Threat to People with Disabilities

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Alert A Threat to People with Disabilities

(November 13, 2005) Samuel Alito, President Bush’s nominee to replace Justice

Sandra Day O’Connor on the Supreme Court, poses a serious threat to people with

disabilities. Having sat on a federal court of appeals for 15 years, Judge Alito

has a record of decisions hostile to disability rights.

If Judge Alito replaces Justice O’Connor:

1. The Supreme Court Might Strike Down Disability Rights Statutes

 

Judge Alito has a troubling view of Congress’ power to pass civil rights laws.

His vote could place in jeopardy the Americans with Disabilities Act (ADA),

Section 504 of the Rehabilitation Act, the Fair Housing Amendments Act, the

Family and Medical Leave Act (FMLA), the Individuals with Disabilities Education

Act (IDEA) and other disability rights statutes.

 

Justice O’Connor was often the deciding vote in cases about Congress’ power. If

Judge Alito is confirmed, there is every reason to expect that important

decisions about Congress’ power will come out differently. He would likely

become a critical fifth vote to strike down portions of disability rights laws

as unconstitutional.

 

On the federal appeals court, Judge Alito:

 

Ruled that Congress lacked power to enact the FMLA.1 Later, in a similar

case, the Supreme Court came to the opposite result.2 It rejected Judge Alito’s

reasoning that the FMLA was not an appropriate response to discrimination.

 

Dissented when the federal appeals court upheld Congress’ power to ban

possession of machine guns.3 His reasoning rejected over 60 years of case law

regarding Congress’ power to regulate interstate commerce. 4

 

It is critical that the new Supreme Court justice be someone who will respect

Congress’ authority to enact needed protections for people with disabilities.

 

2. Olmstead May Be at Risk

 

Before the Supreme Court decided Olmstead, upholding the integration mandate

of the ADA, the appeals court on which Judge Alito sat decided a similar case,

Helen L. v. DiDario.5 A three-judge panel of the court (appellate cases are

normally decided by three judges) decided that the ADA outlawed unnecessary

institutionalization. The state of Pennsylvania, which lost the case, asked all

the judges of the court (not just the three that issued the decision) to

reconsider and reverse the ruling. Fortunately, the circuit court refused to do

so. But Judge Alito had voted to rehear the case, presumably because he wanted

the decision to go the other way. We need a friend of Olmstead on the Supreme

Court, not someone who may have antipathy to it.

 

3. Rights Enforcement Would Be Further Eroded

 

In Sabree v. Houstoun, 6 Judge Alito questioned court rulings that allow

individuals who have been denied services under Medicaid to sue to enforce their

rights. He noted that these rulings were “currently binding precedent” but

expressed discomfort with them.

 

Judge Alito joined a decision that prevented individuals with disabilities

and the disability rights group ADAPT from suing the Department of Housing and

Urban Development (HUD) for failing to enforce its regulations concerning

accessible housing. ADAPT v. United States Dep’t of Housing & Urban Development.

7 HUD had not fulfilled its duty to ensure that multi-family housing was

accessible to people with disabilities. It had also failed to investigate

complaints of inaccessible housing and take enforcement action, although HUD

officials had acknowledged widespread compliance problems. A later decision, in

which Judge Alito was not involved, also barred people with disabilities from

suing local housing authorities to solve the problem. 8

 

Judge Alito joined a decision allowing the National Board of Medical

Examiners to flag the test scores of individuals who received accommodations on

their medical licensing exams due to their disabilities.9 The plaintiff claimed

that the medical board’s practice subjected him to possible discrimination in

internship and residency programs. The court ruled that flagging was not

discrimination because the ADA does not specifically bar it. The decision

reflects a misunderstanding of and hostility to the ADA.

 

Judge Alito joined a decision allowing an employer to fire an employee who

had been hospitalized for three weeks due to depression and a sleep disorder.10

Joining a decision that reflects hostility to people with disabilities, Judge

Alito said the employee was not protected by the ADA or the FMLA.

 

Judge Alito joined a decision seriously weakening the protections of the Fair

Housing Act. He excused local zoning boards from engaging in a process to

identify reasonable accommodations needed to provide equal access for people

with disabilities.11

 

Judge Alito dissented in a case where the majority of the court found that a

medical student was entitled to a trial on her claims challenging her school’s

failure to make accommodations for her back injury. The majority severely

criticized Judge Alito’s analysis and stated that “few if any Rehabilitation Act

cases would survive summary judgment if such an analysis were applied to each

handicapped individual’s request for accommodations.” 12

 

Conclusion

 

These are highlights of a long and troubling record. While Judge Alito has

written and joined some positive decisions, overall his nomination to the

Supreme Court is a threat to people with disabilities. On the Supreme Court, his

decisions would almost surely result in a range of restrictions on the hard-won

rights of people with disabilities.

 

1. Chittister v. Department of Community & Economic Development, 226 F.3d 223

(3d Cir.

2000).

 

2. Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003).

 

3. United States v. Rybar, 103 F.3d 273, 286-94 (Alito, J., dissenting).

 

4. The Supreme Court’s recent decision in another case squarely rejects the

reasoning of Alito’s

dissent in the gun possession case. See Gonzales v. Raich, 125 S.Ct. 2195

(2005).

 

5. 46 F.3d 325 (3d Cir. 1995).

 

6. 367 F.3d 180 (3d Cir. 2003).

 

7. 170 F.3d 381 (3d Cir. 1999).

 

8. Three Rivers Center for Independent Living v. Housing Authority of

Pittsburgh, 382 F.3d 412

(3d Cir. 2004).

 

9. Doe v. National Board of Medical Examiners, 199 F.3d 146 (3d Cir. 1999).

 

10. Katekovich v. Team Rent A Car of Pittsburgh, Inc., 36 Fed. Appx. 688 (3d

Cir. 2002).

 

11. Lapid Laurel, L.L.C. v. Zoning Board of Adjustment of Scotch Plains, 284

F.3d 442 (3d Cir.

2002).

 

12. Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1387 n.13 (3d

Cir. 1991).

 

 

 

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A Threat to People

 

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