U.S. Disability Organizations Protest Nomination of Judge with Perceived Anti-ADA Bias
By Kay Schriner (kays@uark.edu)
The Bush administration's nominee for Judge to the Sixth Circuit Court of Appeals, Jeffrey Sutton, is running into strong opposition from the disability community in the U.S.
Sutton is well-known among disability advocates for his advocacy of states' rights - a position that holds that the states' rights to manage their own affairs has been unfairly and unconstitutionally restricted by the federal government. The states' rights proponents argue that a wide array of federal laws, including the Americans with Disabilities Act, impose too many requirements and restrictions on state power. States' rights advocates would like to see a much-diminished federal role in protecting disabled people's civil rights and providing disability services.
Jeffrey Sutton is a former State Solicitor General for Ohio. He has devoted his career to advancing states' rights theory in constitutional law. Indeed, Sutton has said he is "on the lookout" for cases to argue before the federal courts to re-balance federal and state power.
Thus far, Sutton has been a very effective opponent. He has represented states or submitted "friend of the court" briefs in numerous federal court cases. His participation has helped create a body of law that is perceived by many as hostile to people with disabilities, and creates the possibility of many more such cases. Here are a few examples:
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In University of Alabama Board of Trustees v. Garrett, in which the state of Alabama argued that a nurse with breast cancer should not be allowed to sue for money damages from the state because of discriminatory treatmen. Sutton argued that the Americans with Disabilities Act was "not needed" and that it "exaggerated discrimination problems by states." This is a remarkable claim, given the long history of state discrimination, including segregation and institutionalization of people with disabilities, forced sterilization and denial of education.
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In the Olmstead case, in which the Supreme Court decision supported the ADA's mandate that services for people with disabilities be provided in the most integrated setting possible, Sutton filed an amicus brief for the state of Georgia, arguing that keeping people unnecessarily institutionalized did not constitute discrimination.
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Sutton successfully argued before a Michigan federal court that Congress cannot authorize Medicaid recipients to sue for enforcement of Medicaid provisions. Sutton argued that the Medicaid program does not provide the right to services for individuals but is instead a contract between the federal and state governments. Thus adults and children with disabilities would have no private right to sue for enforcement of Medicaid provisions.
The stakes in the states' rights battle are enormous. The logic that Jeffrey Sutton uses to attack the Americans with Disabilities Act and access to Medicaid services can also be applied to the Individuals with Disabilities Education Act (the federal law guaranteeing free and appropriate public education for children and youth with disabilities) and the Rehabilitation Act (which prohibits disability discrimination by federal programs and contractors). The right of the federal government to establish national guarantees of basic human rights and access to services would be greatly reduced if not obliterated.
If jurists such as Jeffrey Sutton succeed, people with disabilities will be forced to fight for civil rights and disability services in every state capitol in the nation. Sutton himself has said that states should be the "principal bulwark in protecting civil liberties." It is already the case that a disabled person in California may have different rights and services than a disabled individual in Alabama or Massachusetts. Americans who are familiar with the long history of state-sponsored discrimination on the basis of disability (as well as race and gender) fear advancement of the states' rights agenda.
A hearing for Sutton is soon and disability organizations and advocates are organizing their opposition efforts.
Information for this article was taken from
www.adawatch.org.
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