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January 14, 2004

Rights of disabled and states loom large in high court case

From: Philadelphia Inquirer, PA - Jan 14, 2004

By Stephen Henderson
Inquirer Washington Bureau

WASHINGTON - The Supreme Court heard arguments yesterday in a case that could void a key provision of the Americans With Disabilities Act, as advocates for people with disabilities worried that the court's previous rulings - as well as its own practices - do not bode well for their cause.

The case, Tennessee v. Lane, gives the justices an opportunity to rule on whether states can be sued when they fail to provide access to government buildings for people with disabilities. The federal courts, however, as a long-standing constitutional protection, are exempt from laws passed by Congress, including the ADA.

Marca Bristo, a former leader of the National Council on Disability who uses a wheelchair, remembers being told to wheel herself off to the side of the high court during a 2001 hearing. John Stanton, a deaf lawyer who does not know sign language, was told that his real-time transcription device was not allowed in the austere, marble-lined courtroom. Jeff Rosen, legal counsel at the disability council, 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 yesterday's hearing, saying he did not 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 has permitted everything from guide dogs to interpreters. The building is equipped with listening systems for the hearing-impaired and has wheelchairs available.

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

Rosen said at least one deaf guest was told initially that she could not bring in 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."

The case argued yesterday arose after George Lane, a paraplegic, crawled up the stairs of a small-town Tennessee courthouse because it lacked 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 that it does have an obligation to provide access, and that Congress can enforce that obligation through the ADA. But attorneys for Tennessee said Congress overreached when it defined accessibility to government services as a constitutional right that can inspire suits for damages.

Lane's attorneys told the justices yesterday that an elevator was as fundamental to a person with a disability as a set of stairs was to someone who can walk. "It's the way I get there," lawyer William Brown told the court, noting that people had 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 have established a pattern of limiting the effect of federal legislation on states.

The justices appeared split yesterday over whether to decide Lane's case on the specifics or to make a broader statement about states' right to be free of federal interference. Their questioning provided little indication about how they might rule. A decision is expected by the end of June.

Advocates were not 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, 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."

Contact reporter Stephen Henderson at 202-383-6003

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