Post Date: December 3, 2003

Assistant Professor Samuel Bagenstos is writing the plaintiff’s brief for a case scheduled to be heard before the Supreme Court this term, in which the state of Tennessee is challenging the Americans with Disabilities Act’s requirement that people with disabilities have access to state facilities. Bagenstos, who has worked on two other ADA cases heard by the court, describes how he got involved, how the law is evolving and what’s at stake.

How did you first get involved in this work?

I was a lawyer in the Department of Justice in the civil rights division, working mostly on voting rights cases, actually. I became interested in the ADA, in part, because it was a new statute; there were a lot of cases coming up, and it was a chance to do interesting arguments in the courts of appeals. Then I became very interested in the kinds of issues that they raised. It seemed to me that disability discrimination was at once very similar to discrimination on the basis of race and sex, but at the same time very different, in part, because everybody purports to be in favor of people with disabilities. The ADA passed Congress overwhelmingly at a time when the Civil Rights Act of 1991 was struggling to get through. And yet, I think a lot of the support for [the ADA] was very shallow. Everybody says they’re in favor of it, but when the rubber meets the road, there’s still a lot of resistance to even avoiding discrimination against people with disabilities, much less providing accommodation to them.

How does the evolution of the enforcement of the ADA differ from that of other civil rights legislation?

Well, after the Civil Rights Act of 1964, the most well-known civil rights statute, there was a period of about 10 years when there was really effective enforcement, expansive interpretation of that statute by the federal courts including the Supreme Court, and a lot of results. The ADA hasn’t had that. Since the ADA was adopted in 1990, the Supreme Court decisions interpreting it have narrowed the statute substantially, and the results of the implementation of the statute have not been that significant. If you look at the rate of nonemployment of people with disabilities, it remained roughly constant throughout the 1990s even though the ADA was adopted, and the economy was booming. I think that’s due, in part, to limitations on the enforcement of the ADA and, in part, to the need for additional interventions to provide employment for this group of people, but it’s a very different evolution.

Is it also true that in nine out of 10 ADA lawsuits, the employer wins?

I think that’s the right number. The studies that I’ve read about this say that in ADA employment discrimination lawsuits, the plaintiffs have the second-highest failure rate of any class of cases in the federal court system, second only to prisoner plaintiffs who lose overwhelmingly. So, yes, the courts have rejected 90 percent of ADA cases. There’s been a fair amount of litigation under the ADA, but at least in the employment area, the courts have overwhelmingly ruled for defendants.

In oral arguments, Supreme Court Justice Sandra Day O’Connor asked whether the ADA isn’t supposed to focus on “the wheelchair-bound,” as opposed to those who suffer from carpal tunnel syndrome or bad backs. Who do you think should be covered and why?

Well, that’s a very difficult question, and it is a question the Supreme Court has now decided something like five cases on. I guess in my view, the statute, as written, is much more expansive than simply covering people who use wheelchairs. It covers people who have conditions that do in fact limit their ability to perform functions in society, or are regarded by significant chunks of people in society as limiting their ability to perform significant functions in society. And so I would read the statute as extending to anyone who has a condition that either is so limiting or is sufficiently stigmatized in society that it results in people being deprived of significant opportunities. The court has read the statute more narrowly than that, I think it’s fair to say.

And what about the interests of the employer?

That’s the interest on the other side that makes it difficult to pass legislation that would undo some of the narrow interpretations of the statute. You know, the Supreme Court hasn’t done anything that I think can obviously be described as eliminating or gutting the ADA. They’ve substantially rolled back the coverage of the statute with a narrow reading of what is “disability.” And they’ve said that the statute can’t constitutionally be applied to states in certain circumstances, but that really involves only a relatively narrow issue under the statute, and so, unless the Supreme Court actually does something that can plausibly be said to be gutting or eliminating the ADA, it will be very hard to overcome the concerns of potential defendants in these cases: business interests, local governments, who, frankly, would be forced to spend money to provide accommodations for people with disabilities.

In the case you’re working on now, a paraplegic man sued after he had to drag himself up the stairs of a state courthouse to attend his own arraignment. What’s at stake in this case?

It involves an incredibly important issue. What the court will decide in this case might well be the gutting of the ADA. What could be at stake could be Title II, which is the part of the ADA that applies to state and local governments. It applies to issues like whether people with disabilities can vote, whether they can attend court, serve on juries, whether they can have education in an equal way, and whether they can have equal access to everything that state and local governments do. That title is being challenged as exceeding Congress’ 14th Amendment power. If the Supreme Court were to rule that Congress lacked the power under the 14th Amendment to enact that title of the ADA, then that would potentially eliminate a huge portion of the ADA’s protections. It might be possible to justify Title II under some other congressional power, but there’s no guarantee the court would see it that way. And this is the next case in line in the Supreme Court’s series of federalism cases, which have, in various ways, limited the enforcement of different civil rights statutes, with one notable exception from last year.

Do you ever worry that in an instance like this, an appeal could do more harm than good?

Well, I think that’s always a concern in the Supreme Court these days. I think that the track record of the plaintiffs in the ADA context, in particular in the Supreme Court, is obviously very bad, and whenever someone calls me and suggests that I work on a cert petition to bring a case to the Supreme Court, I always talk to them about whether it’s the kind of case that the Supreme Court’s likely to be sympathetic to. But in this case, it was the state that brought the case to the Supreme Court. The plaintiffs brought the case in the lower courts, but they brought the case because they were denied access to courthouses in their state. If this statute’s going to mean anything, they have to be able to bring lawsuits like that.