DISABILITIES ACT Issue of accessibility suits divides Supreme Court

A lawyer for Tennessee said constitutional rights weren't violated.
CHICAGO TRIBUNE
WASHINGTON -- Taking up a case that may determine the scope of a landmark federal disabilities law, Supreme Court justices appeared to be deeply divided Tuesday on whether people with disabilities have a right to sue states for failing to make courthouses and other public buildings accessible for all.
A lawyer for several people with disabilities sued the state of Tennessee over access to its courthouses told the justices the case will determine whether people who are disabled can participate fully in society or whether they will be excluded from exercising basic constitutional rights.
"We as individuals have a right to be there where our government works and where it operates," attorney William Brown told the justices on behalf of his clients, who are seeking to hold the state liable under the Americans with Disabilities Act for failing to make its courthouses accessible to those who are disabled.
Was there a violation?
But a lawyer for the state argued that Congress, in passing the Americans with Disabilities Act, had no authority to subject the states to such lawsuits, which seek monetary damages. He said the states had not violated the constitutional rights of people with disabilities.
"There's not a single case in a single jurisdiction [illustrating] access to the courts was denied as a result of architectural barriers in courthouses," argued Tennessee Solicitor General Michael Moore.
The case raises complex legal issues concerning Congress' power over the states -- an area of law that has produced deep divisions among the justices. In recent terms, the five conservative justices have gradually scaled back Congress' authority to subject states to lawsuits for violating several anti-discrimination laws.
In Tuesday's case, they must decide whether Congress had authority to subject states to private lawsuits for money damages for failing to make courthouses or other public buildings accessible.
How it came about
The case came about after a group of people who are disabled sued Tennessee, arguing the state must be held liable for violating provisions of the ADA that prohibit discrimination in public goods, services and accommodations.
"Surely today, in the year 2004, Congress has the power to ensure that we, as individuals, have all the rights of citizenship," Brown told the justices.
A lawyer for the Bush administration also urged the court to allow the lawsuits against the states.
The two justices whose votes have been considered critical in this area, Justices Sandra Day O'Connor and Anthony Kennedy, did not clearly indicate their views of the case. Justice Kennedy appeared disturbed by allegations that states had not fully complied with the ADA, suggesting he may be inclined to rule against them in this case.
Justice O'Connor also was largely silent during the argument. She asked whether state laws would allow private lawsuits if the court concluded that the ADA did not.
Moore said no, but later added that Tennessee acknowledged it must comply with the federal law. It simply could not be sued for money damages, he argued, for reportedly failing to do so.
Justices' views
Several of the justices indicated they believed Congress had gone too far. Justice Antonin Scalia was the most aggressive in suggesting that Congress lacked authority to subject states to those kinds of lawsuits.
"Congress does not, everywhere, possess power to subject states to lawsuits," Justice Scalia said during the argument.
He said there were other ways to make Tennessee comply with the ADA, including a lawsuit by the federal government. A person with disabilities also could sue a state official, seeking a court order that it make the courthouse accessible, he noted.
But Brown said those options were insufficient to force Tennessee to comply with the law.