley Air Force Base in Hampton, VA. A co-defendant, William A. Jones, had been given life in prison in exchange for pleading guilty and for testifying that Atkins had been the triggerman, a fact that Atkins always denied. With an IQ of 59, limited adaptive behavior, a history of school failure, and the inability to hold a job, Daryl Atkins appears to have a quite straightforward case, and one in which the Court can focus on the Constitutional question. In addition, in a most unusual move, the Court also decided that the brief prepared by AAMR in the McCarver case would be considered in the Atkins case. They agreed to this atypical arrangement because the arguments of the Amici broadly apply to the issue, not to the specific individual and because all incoming Court documents are log-jammed for irradiation due to anthrax contamination in Washington, DC.
Our AAMR members, especially our tireless legal advocates, are hopeful that the Supreme Court will soon outlaw the practice of executing people with mental retardation. Much has happened in the 13 years since our initial Amicus Curiae brief was submitted on behalf of Johnny Paul Penry. Of the 38 states that permit capital punishment, there are now 18 (AZ, AR, CO, CT, FL, GA, IN, KS, KY, MD, MO, NE, NM, NY, NC, SD, TN, WA) that have outlawed such executions. This represents a nine-fold increase since 1989, and additional legislation is pending in other states. Similarly, the federal government forbids these executions, whereas 12 other states and the District of Columbia have outlawed capital punishment entirely. Furthermore, Americans have been increasingly vocal about ceasing the practice of executing those whose intelligence falls in the lowest 2% of the population. As stated in the most recent AAMR Amicus Curiae brief:
The evidence is clear. It shows virtually no support for executing people with mental retardation among legislators, either State or Federal. It shows almost no prosecutors or judges willing to state that they believe individuals with mental retardation should receive the death penalty. It shows governors exercising their clemency powers to prevent execution when they come to understand that a defendant has mental retardation. And in an extraordinary array of public opinion surveys, spread across the country, taken by different organizations over a substantial span of time, it shows overwhelming opposition among the American people to the execution of any person who has mental retardation. A clear majority of those Americans who support the death penalty oppose its use for defendants who have mental retardation. The principle reason for this remarkable level of agreement is our shared moral judgment as a Nation that individuals with mental retardation do not have the requisite level of culpability to warrant execution. . . . the [Supreme] court should prohibit the practice as the cruel and unusual punishment that it is.
We anxiously await their decision in 2002.
In addition to the death penalty, in 2001, the Supreme Court focused on numerous cases pertaining to the ADA, including the definition of disability, reasonable accommodation, and jurisdiction of the EEOC in pursuing ADA remedies. Early in the year, the Court issued its opinion in the case of The Board of Trustees of the University of Alabama v. Garret et al. The AAMR had joined with six other disability organizations in serving as an Amicus Curiae in support of two Alabama state employees—Patricia Garrett, a registered nurse who had breast cancer, and Milton Ash, a corrections officer with severe asthma, who were victims of job discrimination and who sued the state for monetary damages under Title I of the ADA. The 11th Circuit U.S. Federal Court of Appeals had previously ruled in favor of Garrett, but in a disappointing turn of events, the U.S. Supreme Court reversed that decision by ruling that states were protected from liability and monetary damages. Writing for the slim 5 to 4 majority, Chief Justice William H. Rehnquist concluded that Congress had exceeded its authority in opening states to lawsuits under Title I of the ADA. Under the Fourteenth Amendment, Congress did not have the authority to take such action unless specific circumstances, including proportionate remedies, were clearly evident. In reaching this decision, the Court applied a two-part test. First, they considered whether the ADA was designed to remedy a history of unconstitutional state conduct and, second, whether the remedy contained in the ADA was “proportionate” to the degree of constitutional violations.
The Court found that when the ADA was enacted, Congress had insufficient evidence of unconstitutional employment discrimination by the states to justify use of its Fourteenth Amendment powers. The Court noted that Congress had to do more than document general societal attitudes of discrimination against people with disabilities. Before enacting Title I, they had to actually prove that the state governments had engaged in clear patterns of unconstitutional discrimination. Furthermore, the Court found that even if there had been a clear record of state-based discrimination, the remedies set forth in the ADA far exceeded those required to remedy unconstitutional state conduct. In considering what constituted discrimination on the basis of disability, Justice Rehnquist noted that only “rational basis” scrutiny was required and the Title I accommodation “far exceeds what is constitutionally required.” By way of example, he noted:
The Fourteenth Amendment does not require States to make special accommodations for the disabled, so long as their actions toward such individuals are rational. They could quite hardheadedly—and perhaps hardheartedly—hold to job-qualification requirements which do not make allowance for the disabled.
In summary, Rehnquist stated:
The requirements for private individuals to recover money damages against the States—that there be state discrimination violative of the Fourteenth Amendment and that the remedy imposed by Congress be congruent and proportional to the targeted violation—was not met.
Thankfully, the Garrett decision was a very narrow one, and although it does affect the ability of people with disabilities to sue state employers for monetary damages in federal court, it does not affect other important aspects of life, including the option to sue states for injunctive relief or to file suit against private employers or local governments. Disability advocates were disappointed by the Garrett decision but they were relieved it was so limited. They were especially thankful that the Court declined to rule on the constitutionality of Title II of the ADA, which dealt with state and local government programs because more positive Court decisions, like Olmstead, remained intact.
On a more positive note and in the highly publicized case of PGA Tour, Inc. v. Martin, the Court ruled that the PGA had to allow golfer Casey Martin to use a motorized cart during final qualifying rounds or in sanctioned tournaments. Martin, a talented golfer who became extremely fatigued when walking the golf course due to a degenerative circulatory disorder, had been denied use of his cart because it violated PGA rules. Martin sued the PGA, claiming the ADA required an entity operating:
public accommodations [to make] reasonable modifications [in its policies] when . . . necessary to afford such accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such . . . accommodations.
The federal district court ordered the PGA to allow use of the cart and the 9th U.S. Circuit Court of Appeals concurred. However, just about the same time, and ruling on a different case, the U.S. Court in the 7th Circuit found that the nature of golfing competition would be fundamentally altered if a golfer with a disability could use a cart when others had to walk. In May, settling the conflicting court decisions, the Supreme Court ruled that:
allowing Martin to use a golf cart . . . is not a modification that would fundamentally alter the nature of (PGA) tours or the third stage of the Q-School. . . . The use of carts is not inconsistent with the fundamental character of golf, the essence of which has always been shot-making.
Justice John Paul Stevens, who wrote for the 7–2 majority, also made the point that:
even if the petitioner's factual predicate is accepted, its legal position is fatally flawed because its refusal to consider Martin's personal circumstances in deciding whether to accommodate his disability runs counter to the ADA's requirement that an individualized inquiry be conducted.
This latter point was critically important to disability advocates because it underscored the Court's acceptance of individualized inquiry as necessary in determining reasonable accommodation under the ADA.
Throughout 2001, ADA judicial challenges continued and by year's end the Court had agreed to rule on four more employment-related disability cases. In the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Ella Williams, the Court agreed to decide whether an individual, who was unable to perform job duties due to a physical disability and who refused another position with similar manual dexterity requirements, was protected by the ADA. In this case, Ms. Williams suffered from crippling carpal tunnel syndrome and tendonitis, which had developed while working on Toyota's assembly line. She was unable function in her position, and Toyota transferred her to an inspection position for 3 years. Toyota later expanded her duties to include manual tasks, which caused ligament and muscle problems to reappear in a more severe form. She requested reassignment to her former job and was fired when she refused to continue in the new position. Subsequently, she sued Toyota for violating her rights to reasonable accommodation under the ADA. Ms. Williams' attorney urged the Court to interpret reasonable accommodation under the ADA as covering workers who cannot perform a particular function. In addition, he made the point that without accommodations for her injuries, Ms. Williams would be barred from most jobs available to a Kentucky resident of modest education. Toyota, on the other hand, argued that “repetitively wiping cars with your arms at shoulder level was not a “major life activity” and, therefore, Ms. Williams did not qualify as having a disability under the ADA. They also pointed out that a limitation in a “major life activity” has been construed to mean the ability to work “in general,” not at a job of one's choice. Early in 2002, the Court will determine whether Ms. William's inability to perform manual tasks on the assembly line due to her musculoskeletal condition qualifies as a disability, making her eligible for a reasonable accommodation under the ADA. (Author's Note: On January 8, 2002, the Court ruled against Ms. Williams. They found that disability cannot be measured solely on the ability to do certain tasks at work. For additional information go to www.supremecourtus.gov)
In the case of U.S. Airways v. Barnett, the Court is considering whether the ADA requires an employer to assign an employee to a position as a reasonable accommodation when there is an established seniority system in place that would permit others with more seniority to access the job. In this situation, after suffering an on-the-job back injury, Robert Barnett transferred from a cargo position to the mailroom. He was later relieved of the position when another employee with more seniority transferred to the mailroom and bumped him out of the job. Barnett asked that he be allowed to stay in the mailroom as a reasonable accommodation but US Airways refused, claiming that the ADA guaranteed Barnett no more than the right to apply for, and compete equally for, reassignment. The Trial Court agreed with US Airways, but the 9th Circuit disagreed, saying
We hold that reassignment is a reasonable accommodation and that a seniority system is not a per se bar to reassignment. However, a seniority system is a factor in the undue hardship analysis. A case-by-case fact intensive analysis is required to determine whether any particular reassignment would constitute an undue hardship to the employer. If there is no undue hardship, a disabled employee who seeks reassignment as a reasonable accommodation, if otherwise qualified for a position, should receive the position rather than merely have an opportunity to compete with non-disabled employees.
The Supreme Court heard oral arguments in December, and they will rule in 2002 on this difficult issue, which pits hard-won seniority rights of workers against those with disabilities who seek the right to be free from unfair discrimination.
In a third case, Chevron U.S.A. Inc. v. Echazabal, the Supreme Court will decide whether the “direct defense,” which is allowed as a defense against discrimination under the ADA, includes a threat to the health and safety of the individual employee rather than to the health or safety of others in the workplace. In this situation, Mario Echazabal began working at a Chevron oil refinery in California in 1972. Over the years he was employed by various maintenance contractors to work primarily in the coker unit at the refinery. In 1992, he applied directly to Chevron for work, and he was offered a job contingent upon passing a physical examination. He failed the examination because his liver enzyme levels were higher than normal. The job offer was rescinded when Chevron decided that exposure to coker unit solvents and chemicals might promote further liver damage. Echazabal continued to work for the Chevron contractor at the coker unit while consulting several doctors about his liver condition. He was eventually diagnosed and treated for asymptomatic, chronic, active hepatitis C. However, none of the physicians advised him to stop working at the refinery because of his medical condition. In 1995, Echazabal again applied to Chevron for a position at the coker unit and was again offered a job contingent upon a satisfactory physical exam. He failed the examination, but this time Chevron wrote to the contractor and told them to immediately remove Mr. Echazabal from the refinery or to place him in a position that eliminated his exposure to solvents and chemicals. He was removed from the refinery, and upon losing his job, he filed a discrimination complaint under the ADA. The complaint has worked its way up to the Supreme Court, and now the Court will decide whether Chevron was within their rights when they denied Mr. Echazabal a job because it would pose a “direct threat” to his own health if he worked at the refinery. At issue is whether the “direct threat” defense permits employers to refuse to hire an applicant on the grounds that the individual, while posing no threat to the health or safety of others in the workplace, poses a direct threat to his or her own health or safety. The 9th Circuit Court held this defense was not available to Chevron, and the Supreme Court will now rule on the issue.
Finally, in a fourth ADA employment-related case, the Equal Employment Opportunity Commission (EEOC) v. Waffle House Inc., the Supreme Court will decide whether an agreement to arbitrate employment-related disputes bars the EEOC from obtaining victim-specific remedies for discrimination, such as back pay, reinstatement, and damages. In this case, Eric Baker signed a binding arbitration agreement as part of his employment application. Subsequently, he had two seizures on the job, and Waffle House fired him. Mr. Baker filed a complaint with the EEOC, and the EEOC sued Waffle House claiming an ADA violation. Waffle House, in turn, filed a motion to compel arbitration and took the position that the EEOC cannot “override” an individual employee's arbitration contract by bringing an action in court to recover monetary damages and equitable relief for that individual. The EEOC countered that they are an independent entity, empowered to seek such remedies, and a private arbitration agreement should not be a bar to their actions. The courts are now split as to whether or not the EEOC can pursue such remedies, and the Supreme Court will decide whether the EEOC, the government's principal anti-job bias enforcement agency, has the power to sue for reinstatement, back pay, compensatory damages, or punitive damages when an arbitration agreement has been signed. Like the other pending ADA cases, a Court decision is expected early in 2002.
And so—with many disability issues unresolved and new challenges on the horizon in the courts, in the administration, in Congress, and throughout the nation—2001 drew to a close. It was a year like no other. It was one in which Americans turned devastation and hardship into resolution, determination, and action. A new, tough, united, optimistic America emerged. But just as important, the kind, generous, and compassionate spirit of the American people shone through when our children contributed $1.5 million to the children of Afghanistan, and New York firefighters and policemen went to Afghanistan to thank our troops and to deliver 90,000 tons of food and blankets to the people. We can stand tall, and I know we will meet the many challenges that face our nation, our states, our field, and our constituency with intellectual disabilities in the year ahead. We are up to the task. We are Americans.
M. Doreen Croser, Executive Director, American Association on Mental Retardation, 444 N. Capitol St., NW, Suite 846, Washington, DC 20001-1512