In this discussion of recent key disability-related decisions of the U.S. Supreme Court (1995– 2004), we (a) assess whether the Court has supported or undermined certain core concepts of disability policy and (b) examine how the Court balances the comparative rights of those with and those without disabilities. In cases involving employment discrimination, family law, and access to courts and other public decision-making entities, the Court adopts an idealized version of a previous America. We explain the Court's “reverie” for that version, resorting to the constructs known as (a) compelled confrontation and remission to majoritarian processes and (b) advancement of personal relationships.
In his play “Our Town” (1938), Thornton Wilder described the relationships that his characters have with each other in Grover's Corners, a New Hampshire village. Set in the early years of the last century, “Our Town” is regarded as a classic portrait of small-town America and its characters' lives as a “universal reverie” (Atkinson, 1938).
Does the Supreme Court long for Our Town? It is a fair question and can be answered by reviewing the Supreme Court's recent decisions, those in the last 5 or so years, interpreting the rights of people with disabilities, other individuals, and families. In those cases, the Court has described the relationships and roles that people with and without disabilities and their families will have in four prominent communities in today's America: businesses and their boardrooms, individuals and their bedrooms, litigants and their courtrooms, and legislatures and their cloakrooms. In a departure from its habits during the 1980s and 1990s, when the Court was focused on such major disability-rights themes as access to, discrimination in, and rights within education (Board v. Arline, 1987; Board of Ed. v. Rowley, 1982; Cedar Rapids Community. School District v. Garrett F., 1999; Honig v. Doe, 1988; Independent School District v. Tatro, 1984; Southeastern Community College v. Davis, 1987), service systems (Bowen v. American Hospital Association, 1986; DeShaney v. Winnebago, 1989), and public accommodations (Bragdon v. Abbott, 1998), and with the entire spectrum of institutionalization (O'Connor v. Donaldson, 1974; Parham v. J.R., 1979) and conditions and rights in institutions (Youngberg v. Romeo, 1982), the Court today focuses on the private-employment sector, for example, boardrooms (Pendo, 2003) and the nature of family and family-like relationships, such as bedrooms. The shift inarguably reflects the changing membership of the Court (which, at the time we wrote this article, did not consist of Chief Justice Roberts and the successor to Justice O'Connor). More than this, however, it reflects the Court's concern with the effects of the law on the nature of American life.
Just as Wilder wrote about an iconic American town, so the Court now writes about two other kinds of America, (a) the one that is remembered as a reverie and as the one that should be and (b) the one that is and has been fashioned by the events that followed “Our Town's” first production in 1938. By its decisions, the Court tells us about the relationships that people with disabilities may have; the rules they may play by; and the places they may live, access, or use, thereby creating its vision for America and impelling us to ask whether we share that vision.
More than that, however, the Court teaches us that the core concepts of disability policy compete with values, ideas, and stereotypes that affect the quality of life of people with disabilities and their families. Just as the Court regulates relationships and access to certain places, so it also assigns more or less importance to certain values, ideas, and stereotypes.
In this article we examine the Court's decisions from two perspectives. First, we take the perspective of disability policy and assess whether the Court has supported or undermined the core concepts of disability. This analysis reveals something about the ideologies and values that affect the quality of life of individuals with disabilities and their families. Second, we take the perspective of comparative rights and examine how the Court balances the rights of individuals with disabilities and their families against the competing interests of public and private entities and other individuals. This analysis reveals the relative status of people with and those without disabilities. Underlying these analyses is the Court's concern for the relationships that people have with each other. We discuss that concern in our summary.
Except where the Court has decided a case that is clearly a precedent for its more recent decisions, we do not analyze decisions that pre-date 1999. We present the Court as it is now, not as it has been in the past. The analysis has two sections, one for each perspective. In each section, we describe the Court's decisions that relate to that perspective; identify the issues, holdings, and rationale provided by the Court for each relevant case; and discuss the principles or values underlying the Court's decisions.
From this analysis we conclude that the Court seeks to return to the “town” in which Wilder set his play. The impetus to return to an idealized version of an earlier America is profoundly conservative in that it seeks to preserve traditional institutions against certain changes, especially claims by people with disabilities. Those institutions, which are boardrooms and bedrooms, the courtrooms and the cloakrooms, and the values that underlie them—the core concepts of disability policy—are assigned more or less pre-eminence, greater or lesser value, depending on the Court's determination of the proper relationships among the core concepts and these traditional institutions.
The Court and the Core Concepts of Disability Policy
In previous articles we have argued that there are 18 core concepts of disability policy (Turnbull, Beegle, & Stowe, 2001). We derived these by (a) analyzing federal statutes, decisions of the Court, and decisions of other courts; and (b) conducting 20 focus groups and 30 interviews with a wide range of disability policy leaders, including former leaders of federal executive agencies and congressional staff; legal scholars; policy researchers; representatives of organizations of parents and individuals with disabilities; and federal, state, and local policy leaders and service providers. The 18 core concepts of disability policy are: (a) Protection From Harm, (b) Prevention, (c) Liberty, (d) Autonomy, (e) Privacy, (f) Empowerment, (g) Antidiscrimination, (h) Cultural Responsiveness, (i) Family Integrity, (j) Family Centeredness, (k) Productivity, (i) Integration, (j) Professional Capacity-Building, (k) Classification, (l) Capacity-Based Services, (m) Individualized and Appropriate Services, (n) Coordination and Collaboration, and (o) Accountability.
We then organized these concepts into a taxonomy comprised of three sets of universal policy principles: (a) the constitutional principles of Life, Liberty, and Equality; (b) the ethical principles of Community, Family as Foundation, and Dignity; and (c) the administrative principles of Capacity, Individualization, and Accountability and argued that the core concepts and their organizing taxonomy constitute a unified and holistic theory of disability policy. (The articles in which we developed the core concepts approach are available on-line from the Beach Center (http://www.beachcenter.org).
In the following discussion we apply our core concepts approach to explain the Court's recent decisions. In doing so, we focus on the concepts that are most central to the Court's decisions, namely (a) classification: Who is a person with a disability? (b) antidiscrimination: What rights does that person have to protect him or her from being treated invidiously? (c) productivity and contribution: How does discrimination, or the lack thereof, affect the person's ability to be a productive member of Our Town? (d) integration: How does discrimination, or the lack thereof, affect the person's ability to be an included member of Our Town? (e) family integrity and unity: How large are the familial rights of citizens in Our Town? and (f) accountability: How can Our Town members with disabilities hold the state and their fellow citizens accountable for wrongs based solely on disability?
Antidiscrimination and Its Legal Foundations
The Court's decision in City of Cleburne v. Cleburne Living Center (1985) was one of its seminal decisions in affirming rights for people with disabilities and, more important, for resting those rights on the equal protection clause of the 14th Amendment. In this case, the Court struck down a zoning ordinance that permitted congregate living in residential zones by all individuals except those with mental retardation, holding that (a) the exclusionary ordinance violated the 14th Amendment's equal protection clause because the city could not demonstrate that its actions were “rationally related to a legitimate governmental purpose” and (b) the ordinance reflected “an irrational prejudice against the mentally retarded” and that objectives such as “a bare … desire to harm a politically unpopular group … are not legitimate state interests.”
Cleburne is significant for several reasons. First, the Court made it clear that people with disabilities are citizens whose interests in living among others are legitimate and worthy of the Court's protection. In other words, the Court ascribed a high value to the core concepts of antidiscrimination and integration. It was not difficult to advance these core concepts; as Justice Marshall put it in his separate opinion, “the right to ‘establish a home’ has long been cherished as one of the fundamental liberties embraced by the Due Process Clause,” and the history of discrimination against people with mental retardation is simply “grotesque.”
Relying heavily on the decision in Cleburne, Congress codified the right to equal housing opportunities for persons with disabilities when it enacted the Fair Housing Amendments Act of 1988 (FHAA), which prohibited discrimination in the “sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap,” including in the definition of discrimination the “refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling” 42 U.S.C. 3604(f)(3)(B).
Although Cleburne and the FHAA provided people with disabilities significant protections against discrimination in the housing market, neither the majority opinion in Cleburne nor the FHAA explicitly extended a right against discrimination by creating any claim to reasonable accommodations that make community living feasible. To not be subjected to discrimination, then, did not entail the provision of necessary community-based medical, social, and rehabilitative services. Without those services, people with disabilities were and would continue to be routinely isolated in institutions and effectively prevented from living in the community.
The strength, scope, and even the existence of a right to live in the community remained questionable until (a) the passage of the Americans With Disabilities Act (ADA) 5 years after Cleburne and (b) the Court's decision, 9 years after Congress enacted the ADA, in Olmstead v. L.C. (1999), in which the Court recognized unjustified institutional isolation against people with disabilities as a form of discrimination under the ADA. The Court expressed two judgments about the nature of such discrimination:
First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life. … Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment. (p. 601)
In short, the Court in Olmstead relied on a statute to recognize the value of integration and the right of individuals with disabilities to have an equal opportunity to live and participate within the community, whereas in Cleburne the Court relied on the constitutional doctrine of equal protection to merely prohibit discrimination in housing for those persons with disabilities who already had some form of access to the community.
Cleburne is also significant because it determined just how much protection people with disabilities may expect from the courts when federal, state, or local governments enact laws that clearly discriminate against them on the basis of their disability alone. The Court held that when people with disabilities challenge governmental discrimination, the government may defend its discrimination by showing that its action is “rationally related to a legitimate governmental purpose.” In Cleburne, the ordinance could not pass that test; it rested on “an irrational prejudice against the mentally retarded” and reflected a “bare … desire to harm a politically unpopular group”—neither being “legitimate state interests.”
Cleburne established the original bar for legal protections against disability discrimination, but it did not set the bar very high. The Court held that people with mental retardation, and by extension people with other disabilities, do not have the same degree of judicial protection under the equal protection clause of the 14th Amendment as other minority or disadvantaged populations.
Historically, the Court has regarded members of racial minority populations to be members of a class of citizens who deserve a heightened degree of judicial protection; the Court characterized these individuals as members of a “suspect class,” indicating that any laws that treat them differently than individuals who are not members of that class are “suspect” and that courts must review them with “heightened scrutiny” to determine whether they are “narrowly tailored” and serve a “compelling” governmental purpose. The Court also has determined that women, as a class of people, deserve a special degree of protection against discrimination not afforded to other citizens, though less protection than minorities; women are members of a “quasi-suspect” class, and laws that discriminate against them are subject to an “intermediate” level of judicial review to determine whether they are “substantially related” to advancing an “important governmental purpose”. When reviewing the constitutionality of laws that discriminate against people with disabilities, however, the Court resorts to the “rational basis” test, as it did in Cleburne (i.e., the lowest classification of constitutional protection available in the Court's jurisprudence).
So, among all citizens, members of racial minorities and women as two separate classes of people arguably are deemed somewhat worthier of the Court's protection against discrimination than are people with disabilities. As the Court noted in Cleburne, the standing of people with disabilities, relative to minorities and women, derives from the reality that there are times when a legislature must draw distinctions based on disability in order to provide benefits to people with disabilities, such as by special education entitlements. To scrutinize all legislative judgments under the “suspect class/heightened scrutiny” or “semi-suspect class/intermediate quasi-scrutiny” would be to disallow a legislature to benefit those who, by the very fact that they have a disability, may have the greatest need for social supports and legislative protections. Paternalism has its place in the legislature and in the Court's jurisprudence.
Cleburne was one of several factors that persuaded Congress that the constitutional doctrine of equal protection is inadequate to protect people with disabilities and that a comprehensive civil rights statute, ADA, was necessary to do so. In the ADA, Congress declared that the nation's policy regarding people with disabilities is to offer them equal protection of the laws and, thereby, the opportunity to fully participate in the community, to live independent lives there, and to become economically self-sufficient contributors. As we noted above, Olmstead interpreted the ADA and reaffirmed its support for the core concepts of antidiscrimination and integration.
Specifically, the ADA protects people with disabilities from being discriminated against in employment (Title I), state and local government services (Title II), transportation (Titles II and III), public accommodations (Title III), and telecommunications (Title IV). Titles I and II seek to regulate the relationships of people who have disabilities with private enterprise and with state and local lawmakers. Few of those who celebrated ADA's enactment, however, foresaw just how little protection it ultimately would offer Americans with disabilities because few celebrants doubted the meaning of “disability” and “reasonable accommodation.”
Classification and Eligibility for ADA Protection
In 1999, the Court decided two cases that broadly reduced the number of people who would be classified as having a disability under the ADA. In the first case, Sutton v. United Air Lines (1999), the issue was whether a disability determination (Does the litigant have a disability and thereby eligible for ADA's protection?) should be made with regard to disabilities in their mitigated or unmitigated state. Put another way, if a person takes action to mitigate a disability, is that person still entitled to ADA protection? The Court held that
if a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures—both positive and negative—must be taken into account when judging whether that person is ‘substantially limited’ in a major life activity and thus ‘disabled’ under the Act. (p. 482)
Without a doubt, Sutton declared that people who have a disability are those who cannot successfully mitigate it. If, however, a person can be “nondisabled” by mitigating a disability, Sutton “tells” the person: “Be nondisabled if you can be. If you cannot, then you are indeed a person with a disability and ADA will protect you” (Turnbull & Stowe, 2001, p. 379).
In reaching that decision, Sutton created an inescapable Catch 22 for people with disabilities. On the one hand, individuals with an impairment who do not choose to use, or who cannot afford or do not have access to, mitigating measures may not be qualified for a job because their disability will prevent them from doing the job. On the other hand, individuals who do use mitigating measures to become job-qualified may not have any legal recourse if an employer fires or refuse to hire them because of their impairment, as was the case in Sutton (Turnbull & Stowe, 2001). If the mitigating measures are substantially effective, they would no longer be eligible for ADA protections because they would no longer qualify as a person with a disability. They may be members of Our Town but not citizens who can claim to have a disability.
Demographically, Sutton reduced the number of people who have disabilities—at least as defined by ADA. Those with impairments that can be mitigated, generally are not ADA-protected, and their claims to equal opportunities (the core concept of antidiscrimination), work (the core concept of productivity and contribution), and membership (the core concept of integration) generally are not legally recognizable.
A secondary issue in Sutton foreshadowed the Court's future direction. Although the Court in Sutton was “assuming without deciding that working is a major life activity,” thus declining to rule whether working, by itself, could ever be considered a substantial limitation of a major life activity, it did note that there was some conceptual difficulty in defining major life activities to include work. The Court cited the Equal Employment Opportunities Commission (EEOC) regulation that suggests work be viewed as a residual (nonmajor) life activity, to be taken into account only “[i]f an individual is not substantially limited with respect to any other major life activity.” 29 CFR pt. 1630, App. §1630.2(j) (1998).
In Sutton, the Court demonstrably supported the EEOC regulation that limits the type of work disability that could qualify for ADA protection— those that significantly restrict the ability to “perform either a class of jobs or a broad range of jobs in various classes.” The EEOC's definition of the term substantially limits explicitly states that “The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working” §1630.2(j)(3)(i). The Court concurred on statutory grounds, saying “when the major life activity under consideration is that of working, the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.” Although the Court in Sutton declined to officially “determine the validity of the cited regulations,” it is clear that the Court and the EEOC are in agreement: There is no right, under ADA, to a specific job or area of employment; but the Court's acceptance of the regulation and its decision still does not answer the core issue, namely, whether the Court interprets ADA to include, as a “major life activity,” the act of working for a living.
In Williams v. Toyota (2002), the Court declined to address that issue frontally, and instead clarified its position on issues related to employment and the workplace and its interpretation of the core concepts of equal opportunity (antidiscrimination), productivity, and integration. There, the issue was what an individual must show in a disability determination to “establish a substantial limitation in the specific major life activity of performing manual tasks.” Should the determination be made narrowly and in reference to the demands of a specific job or broadly and in reference to the person's ability to perform activities central to daily life?
The Court held that to receive ADA protection, an individual must show that his or her impairment substantially restricts major life activities “of central importance to most people's daily lives.” Showing that a person's disability affects his or her ability to perform tasks required by a certain job is, in and of itself, insufficient under Williams. What, then, must a person not be able to do to have an impairment that substantially restricts the major life activity of performing manual tasks? The Court gave examples of household chores, bathing, and brushing one's teeth, and concluded that Congress intended ADA to protect only those people who cannot accomplish these kinds of activities, even with the use of mitigating measures.
Sutton and Williams make it clear that ADA protects only a limited number of people because the Court has narrowly defined disability and major life activities. Defining a term and giving meaning to a construct, of course, is applying the core concept called classification. Classification, in turn, either expands or, as in these two cases, restricts the core concepts of antidiscrimination, integration, and productivity and contribution by reducing the number of people who may claim disability discrimination.
Integration, Productivity and Contribution, and Eligibility for ADA Protection
If there ever was real doubt about the Court's intention to limit ADA's protection against discrimination and its promise of integration and productivity in arenas of American life other than “neighborhoods” and “communities” under Cleburne and Olmstead, two other cases decided in 2002 dispel that doubt. In US Airways v. Barnett, the Court held that “an employer's showing that a requested accommodation conflicts with seniority rules is ordinarily sufficient to show, as a matter of law, that an ‘accommodation’ is not ‘reasonable’.” The Court's decision rests upon two rationales. First, seniority systems are important to creating and fulfilling “employee expectations of fair, uniform treatment.” Second, “to require the typical employer to show more than the existence of a seniority system might well undermine the employees' expectations of consistent, uniform treatment—expectations upon which the seniority system's benefits depend.” The pattern followed by this rationale, namely, important employee expectation for uniform treatment that is threatened by exceptions made as reasonable accommodations, would seem an easy bar for employers to clear and to give employers the power to exclude people with disabilities from a particular job or even any job, particularly if, as in US Airways, the workplace is unionized or some form of collective bargaining is involved.
The net effect of US Airways is to shrink the scope of protections against discrimination under the ADA. It does this by creating a new exception to the employer's duty to provide an equal opportunity for individuals with disabilities to be integrated and be productive. Moreover, its rationale is defensible: Everyone has a claim to be treated equally and fairly; elevating a person with a disability over workers who do not have a disability, solely to accommodate the one person, is (the Court reasons) an inherently unequal and unfair way of dealing with all people.
In Chevron v. Echazabal (2002), the Court created yet another exception to the employer's duty under the ADA, holding that if an employer determines that a person's impairment could endanger him or her at work, the employer may refuse to hire or assign the person to a particular job without violating ADA. Chevron further held that the concern for health and safety does not even have to be accurate as long as “no material issue of fact as to whether the company acted reasonably in relying on its own doctors' medical advice” is raised. If the company physician says the applicant's disability would be aggravated (even in the face of other medical opinions) and the employer reasonably (with justification) relies on that opinion, ADA will not provide any protection.
By allowing employers to adopt health and safety rules as job qualifications so that a health or safety issue related to a person's disability becomes an adequate ground for dismissal or refusal to hire, and by allowing employers to rely on their own physicians' statements, Chevron does more than impair the core concepts of antidiscrimination, productivity and contribution, and integration. It also undercuts the core concept of autonomy (the right to choose how and where to live) and empowerment (the right to participate in making decisions about one's self). Paternalism is, indeed, one of the mores of the Court (as Cleburne telegraphed).
In sum, the Court has steadily trimmed the rights extended to people with disabilities by the ADA. Where Sutton and Williams limited the scope of the beneficiaries of ADA protections, namely, who qualifies for its protections, US Airways and Chevron spoke directly to the scope of the duty to provide accommodations created by the ADA, namely, the limits of the protections provided. The Court was asked, Who qualifies? It answered: Fewer than might have qualified if disability were defined more broadly, as Congress arguably intended. The Court was asked, What protections exist for those who do qualify? It answered: Fewer than if reasonable were defined more generously.
The one glaring exception to the Court's deference to boardroom decision-making is its decision in PGA Tour v. Martin (2001), an action under Title III of the ADA states that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation” 42 U.S.C. § 12182(a). In Martin, the Court held that the PGA Tour violates ADA's equal access rule if it excludes a golfer who needs a golf cart to traverse the course but requires all other golfers to walk the course.
The Court addressed two issues in reaching its decision. First, is the Tour a public accommodation? The Court found that the PGA Tour itself, and not just the individual golf courses, is a public accommodation under ADA because it “‘leases’ and ‘operates’ golf courses to conduct its Q-School and tours,” and that Martin himself is a member of the class of beneficiaries whom Title III protects. The Tour had argued that Title III covers only discrimination against “clients and customers” seeking to obtain “goods and services” at places of public accommodation and that Martin, as a professional golfer, was pursuing an occupation and, thus, should have properly brought suit under Title I (employment discrimination). If the Court had accepted the Tour's argument, it would have put Martin into a no-win situation, because, as the Court observes, Title I “does not apply because he is an independent contractor (as the District Court found) rather than an employee.” Nevertheless, the Court declined to specifically rule against the Tour's reading of the statute and based its finding upon the fact that competing in the tournament is “a privilege that (the Tour) makes available to members of the general public,” regardless of the difficulty and expense involved in participating or Martin's status as one independently pursuing a profession.
The Court in Martin also found that a riding cart is a reasonable accommodation that does not fundamentally alter the game (which, as the Court pithily noted, consists of hitting the ball into the cup). Discrimination under Title III is defined as
a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations” §12182(b)(2)(A)(ii).
The Court's rationale rested on two findings. First, the Court found that the walking rule is not an indispensable feature of tournament golf. The Court cited the District Court's finding that the fatigue from walking during one of petitioner's tournaments did not significantly affect the skill of shot-making. Furthermore, it noted that “when given the option of using a cart, the majority of golfers in petitioner's tournaments have chosen to walk”—often for strategic reasons.
Second, the Court emphasized that the ADA requires
an individualized inquiry … to determine whether a specific modification for a particular person's disability would be reasonable under the circumstances as well as necessary for that person, and yet at the same time not work a fundamental alteration.
Citing the uncontested finding of the District Court that Martin “easily endures greater fatigue even with a cart than his able-bodied competitors do by walking” (994 F. Supp., at 1252), the Court held that the alleged purpose of “the walking rule is therefore not compromised in the slightest by allowing Martin to use a cart.”
Martin is an arguably narrow decision. The Court declined the opportunity to expand the class of intended beneficiaries of Title III by holding that all independent contractors with disabilities have a right to reasonable accommodations in public accommodations. Furthermore, its finding that the walking rule was not fundamental to participation in the tournament is limited by the Court's detailed fact-based and individualized analysis. The Court's emphasis on an individual inquiry for requested accommodations suggests that Martin is likely to be easily distinguishable from employee-based claims and, thus, limits its value as precedent. Martin, then, is unlikely to have much impact outside of professional sports and independent contractors (as arguably distinguished from employees), but it still stands as the lone exception to the Court's trend in the last 5 years to reduce its support for the core concepts of antidiscrimination, integration, and productivity and contribution.
Accountability, State Governments, and Sovereign Immunity
For a legislatively created right to have any meaning, it must be accompanied by a remedy. Yet, in a series of cases initiated by Pennhurst State School and Hospital v. Halderman (1981, commonly called “Pennhurst I” because the Court issued a later decision in the case) and, more recently, its 1996 decision in Seminole Tribe v. Florida and continuing through its 1999 decisions in three cases, Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, and Alden v. Maine, the Court has limited the conditions under which an individual could sue a state to hold it accountable for violating federal law, including the ADA. From a core concepts perspective, the Court increased the range of action that a state may take without engaging in discrimination and simultaneously restricted the core concepts of integration and productivity and contribution by reducing the ability of individuals with disabilities to hold state governments accountable for actions that exclude them from economic opportunities.
The background for this result lies in the Eleventh Amendment. That amendment recognizes that states are sovereign governments and, as a general rule, are immune from suit in federal courts. Accordingly, it provides that
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.
As established in Pennhurst I, Congress may abrogate a state's sovereign immunity to suit only if it (a) has “unequivocally expressed its intent to abrogate the immunity” and (b) acted “pursuant to a valid exercise of (Congressional) power.” That power includes the power to enforce the due process and equal protection clauses of the 14th Amendment and to enforce the interstate commerce clause.
Just how great is Congress' power? In Kimel v. Florida Board of Regents (2000), the Court applied its new test to find that Congress exceeded its power in attempting to abrogate state immunity under the Age Discrimination in Employment Act (ADEA, 29 U.S.C. §§ 621 et seq.), despite Congressional findings that the ADEA was necessary to enforce the equal protection clause. Under not just Seminole but also the three cases decided in 1999 and Kimel, Congressional power is not great at all.
In University of Alabama v. Garrett (2001), the Court applied its new test for abrogation directly to disability policy. Title I of the ADA forbids states from discriminating in employment. The state defended against an employment discrimination suit for money damages by state employees on the ground that there was insufficient evidence that states as a group had discriminated in employment against people with disabilities and, thus, there was insufficient grounds for Congress to abrogate states' sovereign immunity from suits for money damages. The Court agreed, finding that ADA's Title I as applied to the states did not reflect a “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”
Garrett resembles the employment cases insofar as people with disabilities are concerned, with the only difference being that Garrett relates to the public sector whereas the other cases related to the private sector. Who secures economic opportunities under the law still depends on the scope of ADA's protection, and ADA allows states, as employers, to escape accountability to people with disabilities, at least with regard to suits seeking money damages.
Injunctive relief is still available under Garrett (see discussion of Frew below). Injunctive relief consists of a court order compelling a state to comply with the law by taking such action as implementing hiring practices that do not discriminate against individuals with disabilities. Injunctive relief, however, although halting the continuation of discriminatory actions by states, provides no remedy for the impact that such discrimination has already had on individuals with disabilities and their families nor does it provide any means for the aggrieved party to pay the cost of litigation. So much, then, for advancing the core concepts of antidiscrimination, productivity and contribution, and integration when the state is the employer.
However, while states may sometimes shield their discriminatory activities behind the doctrine of sovereign immunity, they do not have plenary powers over all people. Several decisions by the Court have shown that although the bar is certainly set high for overcoming the doctrine of sovereign immunity, Congress can successfully abrogate state immunity under certain circumstances.
That much is clear from Nevada v. Hibbs (2003). There, the question was whether Congress could abrogate the states' sovereign immunity and subject them to suits in federal court for violating the Family and Medical Leave Act. The Court held that Congress may do just that, distinguishing Hibbs from Garrett for reasons that are important to describe.
First, there was sufficient evidence in FMLA's legislative history that states discriminated against women in employment, whereas there was insufficient evidence in ADA's legislative history, according to Garrett, that states discriminated in employment against people with disabilities. In the Court's jurisprudence, the history of discrimination counts for a great deal. With that history comes greater (for women) or lesser (for people with disabilities) protection from discrimination and opportunities for integration and productivity and contribution.
Second, FMLA (the Hibbs statute) was more narrowly tailored than Title I of ADA (the Garrett statute) to achieve the objectives of the 14th Amendment and to combat the pattern of sex discrimination that Congress identified in the statute's legislative history. “The FMLA is narrowly targeted at the fault line between work and family—precisely where sex-based overgeneralization has been and remains strongest—and affects only one aspect of the employment relationship.” By contrast, “the ADA prohibits disability discrimination ‘in regard to [any] terms, conditions, and privileges of employment’.”
There is one other circumstance under which the core concept of accountability is powerful: when a state restricts a person's access to the courts. In Tennessee v. Lane (2004), the Court held that a state cannot claim sovereign immunity when it violates Title II of the ADA by maintaining physical barriers to its courthouses. In contrast to Garrett, Lane held that (a) the history of constitutional violations against persons with disabilities in public accommodations (a subject of Title II) was sufficient to support abrogation of immunity and (b) Title II's requirement of program accessibility was “congruent and proportional to its object of enforcing the right of access to the courts.” Justice Stevens, writing the majority opinion for the Court, even stated that “evidence of the widespread exclusion of persons with disabilities from the enjoyment of public services far exceeds the record in Hibbs.”
The Lane Court also held that access to the courts is a fundamental right. Denying access to the courts and, thus, all legal remedies, makes it impracticable for people with disabilities to hold states accountable in suits that pit the person and state against each other. Denying access also vitiates the core concept of empowerment and participatory decision-making by barring people with disabilities from the forums in which governments take action affecting their lives—the courts and, by extension, the legislature. Lane thus supported the core concepts of antidiscrimination (with respect to fundamental interests), integration (through access to the courtroom), accountability (through abrogation of state immunity), and empowerment (through access to courts and other law-making forums). It also preserved two traditional remedies, a civil suit for damages and injunctive relief, to hold states accountable for violating the ADA.
This second remedy, injunctive relief (a court order commanding a person to do a particular act or not to do a particular act), was at issue in Frew ex rel. Frew v. Hawkins (2004). There, the issue was whether a person may secure an injunction that commands a state official to comply with a federal law. It long has been the rule that the 11th Amendment does not grant states any immunity from suits for prospective injunctive relief against state officials who violate federal law (Ex Parte Young, 1908). Expanding on Ex Parte Young, Frew decided that a consent agreement, entered into by state officials in a federal court in an action to enforce a federal statute, created a federally mandated duty, binding on the state, that the courts could enforce through injunctive relief: “Federal courts are not reduced to approving consent decrees and hoping for compliance. Once entered, a consent decree may be enforced.”
As with Lane, Frew supports the core concepts of antidiscrimination, accountability, and empowerment because it gives individuals access to federal courts to enforce federal law (ADA in Martin and Lane, a federal court decree in Frew) and denies the application of state sovereign immunity. Frew, however, is also similar to Martin and Lane in that its scope is fairly limited. Frew involved a very specific set of facts; state officials had entered into a consent decree in federal court that sprang “from a federal dispute and furthers the objectives of federal law.” Thus, Frew also reaffirmed the general rule that is the other side of the ancient doctrine of Ex Parte Young: A person may not use federal courts to sue state officials for violating state laws. Frew is further limited because it applies only to court-ordered consent decrees that carry out federal law, but not to other agreements between individuals and the state. The state itself (and its agencies and officials) can still claim immunity from suits in federal courts that attempt to enforce agreements other than those that are overseen by a federal court.
Family Integrity and Respect for Family Autonomy
Frew is additionally important to people with disabilities and their families because the federal program at issue was the Early Periodic Screening Diagnosis and Treatment program authorized under the Social Security Act's Title XIX, Medicaid. Thus, Frew involved federal policies directed at protecting children with or at risk of a disability and their family. Although the Court's decision did not rest on the importance of the governmental interest in protecting the family, it nevertheless supported two core concepts, protection from harm and family integrity. Protection from harm refers to any policy that attempts to curb abuse, neglect, maltreatment, or exploitation; it is grounded in a theory of “negative rights,” those that prohibit bad actions. By contrast, the core concept of family integrity involves recognizing, preserving, and protecting the family as the core unit of society; it is grounded in a theory of “positive rights,” those that grant rights and entitlements to governmental benefits. Family integrity is an important core concept for children with disabilities because families are the primary caretakers and decision-makers for children who have disabilities. The Court has historically recognized the importance of the family and shown strong support for policies aimed at preserving the family unit. That trend continues to be reflected in other recent decisions.
Strongly related to the core concept of family integrity is the core concept of autonomy: the right of individuals and families to make decisions about their private familial relationships and activities without unwarranted interference from the state or others. The Court's recent decision in Lawrence v. Texas (2003) supports this right. In Lawrence, the issue was whether “criminal convictions for adult consensual sexual intimacy in the home violate … vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment.” The Court held that a statute criminalizing homosexual sodomy is unconstitutional, reasoning that
individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.
Noting that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” the Court underscored the importance of privacy and autonomy in “the most intimate and personal choices a person may make in a lifetime.” They are central to the core concept called autonomy and to the overarching principle of liberty.
Prior to Lawrence, most family-related liberty interests were inexorably entwined with marriage, procreation, and parenting. In Lawrence, the Court rejected the idea that family-related liberty interests inure to only “married persons” or those who intend to “produce offspring,” and it recognized that individuals (as distinguished from married couples or parents-to-be) are the proper hosts of liberty interests. The precise nature of the individual relationship is less important than the relationship itself; what counts is the relationship and the privacy to which it is entitled.
Lawrence is significant in disability policy because the structure of families that include members with disabilities are as diverse as those that do not include members with disabilities and often do not fit the traditional definition of the family as consisting of child(ren), biological mother, and biological father. Indeed, children with disabilities are overrepresented in foster care systems, single-parent families, and kinship care. Many states also allow same-sex partners to adopt children.
Lawrence, then, advances the core concept of antidiscrimination by holding that a state may not single out, demean, and stigmatize a specific group of individuals by subjecting their decisions about their relationships and lifestyle to governmental oversight. Because discrimination against same-sex partners as a class receives the same level of scrutiny as extended to individuals with disabilities—the rational basis test (Cleburne)—the Lawrence decision arguably supports the proposition that the state may not single out, demean, and stigmatize individuals with disabilities for choices related to their constitutionally protected liberty interests as manifest in their relationships with other people.
Lawrence dealt with individuals' rights to exercise their liberty and to be free from direct governmental interference in exercising that right. In Troxel v. Granville (2000), the issue was the extent to which or under what circumstances a state may authorize other family members to intrude upon decisions made by a child's parents, specifically by instituting custody proceedings and receiving a judgment granting visitation rights in opposition to parental wishes. The issue in Troxel was whether the Washington nonparental visitation statute unconstitutionally violated “the fundamental right of parents to make decisions concerning the care, custody, and control of their children.”
In holding the nonparental visitation law to be unconstitutional, the Court said the statute, as applied, unconstitutionally violated parents' “due process right to make decisions concerning the care, custody, and control” of their children. The Court criticized the statute as “breathtakingly broad” because it allowed a court to determine custody based on its own determination of the “best interests” of the child without any regard, preference, or consideration for the parents' determination of their child's best interests. “The Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made.”
Troxel supports the core concepts of autonomy and family integrity by reaffirming the traditional rule that
so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children.
Troxel is particularly important for parents with disabilities and parents who have children with disabilities; prior to Troxel such open visitation statutes might have opened the door to challenges about decisions regarding the care and custody of their children based on stereotypical assumptions about disability and parents' capacity to respond to disability.
Troxel also left open the question of who has the right of control and decision-making when a conflict exists between two divorced parents. The Court addressed that question in Elk Grove Unified School District v. Newdow (2004). There, a minor's father (Newdow) sued a school district that required children to recite the Pledge of Allegiance in school. The father alleged that the Pledge's language “under God” violated the separation of church and state. The Court ducked that issue and, instead, dismissed the case on the ground that Newdow had no standing to challenge the Pledge acting in his daughter's name.
The Court gave three reasons for dismissing Newdow's suit. First, “Family relations are a traditional area of state concern.” Second, Newdow's complaint went beyond his fundamental right to discuss his religious beliefs with his daughter and attempted to “reach outside of the private parent-child sphere to restrain the acts of a third party.” Third, because he did not have standing on his own, he could only bring the suit in the name of his daughter—as a “next friend.” However, although “a next friend surely could exercise such a right, the Superior Court's order has deprived Newdow of that status.”
In Newdow's divorce decree, the Superior Court had granted his ex-spouse “sole legal custody” of their daughter. By distinguishing between custodial rights, those that the parent holds in trust for their children and that may be distributed in a divorce decree, and fundamental rights of parents that may not be removed by anything less than the loss of parental status, Newdow reinforces Troxel and the core concept of family integrity and unity and teaches us that decisions of parents deserve to be honored.
Summarizing the Court's Decisions Related to the Core Concepts
The Court has diminished the core concepts of antidiscrimination, integration, accountability, and productivity by using the core concept of classification to define narrowly the scope of ADA's protection. If individuals with impairments seek ADA protections from discrimination by a prospective employer, they now face considerable additional hurdles. Do their impairments substantially affect activities central to daily life even when considering mitigating measures? If not, they may not be classified as persons with a disability who qualify for ADA protection. Could the employment aggravate their impairment or would accommodation violate the companies' seniority policy (or a policy of similar importance relevant to the expectation of uniform treatment)? If so, the request for accommodation is unreasonable, and the ADA will offer no protection. Is the employer at issue the state? If so, the ADA does not provide a remedy for money damages that overcomes the state's right to sovereign immunity. Although the decisions in Martin and Lane provided some support for the core concepts of antidiscrimination, accountability, and empowerment by supporting the ADA requirement to accommodate disability, it is doubtful that the Court's rationale in these cases can be extended beyond situations involving a particular sport and fundamental rights (such as physical access to the courts).
The Court, however, also has reaffirmed the traditional importance ascribed to family and other intimate relationships, supporting (in Lawrence, Troxel, and Newdow) the core concept of family integrity and unity and the core concept of autonomy. Lawrence supports an expanded definition of the family with respect to fundamental rights, and Troxel and Newdow demonstrate that the Court rejects unnecessary governmental interference in intrafamily conflicts that, in its judgment, are best resolved among family members.
Further Analyzing the Court's Decisions: Comparative Rights
Disputes over rights, whether constitutionally or statutorily created, require the Court to balance the comparative rights and competing equities of the affected parties. For example, the Constitutional equal protection right and the statutory civil rights claim not to be subjected to discrimination on account of trait (disability) are not absolute; they must sometimes bow to the interests of the state or private employers, as our analysis has made clear. The question, then, is this: How and why does the Court determine which rights must yield to others?
Our analysis not only highlights the balance that the Court strikes between various entities and individuals, but it also provides insight as to why the Court has supported some core concepts and not others. This analysis reveals the relationships between individuals with disabilities, families, business entities, and the state.
Autonomy of the Individual, Family, Business Entities, and State
It helps to analyze the comparative rights of people by classifying the Court's decisions according to the affected parties and the traditional interests involved. Sutton, Williams, US Airways, Chevron, and Martin all involved the rights of individuals with disabilities relative to private enterprises; and in all cases except Martin, the Court's decision favored the business enterprise rather than the individual. The entire line of accountability cases coming out of Seminole and culminating in Garrett and Lane involved the rights of individuals relative to a state. Here, the state generally prevails over the individual. Finally, in the series of cases involving families, on the one hand, and a state directly or through empowerment of individuals outside of the traditional family on the other hand, the Court consistently favored the family and family-like relationships (Newdow and Lawrence).
The general pattern of these cases is clear: The Court has generally held in favor of long-established organizations and institutions over individuals. Yet, this pattern is not without exception and a detailed analysis requires us to examine why the Court has shown this preference, why it has made these exceptions, and to discern whether there is a consistent rationale to the Court's comparative rights jurisprudence.
If one core concept were to be considered central to all of the Court's decisions, it would have to be autonomy. The autonomy that the Court advances, however, is not simply the autonomy of the individual and family, autonomy as defined by the core concepts. Instead, the Court resurrects or revitalizes traditional doctrines that extend autonomy to employers and states to make decisions without interference by outside entities, such as Congress, or individuals, such as people with disabilities.
In Sutton, Williams, US Airways, and Chevron, it is the employers' traditional right to make decisions about its employees: whom to hire, fire, promote, etc., without outside interference; the employers' rights flow from the Court's view of employer autonomy. Examined through this perspective, the Court repels ADA's attempt to limit the traditional autonomy of the employer to control business operations and employee relations. It represents a shift back to a time when employment was “at will,” and the employers' “will” had few exceptions (Turnbull & Stowe, 2001).
In the cases that challenge the autonomy of the state, such as Kimel and Garrett, the Court interprets the 11th Amendment doctrine of state sovereign immunity to limit Congress' power to abrogate that immunity and to grant antidiscrimination rights to individuals whose traits (such as age and disability) make them especially subject to employment-related discrimination. Only in Lawrence and Troxel, where the state overreaches its authority by attempting to extend its influence into the family and the home, traditional havens of individual and family autonomy, does the Court limit its actions.
Yet if the general rule used by the Court to decide these cases is a presumption in favor of preserving traditional areas of autonomy for states and private businesses, Lane, Hibbs, and Martin seem to stand as hard-to-explain exceptions to the general rule. Lane and Hibbs favor certain individual claims against the state, and Martin requires employer autonomy to give way to the concept of reasonable accommodation. What basis does the Court use in making these exceptions? What elements are present, what rationales are applied, that overcome the traditional autonomy of the state and private businesses in Lane, Hibbs, and Martin?
The primary answer to this question seems to take us back to the Court's discussion of rights and the standard of review in Cleburne. As the Court in Cleburne explains, not all rights and not all state action warrant the same level of judicial scrutiny. State actions that discriminate against suspect and quasi-suspect classes are subject to heightened scrutiny, and, when fundamental rights are at issue (such as the “liberty” interest in Lawrence), the Court reviews the state's actions more closely than when other rights are at issue, asking whether the state's actions are necessarily related to a compelling state interest and whether the state has narrowly tailored its action to support that interest. Although it is a federal action, namely, the abrogation of state sovereign immunity, that is at work in both Hibbs and Lane, the Court draws upon the concept of heightened scrutiny to determine both cases; heightened scrutiny, in fact, proves to be the key difference between Kimel and Hibbs and between Garrett and Lane.
In all four cases—Kimel, Hibbs, Garrett, and Lane—the Court's decision largely hinges on its review of the legislative history, the record of discrimination set forth by the Congress, as its justification for abrogating state sovereign immunity. In Kimel and Garrett, the Court rejects the congressional findings of discrimination; in Hibbs and Lane, the Court accepts them. The legislative history in Kimel and in Garrett insufficiently document the alleged pattern of state discrimination required for Congress to have the power under the 14th Amendment to abrogate state sovereign immunity. In Hibbs and Lane, the legislative history of state discrimination is sufficient. The Court in Nevada v. Hibbs (2003) discusses one reason, arguably the main reason, for these disparate holdings:
We reached the opposite conclusion in Garrett and Kimel [than now in Hibbs]. In those cases, the §5 legislation under review responded to a purported tendency of state officials to make age- or disability-based distinctions. Under our equal protection case law … in order to impugn the constitutionality of state discrimination against the disabled or the elderly, Congress must identify … a “widespread pattern” of irrational reliance on such criteria. Because the standard for demonstrating the constitutionality of a gender-based classification is more difficult … it was easier for Congress to show a pattern of state constitutional violations. (p. 733)
In other words, the Court increases the level of deference it extends to Congress' legislative findings when the people the legislation seeks to protect are members of a suspect or quasi-suspect class and, thus, are deserving of a higher level of judicial scrutiny. When the Court is reviewing the congressional record, then, a heightened level of scrutiny acts almost like a presumption in favor of the legislative findings of discrimination. For example, the legislative history might contain accounts of gender discrimination by state agencies. Because women are a quasi-suspect class and state actions that treat them differently would normally be reviewed under a heightened level of scrutiny, the Court accepts the validity of the accounts of discrimination, as it did in Hibbs. By contrast, the Court may assume that accounts of age and disability discrimination in the legislative history are invalid, as it did in Kimel and Garrett, because the state need only have a rational basis for the different treatment.
In Hibbs, employees triumph over the employer because the Court applied the doctrine of judicial scrutiny to the legislative history of the Family and Medical Leave Act (FMLA) and upheld the law as a valid means of protecting a quasi-suspect class of persons from discrimination. A similar application of the doctrine of judicial scrutiny was at work in Lane, where the Court held that T. II of the ADA is a valid exercise of Congress' authority to abrogate states' immunity when the states deny litigants with disabilities access to the courts, a fundamental right requiring heightened scrutiny. The Court distinguished Lane from Garrett in two ways, both of which involved the connection of T. II of the ADA to certain fundamental rights.
First, although the primary purpose of T. II and T. I alike is to prohibit state discrimination based on disability, the Court in Lane noted that Title II, unlike Title I, “also seeks to enforce a variety of other basic constitutional guarantees, infringements of which are subject to more searching judicial review.” As in Hibbs, the Court increased the level of deference that it was willing to extend to Congress' legislative findings because the instances of discrimination in the legislative history called for a heightened level of scrutiny. The reason is simple enough: Access to the courts is a fundamental right and, as with suspect classes, state action that impede the exercise of fundamental rights is subject to strict judicial scrutiny. Thus, it was easier for Congress to demonstrate T. II discrimination in Lane because of the presumptive validity of reported instances and pattern of discrimination than it was to demonstrate T. I discrimination in Garrett, which was saddled with the opposite presumption, namely, that the state actions in the legislative record were likely constitutional under the rational basis standard.
The Court, while applying an equal protection analysis to both T. I in Garrett and T. II in Lane, used a heightened standard of review for the legislative history in Lane instead of the rational basis standard applied to the legislative history in Garrett and in other constitutional equal protection cases involving disability. Yet, in applying the higher standard to instances in the legislative history that involve fundamental rights as well as discrimination, the Court also limited its holding to such situations. Although the Court ruled that the statute appropriately abrogated state sovereign immunity to address discrimination against people with disabilities, it did so only with respect to those instances in which a fundamental right as well as disability discrimination is at issue, a second difference distinguishing Lane from Garrett.
When determining whether the ADA is adequately “tailored” to the wrongs it seeks to remedy, the Court decided in Lane that “nothing in our case law requires us to consider Title II, with its wide variety of applications, as an undifferentiated whole.” By narrowing the congruence and proportionality test to T. II as it applies to the fundamental right of access to the courts, the Court was able to review the statute for whether it was a “narrowly targeted” and “proportionate” response to the history of state discrimination with respect to the fundamental right to judicial services of people with disabilities. Applying the high level of deference due whenever a fundamental right is at issue, the Court held that “because we find that Title II unquestionably is valid §5 legislation as it applies to the class of cases implicating the accessibility of judicial services, we need go no further.”
Although the Court's decision in Lane was positive, in that it supported the core concept of accountability and access to the courts for people with disabilities, its holding was narrow because the nature of the interest upon which the court based its decision—access to courts—was fundamental. Absent a fundamental interest, however, Lane will not protect people with disabilities from discrimination by the state. Indeed, given how clearly the Court rested its decision on the nature of the interest, Lane and Garrett invite states to challenge Title II abrogation as it applies to state services unrelated to a fundamental right. Because the legislative history of discriminatory actions unrelated to a fundamental right would not receive heightened scrutiny, it is likely that the Court would, as it did in Garrett, find the legislative history provided insufficient evidence of a pattern of discriminatory actions by the state necessary to support the power to abrogate state immunity.
Under the Court's jurisprudence, decisions made by businesses and state governments usually escape outside interference (federal disability law) unless a fundamental right is involved; but as the final exception to the Court's general autonomy rule, Martin shows that the Court's respect for business autonomy is not without limits. Why is Martin different? One explanation is that the Court believes the autonomy extended to the governance of traditional businesses is more worth preserving than is decision-making in the business of sports, limited as it is to entertainment activities and a relatively small number of participants. Simply put, the impact of Martin is arguably limited by the nature of the business involved, its uniqueness, and the small number of people affected by the ruling. The Court was, thus, less concerned with the precedential value of allowing this exception to business autonomy.
On the other hand, it certainly could be argued that the real legacy of the Martin case is that it requires businesses to at least individually consider the reasonableness of a request for accommodation. In the Martin case the PGA Tour “refused to review those records [of need for accommodation] or to waive its walking rule.” The Court's final statement of its holding suggests that this factor weighed significantly against the Tour. The Court said,
Congress intended that an entity like the PGA not only give individualized attention to the handful of requests that it might receive from talented but disabled athletes for a modification or waiver of a rule to allow them access to the competition, but also carefully weigh the purpose, as well as the letter, of the rule before determining that no accommodation would be tolerable. (p. 1252)
From this perspective, the Court was making an important distinction related to the way in which business autonomy is exercised. Although the Court will support the autonomy of businesses to make decisions (Sutton, Williams, US Airways, and Chevron), it does require that a significant decision-making process be involved. “Decisions” made without consideration of the request for accommodation for a particular individual suggest the existence of implicit blanket policies against providing accommodations—an outright rejection of ADA requirements. The Court does not support ignoring the requirements of federal law, and businesses must exercise their decision-making power in some defensible way if they expect the Court to recognize their autonomy in doing so.
Finally, it is worth noting that while Lawrence and Troxel preserve the traditional autonomy of the individual and the family congruent with the general rule that the Court is seeking to preserve traditional areas of autonomy for states, employers, and individuals, these two cases also involved the fundamental rights to liberty (Lawrence) and to raise children (Troxel). Traditional values and fundamental rights are thus inextricably linked, and when the individual's claim involves fundamental constitutional or traditional values, the constitutional and traditional values will prevail over the interests of the state, businesses, and others. Decisions to bar a person from economic opportunities (such as employment) are acceptable, but decisions to bar a person from the courts, or otherwise restrict their fundamental rights, are not.
Where, then, are decisions made in Our Town and who makes them? A large number of decisions are made in the boardrooms; these affect the economic opportunities of people with disabilities, which is to say that they affect the core concepts of antidiscrimination, integration, and productivity and contribution. A large number of decisions also are made in and about the bedrooms and family rooms, which is to say that they affect the core concepts of family integrity and unity and of privacy and confidentiality. Wherever the decisions are made, however, they may not bar citizens with disabilities from the courtrooms and the cloakrooms, which is to say that they advance the core concepts of accountability and empowerment and of participatory decision-making.
The route the Court takes to affirm the power of the occupants of boardrooms and bedrooms and to create access to courtrooms and cloakrooms relies on a balance-of-interests approach based on traditional distinctions between areas of individual, family, business, and state autonomy. The Court now breathes new life into these ancient doctrines (of balancing comparative rights of individuals, families, businesses, and state governments) and thereby delineates the comparative rights of people with disabilities with respect to their state governments, private businesses, and other members of Our Town.
In delineating these comparative rights and competing equities, the Court is rebalancing the relationships between people with disabilities and others in America, fashioning a somewhat smaller space for those with disabilities in some aspects of their lives (boardrooms and economics), preserving their newly enfranchised roles in other aspects (courtrooms and cloak-rooms and access to the political process), and affirming and somewhat enlarging their roles as family members (privacy and bedrooms).
There are two aspects of these cases that deserve mention. The first relates to the Court's theory of remission to majoritarian processes. The second relates to the Court's concern with interpersonal relationships.
As to the first: By delineating the comparative rights of those with and those without disabilities, however, the Court is compelling these individuals to confront each other and to attempt to work out their differences—to devise their own reasonable accommodations—within the general guidance that the Court and Congress give. This approach, the compelled confrontation and remission to social mores and to the majoritarian processes of a democratic government (Burt, 1988), was foundational in Brown v. Topeka Board of Education (1954), the Court's pioneering school-desegregation case. There, the doctrine of desegregation “with all due deliberate speed” commanded citizens of different races and their elected representatives to find their own ways of being with each other, of finding their ways to a more inclusive and less prejudiced society. The Court left to those with and without disabilities, and to the political processes open to them, the means by which they would find their way through the bramble-bush of prejudice; eventually, of course, the Supreme Court and other courts fashioned legal remedies that arguably superseded the political processes, but they did so only after the political processes failed or were insufficiently responsive to the Court's commands. Fundamentally, however, the Court asked the citizenry to fashion means and remedies that were compatible with the common social mores and social intercourse and to do so through the political processes that were open to all (hence, the “courtrooms” and “cloakrooms” are so tightly regulated by the Court and the core concept of empowerment and participatory decision-making is so highly valued by it).
That compelled-confrontation approach undergirded the Court's decision in an institutional-prevention case, Parham v. J.R. (1979), in which the Court commanded states to use at least a quasi-judicial process for determining whether parents may admit their children to state institutions. In that case, the barricade to institutionalization was, in effect, a wall that kept people in their communities and families. By requiring neutrality in the admission-decision processes, the Court was, in effect, commanding those with and those without disabilities to confront each other around the issue of disability discrimination and integration/ inclusion, just as it compelled other citizens to do so around racial discrimination and integration (in Brown).
What appears, then, from the Court's cases, as we have analyzed them above, is that the Court again resorts to the compelled-confrontation approach that it has used in race and disability cases in the past; in compelling the confrontation, it also asks the parties to use the democratic processes to resolve their differences. Thus, compelled confrontation rests on the theory of remission to the majoritarian processes of a democratic government (and justifies ADA's application to courtrooms and cloakrooms).
As to the second: The Court pays close attention to the relationships that those with and without disabilities (and divorced fathers and homosexual partners) have with each other and with others. The Court's attention to relationships is hardly new (Minow, 1990). The Court seems reluctant to command the nature of the relationships. Rather, it seems determined to safeguard and preserve those relationships that people themselves choose. In taking this approach, the Court acts consistently with its decisions about reproductive rights and with its thesis, expressed in the compelled-confrontation and remission doctrines, that it is best for people to fashion their own ways of being with each other, so long as laws do not impede them from doing so.
In the cases we have analyzed, then, we see not just a return to one particular kind of America (“Our Town as we remember it”) but also an affirmation that there are limits on judicial power (the limits being expressed by the compelled-confrontation and relationship-fostering approaches) and that the power to shape Our Town belongs not with the courts but with the people themselves. The Court's reverie for the past is really a reverie for cordial, civil relationships, something that, it seems, the Court arguably believes are increasingly scant in today's America.
Authors: Matthew J. Stowe, JD, H. Rutherford Turnbull, III, LLM (firstname.lastname@example.org), and Chad Sublet, MSW, Beach Center on Disability, The University of Kansas, Lawrence, KS 66045-7534