THE SUPREME COURT'S GARRETT DECISION, THE AMERICANS WITH DISABILITIES ACT, AND BUSH V. GORE

In lockstep with its previous federalism rulings, the Supreme Court held last week in Board of Trustees of Alabama v. Garrett, that private individuals cannot sue the states for damages pursuant to the Americans with Disabilities Act.

True to form, the press treated the decision as though federalism were some pesky detail the five-member majority just would not forget, and focused the media spotlight on disability rights advocates' criticisms of the Court.

Truth be told, criticism of the decision fails to grasp its minimal impact. And comparisons between Garrett and Bush v. Gore miss the mark.

The majority and dissent in Garrett differed on whether the Congress had before it a record of widespread and persisting constitutional violations by the states. This type of record is necessary to justify any federal statute enacted pursuant to Section 5 of the Fourteenth Amendment that renders otherwise-legal actions by the states illegal. Thus, before the Court could find that the ADA applied to the states, it would have had to find a record of violations meeting this standard.

The majority was right about the record. And the majority's result was also right, even assuming for purposes of argument that the dissent was right about the record's satisfying the constitutional test.

The result was right for a separate, independent reason (making the lengthy appendix of anecdotes at the end of the dissent moot). Even if a federal statute is supported by a record of discrimination meeting the constitutional standard, that statute must still provide a remedy proportional to the record on which it is based. The ADA, if applied to the states, is disproportional to the record of state constitutional violations—and therefore would have violated the Constitution's inherent principles of federalism.

The criticism of Garrett is misguided not only because the decision was right for two separate reasons, but also because it will have little effect.

The impact of the decision is negligible in light of the arcane twists and turns of the Eleventh Amendment doctrine that renders states immune, in some instances, to damage actions by private citizens. True, after Garrett, private citizens will not be able to sue a state for damages under the ADA, but they will continue to be able to sue cities and counties, as the Court notes. Despite Garrett, they may still obtain injunctive relief against the states, which the Court also noted.

Citizens may also have their rights vindicated, and may collect damages, through state disabilities rights law, or through enforcement by the Department of Justice (which is not hampered by the Eleventh Amendment's proscriptions). Finally, the states, if they choose, can waive the immunity the Garrett decision recognized, making it possible for citizens to sue the state for damages under the ADA after all.

For all these reasons, the effect of Garrett on disability discrimination plaintiffs is quite limited. And in the future, it is likely to be even more limited. The disability lobby is cohesive, organized, and effective, with few politicians on either side of the political spectrum willing to criticize a disabilities rights scheme, even if it is more expensive and burdensome on the states than it need be. Lobbying surely will follow Garrett, either to pressure the states to waive their immunity and/or to pressure the federal government to enforce the ADA more vigorously.

It goes without saying that invidious discrimination against the disabled is immoral and unconstitutional. But the ADA regulations are rife with ridiculous and onerous requirements; rather than following the "reasonable accommodation" language of the statute, the regulations compel unreasonable, mandatory one-size-fits-all accommodation. Given the political clout of the disabled, and the fact that there is more than one way to make the world more hospitable for those with disabilities, the states should be given some latitude to work out truly "reasonable" accommodation.

Some charge that the conservative members of the Court have been hardhearted to the disabled in Garrett but softheaded to the President in Bush v. Gore. But that is comparing apples with oranges. Both addressed Fourteenth Amendment issues, but that is where the similarity ends.

Garrett touched on an area of Fourteenth Amendment jurisprudence that requires courts to subject states' actions only to low level scrutiny. Disabled persons are not a "suspect class," and therefore classifications based on disability are subject to low level scrutiny — which makes sense because, at times, treating the disabled differently may be the wise choice. (For example, separating the physically weak from the predatory and strong in prisons makes sense, as do certain employment requirements.)

In contrast, Bush v. Gore involved an area of Fourteenth Amendment jurisprudence that requires courts to subject states' actions to the highest level of scrutiny. That is because the right to vote is fundamental; there are few scenarios where the government should be able to justify infringing the right.

The issue of federalism also fails to be the same in the two cases. In Garrett, the Court applied the principle that when Congress exercises its power to directly regulate the states under Section 5, that it must do so with some care. It is not that Congress may not make such law, but rather that it does not have carte blanche, especially when the content of its holding has the potential to alter the constitutional balance in a way that is, in fact, a majority-vote amendment of the Constitution. In Bush v. Gore, seven members of the Court did not defer to the state, because the states are unquestionably subservient to fundamental rights.

The only real link between Garrett and Bush v. Gore is the press's left-biased coverage. The mainstream press has felt perfectly at home castigating the conservative majority of the Court in both cases, under the guise of reporting. However, it has been disinclined to bring to light the facts that might make both opinions more palatable to the average citizen — such as, for example, the fact of the disability lobby's impressive political power, which is likely to make Garrett obsolete, and the narrowness of the opinion's impact.

Nor has the press stressed the fact that according to a recount by a reputable accounting firm for the Miami Herald and Knight Ridder, even applying the laxest standards possible in favor of Al Gore, Gore simply did not receive more votes than George Bush in the four Florida counties whose tallies he challenged.

Bush won the Electoral College no matter how you slice it, and that should have been big news, given Democrats' frequent claims of a stolen election and an illegitimate Court. But though this story appeared in Knight Ridder papers, it was buried in The New York Times — which reported it a day late, ran it on page A21 (the last page before the editorial page), and ignored it in its own editorials.

While Bush v. Gore's reasoning may be debated, it is impossible to doubt the relevance of this new factual information to the recent controversy about the decision and the Court's legitimacy. Nevertheless, because of incomplete reportage, the American public continues to be misinformed about the Court, its motives, and its wisdom.