It seems to be a strongly held belief, if not an established fact, that the ADA is under attack through both litigation, and legislative efforts. An "attack" really presupposes some malice, and it really appears that this is not that which is fueling these efforts, but rather it is business self-interest, quibbling over states' rights, and near nerdy hyper-textualistic sifting of the definition of disability under the ADA by federal judges more learned than I. Consider that the US Supreme Court has taken nine cases on the ADA since 2000, and five just this year as of this writing. Consider also, the reintroduction in each legislative session of the "ADA Notification Act," a proposal supported by a number of Congresspersons, and actor Clint Eastwood. This "notification" law would require an opportunity for potential, defendant, business owners to remediate alleged ADA violations before a plaintiff could commence a civil action.

Okay, maybe the ADA is under ... let us call it well ...a commencement of hostilities of late. What do you do about it? If you are among the many disability rights advocates in the country, you punt and you may aim your efforts at the state law level that had generally failed to meet these needs before the passage of the ADA. What will this effort give someone seeking to protect his or her rights as a person with a disability?

As a matter of legal construction, federal civil rights laws create a "floor," or a minimum standard beneath which the conduct of states and their citizens are not allowed to fall. They must do at least as much as the current interpretation of the particular federal civil rights law requires. However, as a state they can do more, and offer stronger protections and broader application of those protections. Under some state law, it is even allowable for lesser governmental authorities to pass civil rights ordinances that provide "extra" protections (I am most familiar with Texas, and that is the case here, in some cities).

What advantages are there in seeking enforcement though state civil rights law protecting people with disabilities? One advantage may be locale; one can bring an action in a local state court. Another is that some of the state laws take an expansive view of who is a covered individual with a disability (for example, New Mexico includes people with a "serious medical condition").

In addition to state law protections under a broad civil rights law, many states have stand-alone protections for people with disabilities, often called "white cane" statutes (even when they are protections not specifically limited to protecting people who are vision-impaired). Many of these laws deal with motorized and pedestrian traffic and its requirement to yield when a person using a white cane or a guide animal is approaching to cross the roadway. Other laws create criminal penalties for people who deny access to places of public accommodations to people and their service animals, or who injure or harass the service animal. Other statutes extend this penalty to owners of animals that attack service animals. Some other state laws provide for protections specific to one activity such as voting a secret ballot (not currently guaranteed under federal voting rights law).

While not strictly a rights protection notion, many states have added people with disabilities as a protected class within "hate crimes" statutes that provide sentencing enhancements for those convicted of a crime that targets people with disabilities. Other examples of laws benefiting people with disabilities are those that reduce real property tax for those who claim, and meet, certain disability standards. Such tax break laws, while somewhat paternalistic, are common, and seem to be a nod to the financial inequities people with disabilities face when trying to own, and retain property.

Those were the advantages, but what barriers to enforcement exist when trying to enforce the rights of people with disabilities via state law? First, there has always been the notion that in matters of civil rights law, the federal judiciary is more sophisticated, and more likely to take a balanced view towards such law. Many of the state laws define disability more narrowly than the ADA. Other state civil rights laws may not allow enforcement against the state by reserving sovereign immunity.

Many advocacy organizations are not going down this existing-state law protection route. They are calling for grassroots advocacy to force states to enforce the ADA (to comply with the law as state actors, and to allow enforcement efforts to be brought against the state), and to encourage federal legislators to amend the ADA in order to make clearer the broad scope of its coverage as, they believe, was the 1990 Congress' intent. The ADA Watch, one such group, tracks these efforts, and seeks to organize them online at their web site http://www.adawatch.com. Other such groups are calling for changes in the state law as a direct response to the U.S. Supreme Court's decisions in Garrett (which limited money damages in discrimination actions brought by state employees under the ADA), and Sutton (the case that required an inquiry into the effect of "mitigating measure," or corrected devices such as eyeglasses or prosthetics, when determining whether someone has a covered disability under the ADA).

One effort at legislative change has succeeded in California, where state legislators this past year amended that state's Fair Employment and Housing Act (FEHA). Under the new amendment, "mitigating measures" are not considered, there is no "substantial limitation in a major life activity" requirement as it only requires a "limitation," and that statute strongly reiterates the requirement of an "interactive process" when negotiating reasonable workplace modifications or accommodations. In addition, the law clarifies issues relating to what are considerations in determining the essential functions of a job. The law also allows for civil action against the state as an employer, and provides for remedies of reinstatement, compensatory damages, and even emotional distress.

While such an effort has been successful in California, it remains to be seen how successful such an effort would be in other states. However, it is noteworthy that each state has some laws that at least purport to further the rights of people with disabilities, and often have enforcement mechanisms, or agencies, that are more readily accessible than are their federal counterparts. While a full exploration of state law protections for people with disabilities, and the avenues of their enforcement, are beyond the scope of this article, it remains a worthy inquiry for the advocate. A good place to start is with your state's committee on people with disabilities. Many have resource guides on enforcement options, and key state laws on their Web sites, or available in printed form. I have included a link that should lead the participant to their states' resources site, and their states' governors' site: http://www.disabilityresources.org/DRMreg.html.

A spot-check of the links showed all I viewed worked --- except for the one from Texas --- that link is to the former governor's, now President, Web site. The new link is: http://www.governor.state.tx.us/disabilities/index.htm

If any other links do not work, I apologize, I cannot check them all.