Court hears arguments in disabilities lawsuit

From: Kansas City Star, MO - Jan 13, 2004

By STEPHEN HENDERSON Knight Ridder Newspapers

WASHINGTON - The Supreme Court heard arguments Tuesday in a case that could void a key provision of the Americans with Disabilities Act, as advocates for people with disabilities worried that the justices' previous rulings - as well as their own ADA practices - don't bode well for their cause.

Marca Bristo, a former chair of the National Council on Disabilities who uses a wheelchair, remembers being told to wheel herself off to the side of the nation's highest court during a 2001 hearing. John Stanton, a deaf lawyer who doesn't know sign language, was told that his real-time transcription device wasn't allowed in the austere, marble-lined courtroom. Jeff Rosen, legal counsel at the American Council on Disabilities, was hassled by court marshals, who said his sign-language interpreter might distract the justices.

"They have a segregationist attitude in their courtroom," said Rosen, who chose not to attend Tuesday's hearing because he said he didn't want to confront the situation again. "Together with their opinions, which have continuously narrowed the ADA since it was passed, I think it shows that they really don't understand these issues."

The court has a policy to accommodate anyone with a disability who needs to participate in or wants to watch court proceedings, said spokeswoman Kathy Arberg, and it's permitted everything from guide dogs to interpreters. The building is equipped with listening systems for the hearing-impaired, and has wheelchairs available for those who need them.

As a long-standing constitutional protection, however, the federal courts are exempt from laws passed by Congress, including the ADA.

At Tuesday's hearing, several observers with disabilities filled the courtroom with wheelchairs and other devices to assist themselves; no one was shuffled off to the side or crowded into the back of the courtroom.

But Rosen said at least one deaf guest was told initially that she couldn't bring her transcription device, and got it approved only after a lawyer called the court's marshals.

"If it were someone else, who didn't have access to a lawyer to advocate for them, they might get squashed," he said. "That's not fair."

Tuesday's case presented the justices with an opportunity to rule on whether states can be sued when they fail to provide access to government buildings for people with disabilities.

George Lane, a paraplegic, crawled up the stairs of a small-town Tennessee courthouse because it didn't have an elevator. He refused to be carried, and said his unassisted trip to the second-floor courtroom was humiliating. He sued, seeking as much as $100,000 in damages from a violation of the ADA.

The state says it does have an obligation to provide access, and that Congress can enforce that obligation through the ADA. But lawyers for Tennessee said Congress over-reached when it defined accessibility to government services as a constitutional right that can inspire suits for damages.

Lane's lawyers told the justices Tuesday that an elevator was as fundamental to a person with a disability as a set of stairs was to someone who could walk. "It's the way I get there," William Brown told the court, noting that people have a constitutional right to access courts, polling places and other government buildings.

Lane is backed by the federal government and scores of disability groups. Seven other states have sided with Tennessee.

The case marks a convergence of two court trends: The justices have limited the ADA's enforceability significantly in several opinions, and they've established a pattern of limiting the effect of federal legislation on states.

The justices appeared split Tuesday over whether to decide the case on the specifics or to make a broader statement about states' rights to be free of federal interference. They gave little indication in their questioning about how they might rule.

Advocates aren't hopeful.

"There has been a real disconnect between the sensibility that Congress had when it passed the ADA and where a majority of justices stand on the issue," said Andy Imparato, the president of the American Association of People with Disabilities. "If anything, the majority sees these as luxury issues, not core civil rights issues. That's what explains some of their opinions, as well as some of the access issues at the court itself."

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