First I’d appreciate it if commenters would *not* respond to this post directly…either send me an email through the link, or to my regular email if you know it.
I’m among the ranks of the fulltime gainfully employed beginning Monday. (Pending a clear backround check The offer has been made and I have accepted.) Due to so much concern regarding blogging getting one in trouble, I’ll not be saying anything else about my employer, either good or bad. .
Via ADA watch:
“Narrowing the Protections of the ADA
In Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002), Roberts successfully argued to the Supreme Court that a woman who had developed severe bilateral carpal tunnel syndrome and tendinitis from working on the assembly line at an auto manufacturing plant could not prevail in a suit against her employer for failing to accommodate her disability. Roberts argued that she was not a person with a disability because she was not sufficiently limited in major life activities outside of her job. Roberts’ brief greatly distorted the extent of the woman’s limitations. As a result of Roberts’ advocacy, the Supreme Court held that the test for coverage under the ADA is a narrow one that must be strictly applied, and it articulated a more stringent test than the test set forth in the law itself.
Narrowing the Coverage of Section 504
In Grove City College v. Bell, 465 U.S. 555 (1984), the Supreme Court ruled that the antidiscrimination requirements of Title IX only applied to the admissions office of a college that accepted federal funds, not to the entire college. This decision applied equally to Section 504 of the Rehabilitation Act, which forbids discrimination based on disability by entities receiving federal funds. Several years later, Congress passed a law overturning this decision and requiring that when an institution accepts federal funds, the entire institution is subject to the requirements of Title IX, Title VI and Section 504. While various legislative proposals to correct Grove City were pending, John Roberts, then associate White House counsel, stated in an internal memorandum that the requirements of Title IX should apply only to the specific program receiving federal funds, and that the corrective legislation later passed by Congress would “radically expand the civil rights laws to areas of private conduct never before considered covered.” Had Roberts’ view prevailed, the antidiscrimination mandates of Section 504, Title VI and Title IX would apply to far fewer entities.
Limiting Enforcement of Medicaid and Other Rights
In Gonzaga University v. Doe, 536 U.S. 273 (2002), Roberts successfully argued before the Supreme Court for a restrictive test to determine whether laws may be privately enforced in court by the individuals they protect. In that case, the Supreme Court held that an individual could not go to court to enforce his rights under the Family Educational Rights and Privacy Act. This case has been used in numerous cases to defeat Medicaid recipients’ ability to enforce their rights under the Medicaid Act.
In Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990), Roberts filed a brief in the Supreme Court on behalf of the United States, as deputy Solicitor General, arguing that Medicaid rights were not privately enforceable. Fortunately, the Supreme Court rejected this argument, and the Wilder decision has been the basis for most cases in which courts have permitted Medicaid recipients to enforce their rights. This victory has been severely eroded by the Supreme Court’s subsequent ruling in Gonzaga, in which Roberts argued to limit private enforcement of statutes.
In Suter v. Artist M., 503 U.S. 347 (1992), Roberts successfully argued to the Supreme Court on behalf of the United States, as deputy Solicitor General, that children could not enforce their rights under the Adoption Assistance and Child Welfare Act to require states to make reasonable efforts to preserve and reunite their families. This decision has also been used to defeat individuals’ ability to enforce their rights under many other important statutes.
Limiting Remedies for Violations of Disability and Other Civil Rights Laws
In Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992), Roberts, as deputy Solicitor General, filed an amicus brief with the Supreme Court arguing for a restrictive view of what remedies are available under Title IX and civil rights statutes generally. The Supreme Court rejected Roberts’ arguments and held that absent a contrary indication from Congress, all appropriate remedies are available. The Franklin decision has been extremely important in ensuring that civil rights plaintiffs who prevail, including ADA and Section 504 plaintiffs, are able to obtain appropriate relief.
Narrowing Federal Education Law Protections for Students with Disabilities
In Board of Education v. Rowley, 458 U.S. 176 (1982), an 8-year-old student who was deaf sought to have a sign language interpreter provided to assist her in school. The trial court ruled that federal law required the state to provide an interpreter for her. The appeals court affirmed. Roberts, while at the Justice Department, wrote a memo to the Attorney General criticizing these decisions. Roberts stated that the “lower courts, in an exercise of judicial activism, used the vague statutory language to overrule the board and substitute their own judgment of appropriate educational policy.” Even the conservative Justice Department of that time disagreed with this view and filed a brief supporting the student. The Supreme Court held that the student was not entitled to an interpreter because she was benefiting from her school instruction and federal law did not require the state to maximize the potential of each student with a disability.
Restricting Congress’s Power to Pass Disability and Civil Rights Laws
In Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003), Roberts, sitting as a federal judge on the D.C. Circuit, dissented from a denial of en banc (full court) review in a case concerning Congress’ authority to apply the Endangered Species Act to protect an endangered species of toad. A panel of the court had held that this application of the Act was a constitutional exercise of Congress’ commerce power. The full court denied review. Roberts dissented, criticizing the panel’s view of the commerce power as too broad. Roberts would have held that the specific application of the Endangered Species Act to the arroyo toad, which lives only in California, did not implicate interstate commerce, and thus Congress had no power to regulate it.The commerce power is one of the bases for Congress’ passage of the ADA, and Roberts’ interpretation would have dramatic implications for the ability to enforce many important provisions of the ADA.
Fortunately, Roberts’ view of the Commerce Clause was subsequently rejected by the Supreme Court in Gonzales v. Raich, 125 S. Ct. 2195 (2005), in which the Court made clear that Congress’ commerce authority cannot be defeated by carving out a specific set of activities that are purely local, if these activities are part of a larger scheme regulating activities that substantially affect interstate commerce. However, Roberts’ presence on the Supreme Court could dramatically affect how the Court views Congress’ commerce authority in the future. “
one who went ‘Huh?’ when this communication came out from www.aapd.com
“September 23, 2005 Dear Senator:
We write on behalf of the American Association of People with Disabilities(AAPD) and the National Council on Independent Living (NCIL) to express ourserious concerns about the nomination of John G. Roberts Jr. to replace thelate William Rehnquist as Chief Justice of the Supreme Court of the UnitedStates.
Previously, we wrote to Senate Judiciary Committee members on September 1,2005 to urge that they closely scrutinize the record of Judge Roberts in the area of disability rights at his confirmation hearings. We appreciate the bipartisan efforts to obtain a deeper understanding of Judge Roberts views concerning the rights of persons with disabilities and the recourse available to persons with disabilities when they encounter discrimination. In particular, we appreciate:1) The attempts by Senator Feingold to obtain clarification about JudgeRoberts approach to issues around definition of disability in the Americanswith Disabilities Act (ADA);2) Efforts by Senators DeWine and Specter to impress upon Judge Roberts theimportance of not second-guessing Congresss prerogative to develop legislation to remedy discrimination, as the Supreme Court unfortunately did in the 5-4 University of Alabama v. Garrett decision. 3) Senator Kennedy’s efforts to ascertain Roberts views on the precedent established in Tennessee v. Lane and to impress upon him the importance ofthe courts affirming the civil rights of persons with disabilities.
However, a number of questions remain unanswered. Does Judge Roberts agree with Justice Clarence Thomas that the Individuals with Disabilities Education Act is not a civil rights law? To what degree will Judge Roberts grant deference to Congresss legislative findings, rather than treating our elected legislature like a subordinate court? Does Judge Roberts agree with or reject the Olmstead majority holding that reasonable accommodationis sometimes necessary to achieve equal opportunity? Why did JudgeRoberts consider the lower court decisions in favor of a deaf student in theRowley case to be examples of judicial activism, and does he continue tohold the attitudes towards disability rights litigation that he expressed inthe memos about the Rowley and Wyatt cases? After four days of hearings, westill dont have the answers.We remain deeply troubled by Judge Roberts record on access to justiceissues. If he insists that Congress needs to explicitly declare a right tosue, it would undermine the right of individuals to hold authorities accountable for violations of their civil rights under the Medicaid statute and other federal laws. We are disturbed by the fact that his interventionsin and comments about a number of civil rights cases tend to reflect a desire to restrict legal remedies under a wide range of civil rights laws.We are further concerned that his references to judicial modesty and restraint could actually suggest that he is reluctant to impose federalenforcement upon states for violating the civil rights of individuals with disabilities.However, we do note on the positive side that in WMATA v. Barbour, Judge Roberts cast the deciding vote in favor of a decision written by DC Circuit Judge Merrick Garland upholding the constitutionality of the Section 504 requirement that state entities receiving federal funding not discriminateagaint persons with disabilities under the Spending Clause. Though we have no assurance that he would rule the same way at the Supreme Court level, weare encouraged by his willingness to affirm the validity of Section 504 inthe Barbour case.”
Here comes the “cave” moment. What did the two signatories or their organizations gain by saying this?
“If Judge Roberts were still being nominated to replace Justice Sandra Day OConnor, a perennial swing vote on disability and civil rights cases, our concerns about his disability record would take on even greater weight. But this is not the case. Though we continue to harbor serious concerns andmisgivings about Judge Roberts, he is now being nominated to replace the late Chief Justice Rehnquist. Since replacing Chief Justice Rehnquist with Judge Roberts is unlikely to result in a decisive alteration in the SupremeCourts ideological balance, we have decided, after considerable deliberation, that our serious concerns do not rise to the level of opposing his nomination.As you decide your vote, we urge you to give serious consideration to our concerns about Judge Roberts views and record on disability rights. Thankyou.
But, over at ADA watch:
“So because Roberts’ represents “business as usual” from a Court that has repeatedly ignored the intent of Congress and greatly weakened the ADA, we should not oppose him?
And never mind that Roberts has declared that the Rehnquist Court – despite repeatedly narrowing the scope of the ADA and weakening the civil rights of millions of Americans with epilepsy, diabetes, and other disabilities – was “not conservative enough.”
As a community, it is when we act as advocates rather than political strategists that we are truest to our cause. We must expect the same from those organizations whose mission it is to give voice to our movement.
Deciding that we will give a nominee a pass because he is of the same mold as his predecessor is simply an endorsement of the status quo of a Court that has repeatedly undermined the rights of Americans with disabilities.
Our greatest strength is the bipartisan nature of the ADA. If we stay true to the vision and values of the ADA – rather than political strategy and posturing – we will fight a stronger fight.
Many of us hoped that this nomination – especially juxtaposed with the failings of our government in responding to the poor as well as people with disabilities in New Orleans – would create the opportunity to start a national dialogue about the role of government in creating equal opportunity for all.
Fortunately, many Senators – both Republicans and Democrats alike – used the Roberts hearings as an opportunity to speak out against the Rehnquist Court’s savaging of the Americans with Disabilities Act and other civil rights protections. Sadly, however, the majority of their votes did not match their rhetoric.
With so much at stake for people with disabilities, the passing of the torch from one ideologue to another is not the time for silence from our community.
So – again this is not your usual action alert – continue to contact your Senators. Tell them what we have already lost and what continues to be at stake for us. (Contact info at http://www.Congress.org)
Use this process as a time to educate Senate staffers about our issues and about what we are facing in the courts.
Oppose Roberts and use his record to demonstrate the crucial need for a more moderate nominee to replace Justice O’Connor.
Contact your national disability organizations. If they don’t take positions on judicial nominations, tell them to do so. (IRS rules show that taking positions on judicial nominations is no different than advocacy on legislation).
If they do take positions, tell them to ignore the political strategy games in Washington and to simply support nominees who support disability rights and oppose those who don’t. ” [italics mine]
Next post I’ll grab a distillation of his record from ADA Watch
awful…Over at No Pity a chef who should stick with cooking and let someone else do the interviewing.
Theres also some truthful discussion about “What happens if one disabled person does something “wrong,” ?”and the rest of the group is then viewed through the lens of that person’s mistake.
It makes for difficult job interviewing and retention.
In order to stem the overload of unbelievable real life twists and turns, and fend of some depression, I’m going to talk about the alternate universe of political television drama.
ABC has Commander In Chief on Tuesday nights, that the Barcalounger critics love. A VP steps into the presidency when the president has a stroke, and faces down a powerful, pushy speaker of the house, and learns to run the show on their own terms, while their spouse has to go through changes of their own.
Honestly, as written this doesn’t seem like a premise that would interest me more than a movie…About two hours worth of interesting that other, similar shows have already covered.
I’m not mentioning that one little detail, because in 2005, it shouldn’t matter. But that one little detail is the hook of the show, and the thing that has real life news outlets chattering uselessly today.
The VP who becomes president is a woman.
So the **** what????????!!!!!!!!!
Our closest ally, Britain, had a woman in charge years ago. Other countries have had women leaders…
The saddest thing is,they’ll be too busy making sissy jokes about the First Husband to say anything remotely good, positive or cool about depicting a Madame President.
My other similar longtime favorite The West Wing is in that state that even the best shows arrive at. It’s been alive too long. They know it, and are using the stunt story of two new candidates without revealing which will be victorious and aquire the Oval Office at the end of Bartlett’s second term.
Alan Alda as the Republican candidate (a pro choice, unchurched Republican) tries and often (sorry!) succeeds in creating a human, fully fleshed out, likeable guy who also happens to be brilliant. He’s buffed so shiny I hafta wear shades. (If only I could see some of this on the real Right…ah well..) [Note: I’m not saying it doesn’t exist on the Right. I just want to *see* it] We haven’t seen either candidate cave to special interests yet or display some moral weakness …
Jimmy Smits hasn’t been given enough to do yet to show the depth of his character, the young intense committed Democrat with education and healthcare plans.
And part of me doesn’t care to watch either candidate because I’m already suffering from Bartlett withdrawal. Martin Sheen’s character will either receede into the role of elder statesman, or dissapear altogether come January. He and his original staff, played by Alison Janney, Richard Schiff, John Spencer, and Bradley Witford have been able to maintain the shows best subtext [Smart people are *COOL*] even with the noticeable downtick in writing quality when the original creator Aaron Sorkin left and John Wells took over.
So either Smits or Alda will preside over the show’s eventual end…But I may be too busy missing Martin Sheen’s work to care.
Let’s see if the imaginary politicians on both shows can begin or continue the process of occasionaly forgetting they are fluff and say something that the audience wants said…