Review of the United States Supreme Court Decision in the Board of Trustees of Alabama vs. Garrett Presented by Vinh Nguyen, JD, MBA July 10, 2002 Rachel: Good afternoon everybody. And welcome to the Web cast on the power of Title II of the ADA after the Garrett decision. This Web cast today is the first in a three-part series about the legal avenues, which are open to people with disabilities who wish to pursue claims of discrimination by state. My name is Rachel Kosoy, I'm at the Disability Law Resource Project, DLRP, here at ILRU and we're your host for today's program and some of you might know us by our former name, which is the DBTAC, Disability and Business and Technical Assistance Center. Before we get started, bear with me for a minute. I just want to recognize the sponsors of this program and review a couple of technical details. Today's activity is a result of and is funded by the commitment of NIDRR, National Institute for Disability and Rehabilitation Research through their commitment to make research and information readily accessible to all the people who really have a stake in the information. NIDRR funds the Disability Law Resource Project, who is your host for this program today. And just quickly, a few technical things: If anybody out there encounters any problems during the Web cast, there are a couple of ways you can get in touch with us. You can call in for technical assistance at 713-520-0232. Or you can e-mail us at Webcast@ilru.org. The second thing is we're going to be taking questions during the Web cast. So if you would like to ask a question during the Web cast, you can go ahead and e-mail it to us. If you look at the bottom of your RealPlayer screen, there should be a link there that you can click onto submit a question or you can go ahead and send it to our e-mail address, Webcast@ilru.org. Now, I'd like to introduce your speakers for today. The format for today's Web cast will really be more like a conversation between two attorneys rather than a straight lecture. Vinh Nguyen, the author of the material, which you've previewed, will be speaking today with Aaron McCullough. Vinh and Aaron are both attorneys serving on the legal staff here at the DLRP. So let me tell you a little bit about each of them before I turn it over to them. Vinh researches for and produces material on various disability law issues and he oversees legal related portions of the ILRU website. Vinh earned his law degree and his MBA from the University of Houston and he's a member of the State Bar of Texas. He concentrated his undergrad studies in psychology at McGill University, which is located in lovely Montreal, Canada, and Vinh is a proud member of the alumnae today. So we've been told that if you see a McGill sticker on the back of a car which has a Texas license plate, it's almost 100 percent sure that's Vinh's car. And Aaron is our second presenter today. Aaron also produces materials on disability law issues for the DLRP, as well as fielding a lot of calls on our legal hotline. Aaron also earned his law degree from the University of Houston, and he's a member also of the State Bar of Texas. He's currently working on an MSW degree at the University of Houston, and his background includes a lot of social work experience as well. He's worked in the Mental Health Mental Retardation Department as well as rehabilitation centers in both Texas and Missouri. So there is a little bit about who you are going to be hearing from today. So we're ready to launch into the presentation. I'll give you a quick outline of what to expect and then turn it over. The agenda will go like this: first you'll hear an overview of the Garrett case. Second, you'll hear about how to apply the lessons from the Garrett case to Title II cases because the Garrett case was a Title I employment case. The third thing you'll hear about is an overview of how circuit courts are applying the Garrett decision to Title II cases. And finally, you'll get a summary of what we covered, and there are plenty of opportunities to ask questions. So without further ado, let me go ahead and turn it over to you guys, Vinh and Aaron. Aaron: Thanks, Rachel. Vinh: Thanks, Rachel. Aaron: In getting into Garrett and the overview of Garrett, I think it's important to touch the factual background and the underlying procedural facts. If only basically to ground people in the specter of Garrett. It has I believe become something very scary to disability advocacy community and a great deal of concern for those who push for the rights of people with disabilities. However, think it's often misunderstood. That's why I think it's valuable that Vinh has put this piece together and that we're addressing this today in this Web cast. Vinh, could you go into the history of Garrett. Vinh: Well, Garrett was actually not just -- was actually not just one case, it was two different lawsuits, both against the state of Alabama. Mrs. Garrett was a nurse at a University of Alabama Hospital while the other plaintiff in the second case was a security guard at the Alabama Department of Youth Services. Mrs. Garrett developed breast cancer and had to undergo a lot of treatment which required a lot of time off from her job and as a result of that, she got demoted to a lower position. Mr. Ash, on the other hand, had chronic asthma, so he requested to be accommodated by his job to somehow avoid I guess carbon monoxide and cigarette smoke and then later on he developed sleep apnea so he requested he only work his hours during the daytime and both of his accommodation requests were denied. They both filed separate lawsuits in district court and the district court -- the state of Alabama basically used their sovereign immunity to get out of the cases and the district court dismissed the cases. On appeals, the two cases were consolidated as one. And the question for the Supreme Court was -- the question before the Supreme Court is that the Eleventh Amendment, which provides sovereign immunity to the states prevents a person from obtaining money, damages in the Title I suit under the ADA. Aaron: Okay. So clearly -- and I think this is an important point to make. This was a Title I employment case. Vinh: Yes. Aaron: And a lot of the fear I think is -- and of course we'll go into this - - is the implications for Title II and we're going to go into that a little bit further. Vinh: Originally, the two cases were filed under both Title I and Title II, but the courts looked at this and decided this was basically an employment situation and decided to look at these cases under Title I. They never argued about Title II was constitutional. So the court (inaudible). Rachel: Vinh, for the folks out there who are not attorneys, because I know we've got some non-attorneys in the audience today, can you just give a quick explanation of sovereign immunity? Vinh: Well, sovereign immunity is a concept that basically the states are above the law. Back in the -- Aaron: The historical perspective on it, if you would. Vinh: Back in the - Aaron: We're being urged to have Vinh speak louder. Vinh: Apparently I'm not speaking loud enough. I'd like to apologize to the audience for that. Back in the late 1700's when the country was first formed, the states agreed to give up some of their power to form the United States, and one of the perks that they got out of it was that they couldn't be pulled into court over federal law. Well, they couldn't be pulled into a federal court over federal law. Originally the Supreme Court in 1700's had ruled that a person from another state could sue not his home state but a different state and that got the states to be in an outrage. So they passed the Eleventh Amendment, which forbid that. A number of decisions after the Eleventh Amendment was passed decided that a state couldn't be sued by its own citizens. Aaron: I guess in the history of law is the notion essentially that certain governmental bodies are going to be protected from being sued by the people that government serves. It's a notion of sovereign sovereignty; the king can do no wrong. That's translated into a more modern form of government. Certain liabilities, if I'm correct, Vinh, certain liabilities are only going to be open as an issue against the states if the states choose to allow themselves to be liable for those laws. Vinh: Well, the state is still liable under federal law. They still have to follow federal law even after Garrett. What's happened is a private individual cannot sue a state in federal court and expect to recover money unless there is some exception about the law that provides for the lawsuit. Aaron: So what you're saying is again the federal government can pursue the same claim in the face of sovereign immunity that an individual subject of that state cannot. Vinh: That's true. The United States or a federal agency like the Equal Employment Opportunity Commission or the Department of Justice can always sue the state to make it comply with federal law. The state doesn't get off scott free and just say, hey, I'm going to break the law and you can't do anything about it. Aaron: I guess -- I guess the difference for a layperson and definitely for advocates is that seems to be a pretty spurious distinction, the exact same remedy for the exact same individual and class of individuals can be pursued by a federal government, but you can't enforce the same law as an individual. Vinh: That's just one of the quirks that happened because of this Eleventh Amendment. Aaron: When did -- again, when did the Eleventh Amendment start getting renewed attention? It seemed to be fairly recent in terms of judicial history. Vinh: The Eleventh Amendment was brought back -- I shouldn't say brought back -- but it was reemphasized again in the early 90's with the Seminole case. I don't have a citation with me. That case a tribe of Indians or Native Americans were -- ended up suing Florida over some violation of federal law and the Supreme Court basically threw the lawsuit out saying that the state rights prevented -- sovereign immunity prevented the tribe from pursuing their action. Aaron: So this is a fairly -- a revisiting basically of a 225-year-old law? Vinh: Yes. Well, I mean this is what happens when you have a Supreme Court that is -- the majority of them are very pro-state oriented and they have their own views of Federalism and States Rights and they're pretty much pro-state rights so they've brought back some age-old doctrine and strengthened it over the past ten years. Aaron: So there have been a number of cases following the Seminole case, there has been a whole line of cases. Vinh: There has been a whole line of cases. Garrett is just the latest one of them. Aaron: I guess the point and a question I had was I've observed this from the point of being an attorney, and I've observed this as somebody who used to be a disability rights advocate who used to advocate for individuals with disability in my work. And to me it's kind of like two different hats and wearing the social worker hat, this seems very, very hostile towards the rights of people with disabilities. Wearing my attorney hat, it seems sort of neutral and birthed out of more of a state's rights perspective than any animus towards people's rights. Vinh: I think so. I think it is a neutral application of the law. The Eleventh Amendment does not just make -- a person can't sue a state in federal court over a number of federal laws, not just the -- not just the ADA. I think it was in the Kimmel case, the Supreme Court basically decided that age discrimination -- I forgot what the e. stood for Aaron: The ADEA. Vinh: Was unconstitutional as applied to the states and that was another example of a federal law being thrown out as applied to a state. Aaron: So a similarly constructed anti-discrimination law was also limited in the Kimmel case, right? Vinh: Yes, in that case they just decided that age was -- the states had a valid reason to discriminate against age and because they have a valid reason, their actions are protected under the constitution and the ADEA went too far in trying to enforce the constitution. Aaron: That's an interesting point to bring up. As a matter of constitutional construction, there are some pretty -- I would say - hyper-legal underlying issues that we were unfortunately forced to get into, I think in discussing this, including the notion of suspect class and the level of scrutiny that is going to be applied in the case of discrimination. I believe that's a nice -- I believe that's actually an awkward segue into the next section, but could you discuss that-- the underlying constitutional concerns. Vinh: Well, I had talked a little bit about it in the piece that accompanied this Web cast. I only briefly mentioned what was involved. The Eleventh Amendment as previously said keeps a private individual from suing a state for money damages for a violation of federal law. Now, there are certain exceptions and the Supreme Court has recognized these exceptions. The Fourteenth Amendment, which was passed after the Civil War, is one of those exceptions. What the Fourteenth Amendment does is it permits Congress to pass legislation that enforces its guarantees. What the Fourteenth Amendment guarantees is that no state shall deprive any person of life, liberty, or property, without due process of the law or deny to any persons within its jurisdiction the equal protection of the law. What the ADA does is protect the rights of people with disabilities and is legislation passed under the Fourteenth Amendment. What the Supreme Court had to do then or what any court has to do is to decide whether this power, this legislation basically or effectively waived sovereign immunity or overrides the Eleventh Amendment. Aaron: And of course in Garrett they found that it didn't. Vinh: Well, in Garrett they found that it didn't because first they had to -- they had a framework to analyze whether the ADA Title I successfully overrode the limitations set out by the Eleventh Amendment and how the Supreme Court went about to do this was they applied a three-step prong that they've developed over the years, over a number of cases. And the first step of the prong -- the first prong -- Aaron: --of the test. Vinh: -- of the test is to look at the kind of the constitutional right that is being protected by the federal law, and in this instance, Title I protects the rights of people with disabilities in an employment context. What is being protected specifically in terms of the constitution is that Title I requires a person with a disability to be treated the same as someone -- well -- Aaron: To encourage integration. Vinh: To encourage integration in the workplace. Aaron: And limiting access of people -- to eliminate discrimination. Vinh: The problem is what the constitution requires, it doesn't go into -- obviously the constitution doesn't talk about the specific requirements that the ADA -- Title I would require. Under the constitution, there was a case back in the 80's, Cleburne v. Cleburne Living Center that established that people with disabilities were not a suspect class in terms of constitutional scrutiny. Aaron: and the Cleburne -- the underlying case, the Cleburne case dealt with - Vinh: Well, it was a case dealing with a group home. Aaron: A community setting I believe. Vinh: Where people with mental disabilities were trying to build a group home. I think Cleburne is in Ohio, and the city used the zoning process to prevent them from building that home. And what the Supreme Court said was that the motive behind the zoning -- the refusal to grant a zoning exemption for the group home was just pure ignorance and fear about people with mental disabilities. Aaron: So there was no rational basis to -- Vinh: Yes, there was no rational basis for the discrimination and that basically covers what -- how people with disabilities are being viewed. As long as a state discriminates and has a legitimate -- and the discrimination has a legitimate -- or is related to a legitimate purpose, the state can discriminate all they want as opposed to something like race or gender. Those are two different groups where the courts are going to be -- take a much stricter look at. Aaron: So we have the Cleburne case and the court looks at that and they choose not to apply a stricter scrutiny to it because they don't have to. They find with the lowest level of scrutiny they find no rational basis. Vinh: Yes, they find no rational basis for what the city did in Cleburne. If they had applied a stricter scrutiny, what that does is it shifts the burden of proof over to the state to prove that the law is unconstitutional -- I mean is constitutional, I'm sorry. Because under the lowest level of scrutiny, a person who has been discriminated against must show that the law has no -- the discrimination has no level -- it's actually the state that has to prove that they have a compelling reason to pass the law a certain way. Aaron: Now, the court's decision to look at this at this level of scrutiny has implications ten years later -- more than that -- 12 years later for Garrett. Am I correct? Vinh: Yes, it does because what's happened here is the ADA basically forces not just states, but any employer to make certain -- well, it prevents them from discriminating against people with disabilities, but one of the provisions of not discriminating is a mandatory obligation to accommodate, and all the constitution basically tries to protect is that a group of people cannot be discriminated against unless there is some legitimate reason for it. And money, in this case, would be a legitimate reason because if a state has to spend more money to accommodate somebody, that's more than the constitution actually requires. Aaron: So when you're looking at Garrett with a rational basis level of scrutiny, we end up with a decision where the Supreme Court says - Vinh: Well, there hasn't been evidence of discrimination. Aaron: That's what the Supreme Court maintained there had not been an extended - Vinh: There hasn't been enough evidence of unconstitutional discrimination and if you define discrimination by the constitutional guidelines, then maybe there hasn't been. Aaron: What was the exact language was that the plaintiffs had failed to establish a pattern of unconstitutional discrimination when looking at a history of discrimination by this state. Vinh: Or when congress first passed the ADA, they had included in their legislative findings all the discrimination that occurred that prompted them to pass the ADA. And if you look at the history, I only took a cursory look at the history, but most of the discrimination by the states, that is, that occurred happened outside of the employment context, things that Title II and Title III would cover. And even then, we don't know if the discrimination is unconstitutional because no court has really - Aaron: The Supreme Court hasn't -- Vinh: The Supreme Court hasn't really looked at it. In the Garrett case, they refuse to. Aaron: I think this is where there is again -- legal advocates have a concern because they believe there is a well-established pattern and that the Supreme Court decision basisally ignored some realities of, you know, of the history of the treatment of people with disabilities in the country because access to employment alone, the institutionalization as a first issue that when you look at the history of the institutionalization of something like the proliferation of ugly laws in the earlier part of the century, that maybe there isn't as deep a history of discrimination in the employment context because that wasn't even an option. Again, that's an advocacy position. Vinh: I think that's quite a valid position that people with disabilities have to -- I mean, you're right. They have then had the opportunity in an employment context as in other areas. Aaron: That's the argument against the Supreme Court decisions by a lot of advocates is that this was selectively interpreted decision. That's law. Vinh: The Supreme Court, every time it makes a decision, it tries not to make the decision as expansive as it can. It actually tries to limit the decision to whatever really is at issue because they don't want people getting the wrong idea in applying their decision to something else that they might not have meant, and they could have looked at the whole ADA in Garrett. They could have looked at Title I and Title II and decided that states had sovereign immunity but they chose not to. They really ran away from that. Aaron: Well, I think the entire history of the Supreme Court is one where they tend to -- they tend to -- they tend to hold on as narrow an issue as possible with a few notable exceptions, but they tend to direct themselves to a narrow issue and I'm not entirely sure I'd want to see this court and this circumstance have looked at the broader issue. This may have been an appropriate review. We've got some questions that are coming in that may be more appropriately addressed a little bit later, but again, my concern when I put on the advocacy hat is immediately following Garrett, you know, there was a lot of fear about what the implications were and how far reaching it would be, and in my observation in the time since Garrett, some of those fears have come true, and some of them have been at least -- are still yet unproved. If you could go over basically the implications of Garrett I think that would be helpful for the audience. Vinh: Well, Garrett basically -- I mean, it only applied to Title I, but its reasoning and its analysis can be applied to just any federal law that affects the state. Aaron: Let's just start with Title I. An individual with a disability, what rights do they still have in a Title I situation? Vinh: In a Title I situation, we've already established that they cannot recover money from their employers if the employer is a state government, but they still have other remedies available to them. They still have injunctive relief, which is a type of relief that -- Aaron: : Potentially reinstatement. Vinh: To their job. Aaron: Potentially an accommodation. Vinh: Aand they also have the ability to go to the EEOC and the EEOC can try to enforce their rights. What they don't have anymore is basically if they want to go to I guess a lawyer of their own and, you know, complain about the discrimination, it's less likely that a lawyer will take up a case on their behalf if the employee cannot recover any damages. Aaron: Typically because he'd be taking a cut. I'll admit that in the field, but it's still -- you still may be able to find attorneys who would take this for the reasonable attorney fees. Vinh: Well, the thing is the reasonable attorney fees aren't guaranteed. It's not guaranteed. Usually courts will only award attorney's fees and court costs if the violation has been so egregious or if the state actually flaunts its attitude. If the court finds it to be awful, they'll award court costs and attorney fees, but that's not a guaranteed thing. Aaron: So again we're left with a situation -- attorneys will pick and choose their cases regardless Vinh: And in an employment context, injunctive relief such as reinstatement to a job or an order to accommodate the person with a disability might not be that effective. I mean, especially if you consider a court order that basically reinstates a person back to his original job. Aaron: Back to the discriminatory setting. Vinh: What person would want to go back to a situation where he had been discriminated against and there is a possible atmosphere of retaliation should he go back. Aaron: Again, I mean, that's the person, reinstatement of medical benefits, access back into a pension. There may be a lot of implications that would push somebody back into a hostile environment like that or potentially hostile environment, but - Vinh: But it makes the injunctive relief option much more palatable. Aaron: You mentioned that the EEOC or similarly the department of justice -- but under Title I the EEOC can go and seek individual redress. Vinh: That's true. Due to a recent case actually this year, EEOC vs. The waffle house, it was established that the EEOC can recover like money damages on behalf of the victim that the victim himself cannot recover. Aaron: Again, another odd quirk of this string of cases. Okay, now before I rudely interrupted you, you were getting into the notion of Garrett and implications in Title II and I liked a good deal of the writing that you offered along with this presentation had to say about that, but could you sort of summarize that. Vinh: Well, with Title II -- what Title II does is it protects people from discrimination by public entities. Now, a public entity can be a state or local government or an arm of the state or an -- anything that's basically funded by the public or I shouldn't even say funded. Anything by the government - Aaron: Being done at the behest of the state. Vinh: Or local government that ends up discriminating against people with disabilities. That's what Title II tries to avoid or - Aaron: So Title II is access to programs and services offered by the state provided by the state, funded by the state, done on behalf of the state. Vinh: Yes. Aaron: Or a lesser governmental entity below the state. Vinh: So Garrett has strong implications on Title II. Even though it was a Title I case, it involved the state. And the implications of course would naturally extend over to Title II, especially with the framework that I described about in my writing that accompanies this Web cast. Aaron: Now, one of the questions we have -- one of the questions that were sent in, you mentioned Garrett was decided under Title I. Why is it I keep hearing Title II is in danger of losing its power? Vinh: Since the state is basically a defendant, the reasoning in Garrett can apply to Title II and what lower circuit courts have done is they've applied the framework to Title II cases, and they've also decided that Title II is unconstitutional after looking at the three prongs. Aaron: Okay. Rachel: Vinh, I think it would be great if you could say a little bit more of that and sort of an overview of how the circuit courts are applying that three- prong process and what is their general response to these Title II claims when the states are claiming sovereign immunity? Vinh: Well, since the Supreme Court in Garrett expressly -- expressly said that the decision doesn't apply to Title II, the circuit courts have had to reevaluate Title II but using the same framework set out this Garrett. It's a three-prong test. The first prong is to identify the constitutional right in question. Title II not only protects the constitutional right -- equal protection grounds, but it also protects due process concerns of the Fourteenth Amendment. For example, in one of the cases by a circuit court, there was a father who was in danger of -- he was in a child custody action, and he was in danger of losing his child. But when he got to the courtroom, he didn't have -- he had a hearing disability, by the way, and he wasn't involved in the proceedings without interpretive services as he could be, and he sued under Title II because of that, and the right that he is suing -- the constitutional right is that he's not receiving due process, and the court looked at that and agreed with him that his due process rights might be infringed and that's what Title II in this case is protecting. So in that particular case, they let it go. They allowed the father to pursue his Title II case, but in other circuit court cases, several other courts of appeal, the cases have involved things like that disabled parking placards and discrimination by universities, state operated universities, and they involve equal protection grounds in the sense that the ADA was designed to, I guess - Aaron: Facilitate equal protection, essentially. Vinh: To facilitate equal protection. In the disabled parking case, Colorado had charged a fee for their -- for I guess the disabled parking placard and under the ADA, that's not -- that's illegal under Title II and Colorado (inaudible). And under equal protection grounds, the circuit court looked at the first step. They identified the right, equal protection. The second step is to look at the history because the Fourteenth Amendment can only be enforced by state violations of that right and when the 109th circuit, which is the court that looked at the case, looked at the congressional history and they saw -- it's true, most of these violations that was cited by congress had to deal with mostly Title II and Title III violation types, and they look at the violations and most of the violations were not, I guess, inspired by ill will or hate towards people with disabilities. It was just more they refused to accommodate them out of -- mainly the violations were due to monetary concerns. So the court decided there hasn't been any constitutional discrimination that would apply to the states. Aaron: So basically they held it wasn't the result of animus towards people with disabilities, but a concern about money or greed, if you want to categorize it that way. Vinh: Yeah, greed is a legitimate purpose and if they choose to discriminate or choose to do something that ends up discriminating against people with disabilities, greed is -- Aaron: Well, we can call it frugality. I don't want to paint everybody with an ugly brush, but - Vinh: They would call it fiscal responsibility. Aaron: Fiscal responsibility, greed, take your pick. We have a couple of questions. Actually we've gotten a number of questions on sovereign immunity and I would have guessed that would have been the case because it's such a -- I consider it a difficult concept and the one question is if sovereign immunity only applies to states, will Title II always remain a powerful tool to use against local governments, lesser governmental entities in the state? Vinh: Title II -- local governments like cities or counties or, you know, even - Aaron: Townships, water districts. Vinh: Even public utility districts, they don't enjoy sovereign immunity. The Eleventh Amendment does not protect them. So Title II's mandates still applies to them and they still have to dish out money - Aaron: If they discriminate. Vinh: And are found liable. The problem -- this past month there has been a Supreme Court decision, Barns vs. Gorman where they found that even though local governments, municipalities or whatever, even though they are liable for money damages, they cannot be punished through punitive damages, which is a type of remedy that punishes the violator of the law through the pocketbook, and in that case, the person in the wheelchair had sued the police department of Kansas City for violating his rights under the ADA, and he received a million in compensatory damages, which was designed to compensate him. He was looking for another million in punitive damages and the Supreme Court threw that out. So what this case did was it limited the remedies available to even local - Aaron: Against local. Okay, but what you're saying is those -- those remedies are still intact or remedies available under the ADA for the most part are still in pact, but they've eliminated punitive against lesser governmental entities. Vinh: Yes. We know for the state that there may not be monetary damages or remedies available to a plaintiff under Title II. It's quite possible that Title II might not hold up to a constitutional attack should it reach the Supreme Court if it's against the state. Now, against a smaller government like local government, we know now that there are no punitive damages, but that's just one remedy that Title II doesn't have. The more important remedies that are under Title II, again, that I listed under Title I in Garrett was that you still have injunctive relief and under Title II, injunctive relief is much more important. I mean, as I said, injunctive relief could be an order, ordering the state not to discriminate in its programs and services, and that kind of relief is much more important than money because you don't want the state to continue breaking the law. And that type of relief should always be available. Aaron: I want to take time to get to one more question about sovereign immunity, and then move onto some of the next pieces, if you'll allow. Vinh: Yeah, no problem. Aaron: I actually like this question. I think I promised not to ask this question actually but it came from the outside. And the question goes as follows: Is it a mistake to uncritically buy into the Supreme Court's five person majority claim about sovereign immunity? There is a great deal of dispute about this. Alden makes this clear, sovereign immunity is really made up by this court in 1995, the founding fathers believed in popular sovereignty. They were against sovereign immunity of the King of England. Sovereignty of the states and the federal government was rejected. The people are sovereign. This is clear from the civil war when the southern states were denied their sovereignty and held part of the country. We fought and won a civil war over this. Don't you agree? Vinh: I'm sorry, I don't get -- what is the question? Aaron: I think the question is should we -- should we blindly accept this string of sovereign immunity cases that are decided typically on the traditional 5-4 narrow margin because -- and as I've heard it said, the Supreme Courts renewed love affair with states rights. Vinh: The Supreme Court is supreme and they do decide the law. I don't disagree with the person that said that sovereign immunity was basically created in the 90's or somebody would say - Aaron: Resurrected. Vinh: And it's only brought back by a 5-4 margin. It's just that lower courts now have to accept this holding and apply whatever -- it's setting a trend. Aaron: So -- Vinh: And courts don't like to be reversed. So there is a fear that, you know, it gets to the Supreme Court, even if it's only a 5-4 decision, that's still a reversal. Aaron: What did our constitutional law professor say, you may not like it, kids, but it's the law. Vinh: Now, the person who -- I mean the person who asked the question is correct in that we are the people and we do -- basically we can decide whether a law can be enforced in the sense that -- I mean, if states can get out of the ADA due to sovereign immunity, people can still fight, you know, on the state level. States -- people can force the state or, you know, have state legislatures pass laws that are -- that is equivalent to the ADA on the state level and - Aaron: And in fact that's happened. Vinh: It happens - Aaron: It's a scary option considering that - Vinh: I don't trust the states. Aaron: I don't trust all 50 states. Vinh: I mean, you have California who has a well-developed disability rights law put in its place -- Aaron: After Garrett. Vinh: Well, after -- was it after Garrett? I'm not too sure. Aaron: Yes, it was. Vinh: It was in response to Garrett, but as for the other states, they might just be happy with the status quo. People with disabilities and their advocates and the interests groups must continue fighting. Aaron: I think another scare of course of pursuing that -- and of course we'll be covering this more later in a Web cast to follow that I'm responsible for. Again, as you're talking about a divided fifty-state effort at that point rather than a united, singular effort aimed at federal law. Vinh: Yeah, I mean, I guess if I was a person with a disability, which actually I am, I would rather be in California than, say, somewhere else and I'm not going to name another state. I don't want to - Aaron: You don't want to step on anybody's toes. And I guess what I would be interested in hearing is are there any other cases that you're hearing that bring up interesting factual or legal issues following this Garrett decision -- this Garrett analysis? That you haven't mentioned so far. Vinh: I believe I already mentioned the custody battle, and that was decided under Title II in court. I think it was the 6th circuit -- let me get the name of the case here. It's in my opinion Popovich vs. Cuyahoga County. That was a compelling case. You know, that's an example of a case that I would try to push through and fight for. A case on an equal protection grounds, on the other hand, the courts are going to look at it, you know, and are probably going to be more likely to find that Title II is unconstitutional in that regard. Aaron: Okay. Vinh: There was another case, but it was at the district court level. I've only -- I only made mention of it in a footnote, I think. Let's see, footnote no. 5. I talked about Roberts vs. Pennsylvania Department of Public Welfare. That case was a Title I case, but when the plaintiff had tried to enforce his rights or pursue his rights under Title I, his state employer retaliated against him and that brought out something else because Title V of the ADA forbids retaliation by I guess the perpetrator of the discrimination, and in that case the district court looked at the right being protected and it wasn't just employment or equal protection, it was the fact that the plaintiff got punished for going to the courts and trying to enforce his rights and that in itself is a constitutional right to the courts. And when you have a unique constitutional right that's being put out there, the courts are going to look at it carefully. Aaron: Did they analyze that saying that was an outside impediment to due process? Vinh: Well, they didn't look at it as a due process concern. They just looked at it as it was the ADA in this instance was protecting the freedom of speech, the freedom to access to courts. Aaron: So another clearly fundamental right such as - Vinh: And they upheld that. Aaron: Okay. If you had to come up with three or four points that you might clearly want the participants in this Web cast to take home, what would they be? I know what they would be for me, and that would be, you know, what is still available in terms of remedies? What kind of misapprehensions about the law have now been disproved or have been informed by this Web cast? And, you know, what remedies are available? At the heart of that that's what we're looking at is what is still available to fight against discrimination in both the workplace and in the provision of services by a state. Vinh: Well, technically, Title II is still constitutionally -- if it's applied to the states in one part of the country, but the Supreme Court has never said anything about whether Title II is constitutional or not. They didn't say a thing. So, I mean, if a person feels like he's been violated or discriminated by the state, you should still pursue the case. I mean, not on his own, but - Aaron: Necessarily. Vinh: Necessarily, but he should still pursue -- especially first injunctive relief. That's going to be I feel always available and that's the most important remedy under Title II is injunctive relief. You're making a state stop discriminating and you can also recover attorney's fees and court costs for making the state have to even comply; but again, that is a remedy that might not be available in all cases. You also have -- you also have the Department of Justice or, you know, the Department of Justice available to enforce Title II. And they can recover much more than a person by himself can recover in a lawsuit. So they are another possible avenue where -- that a plaintiff could use to establish his rights under the ADA and Title II. Aaron: Okay, we've got a rush of new questions in, and I think they all merit a discussion, but you'll pardon me while I rifle through them. What is the effect of -- let's see -- actually this is kind of a two-parter here. Protesting our discussion of the waffle house enforcement. The waffle house was against a private employer, not a state. What about -- what is the effect of Federal Maritime Commission vs. South Carolina? Vinh: Oh, in that case -- yeah, Federal Maritime was just decided this year also and that was also another state rights case. In that case, Federal Maritime Commission had its own adjudicated process, and because of that adjudicated process, I think they also had like a hearing or whatever to decide against the state, and under that case, the state also had sovereign immunity if there is a hearing, an adjudicated hearing involved. And the complaint to the department of Justice or the EEOC, it's doesn't -- I'm not entirely sure on this -- you don't need to go through a hearing or whatever before the DOJ or the EEOC seeks to pursue its case. Aaron: So your belief is that it's interpreted based on the very specific provisions under maritime law, there is an entirely separate adjudicated body? Vinh: The Maritime Commission has its own sets of, I guess, procedural -- procedures and one of it is an administrative hearing. That's true, states still retain their sovereign immunity in that kind of hearing, but from what I understand of the EEOC and the department of justice process, that's not there. Aaron: Okay. We probably need to look into it more. I'll admit to not being familiar with anything more than the title of that case. Vinh: Okay. Yeah, I mean, I've been reading about the case. It was a prominent state rights case, but I don't think it applies to the DOJ or the EEOC. I made my -- I guess my interpretation of waffle house -- I mean, it's true that it was based -- the defendant in that case was a private employer rather than a state, but the principle still remains where the government can recover against the state or against an employer in general or a violator of the law, something that the person, the victim himself cannot recover. And I think that's the main principle that still remains. Aaron: Okay, and I got a comment more than a question from one of the participants today stating that, you know, we can go to our states or we can move for a constitutional convention and change the constitution to clear up the notion of people are sovereign and not states. I mean, we can amend the constitution, as difficult of a process as it is. Vinh: It's very difficult. Aaron: As we saw in 1980 on the ERA I won't comment one way or the other on the ERA since I was ten. Vinh: For people that don't know what the ERA is, that's the Equal Rights Amendment on gender? Aaron: Primarily gender, but I think in terms of the difficulty of process this of amendment in a modern era, that is a great example. I mean, we haven't seen an amendment since the changing of voters act -- the changing of the age of franchise and then that weird one that got added just a few years later that had actually been -- that should have been ratified 135 years prior; but the process is difficult, but it does not mean it doesn't have merit. I think pursuing state rights protections is a valid point and I will again be discussing that in a future Web cast. Vinh: I mean, rather than a constitutional amendment, which is a very, very big step to take, Congress can always amend the ADA later to try to make the law fall within constitutional bounds. What the Supreme Court had criticized is that they had not identified enough of a history of constitutional violations. I mean, maybe a future amendment can detail these constitutional violations. Aaron: Maybe so. Maybe an amendment can create enough evidence, but again, that remains to be seen. I don't want to -- I don't want to fall too far into the speculation waterfall. But again, I think it's -- I think the lesson of Garrett is again -- or at least one lesson of Garrett is if you are interested in the rights of people with disabilities, to be vigilant, to pursue all potential avenues for enforcement, and that's the simple -- I think to me that's the main and the clearest lesson of Garrett. Vinh: I think I would agree with you. I think another thing I want to add is if someone wants to pursue a Title II case and wants to push it through to the Supreme Court, they should make it a compelling case, a very, very compelling case. Aaron: If it's too compelling, it will settle. Vinh: Well, you're correct. If it's too compelling then they'll settle, but Garrett was only decided on a 5-4 majority, and you have at least four justices on the Supreme Court that is very, very pro-state oriented or state-rights oriented, but the fifth person -- I think it's justice Anthony Kennedy, by the way. I don't know if it's okay for me to name him, but he might be persuaded. Aaron: He's written things down. He's been well researched. We all know who the swing vote is. Vinh: And Title II does involve different remedies and addresses different concerns than Title I. So he may be more sympathetic, either that or wait until the composition of the court changes I guess for the -- I won't say the better, but to one that is less state-rights oriented. Aaron: All right. Well, i would call that near an end. Rachel, are you there? Rachel: Yes, I am. That was all the questions you were able to get in? Aaron: Yeah, there is just some repeats and... Rachel: I know we did have a lot of e-mails. I was seeing some of them as they were coming in. Aaron: I apologize if we didn't get to everybody's. Rachel: I just want to let the audience know that there were a number of questions that did overlap with each other. So Aaron did try to consolidate. Vinh: I'd like to commend the question that talked about the maritime case because I had thought about that. I was doing some research on that yesterday to see if it had -- it would affect any of the issues presented today and I decided that I don't think it did due to the mechanism that the EEOC and the Department of Justice uses to decide on whether they take on a case or not. And the person who brought that up - Aaron: That's a shout out of Kansas from Vinh. Rachel: Okay, guys. Thank you very much both Vinh and Aaron. I think that you guys did a good job of raising and trying to explain and clarify some pretty difficult concepts. So I hope that the audience has learned a bit today, and if people have follow-up questions, feel free to continue to e-mail us and Vinh and Aaron will be answering your e-mails and again you can send that to Webcast@ilru.org. So thanks, guys. And I just want to let you all know that this presentation will be archived. So if you come back to our website after tomorrow, it will be up. So if you wanted to listen to it again or tell other folks to listen to it, you can come back to our website and find that. And I want to invite you to join us for parts 2 and 3 of this series, and I know that Aaron was referring and Vinh was referring to those. So on Wednesday, August 7th, Aaron is going to be talking about state law protections and how state laws might be used for people with disabilities to assert their rights. And then on Monday, August 12th, Brian East who is with Advocacy, Inc., which is the advocacy center, will be discussing 504 and the possible power of using 504 as a way to enforce your rights. And we would love to hear your feedback on today and on topics, so please fill out the evaluations that are on the website, and of course before we go, I'd like to thank everybody who made this possible, so, again, thank you very much to Vinh and Aaron for all the hard work you did preparing for this, and we'd like to acknowledge NIDRR again who funds the DLRP, and then this Web cast would not be possible without the efforts of our whole crew here at ILRU in-house, so I'd like to acknowledge Marj Gordon, Sharon Finney, Dawn Heinsohn, and Mark Richards and of course the technical expertise of Rob Dickehuth and the services of our real-time captioner, Marie Bryant, who I think we put through the paces today. So thank you to everybody and I'm glad you all were able to join us and we hope to see you again soon.