Bill
Pryor's Record on Disability Rights
Bill
Pryor, the former Attorney General of Alabama, who did not win
Senate confirmation of his nomination to the Eleventh Circuit
Court of Appeals last year, has been renominated by President
Bush to serve on the Eleventh Circuit. Pryor has been serving
temporarily as an Eleventh Circuit judge because President Bush
used a “recess” nomination to circumvent the Senate’s “advice
and consent” role and appoint Pryor for a one-year period.
The Eleventh Circuit is comprised of Florida, Georgia, and Alabama.
Pryor’s
confirmation to a federal appeals court judgeship would undermine
the ability of people with disabilities to enforce important
civil rights protections given to them by Congress. Pryor has
been an outspoken advocate for states’ rights and has fought
aggressively to prevent people with disabilities from enforcing
their rights under the Americans with Disabilities Act and Section
504 of the Rehabilitation Act against the states. He has also
spoken out in favor of legal arguments that would eliminate the
right of individuals to enforce their rights to obtain Medicaid
services that states are obligated to provide. Pryor is a member
of the Federalist Society and participates in other right-wing
think tanks that promote a states’ rights agenda.
Pryor
has taken positions very similar to those of Jeffrey Sutton,
who was widely opposed by disability advocates because of his
consistent efforts to defeat individuals’ ability to
enforce disability and other civil rights laws. While Sutton
contended that he was merely advancing positions that he was
hired to take, it was Bill Pryor who decided to take these
positions in some cases and to hire Jeff Sutton to make the
arguments. In Board of Trustees of Univ. of Alabama v. Garrett,
for example, Pryor had formulated the argument that states
were immune from suit under Title I of the ADA, and he hired
Jeff Sutton to make that argument to the Supreme Court. Fourteen
other state attorneys general took the opposite position in
the Supreme Court.1
I.
The ADA and Section 504
Pryor
is perhaps best known in the disability community for his advocacy
in the case of Board of Trustees of the University of Alabama
v. Garrett,2 which severely limited the rights
of people with disabilities to enforce the ADA. Pryor argued
in Garrett that Congress
had no power under the Fourteenth Amendment to apply Title I of the ADA to
state employers. He brought
in states’ rights advocate Jeffrey Sutton to help him make the case to
the Supreme Court. They persuaded the Supreme Court's
conservative majority to rule, in a 5-4 decision, that individuals with disabilities
who are state employees cannot sue their employers for damages under Title
I of the ADA.
Pryor
argued that Congress had no power to apply the ADA to the states
because “[i]n
passing the ADA, Congress did not identify any pattern or practice
of unconstitutional State action, or for that matter, even
a single instance of such conduct.” Despite
the massive record of egregious conduct toward individuals
with disabilities by states that Congress had compiled -- including
instances of forced sterilization of individuals with disabilities,
unnecessary institutionalization, denial of education, and
systemic prejudices and stereotyping perpetrated by state actors
-- Pryor argued that states were actually in the forefront
of efforts to protect the rights of individuals with disabilities.
The Garrett case
has had a much broader impact than simply precluding ADA cases
seeking money damages against state employers. In the wake
of Garrett, states have argued that Garrett’s
reasoning applies to Title II of the ADA, and many courts have
accepted those arguments. Additionally, states have argued
that the ADA is not enforceable at all against state entities,
even in cases that do not involve damages. Some courts have
accepted those arguments.
Pryor
has also argued that Congress had no power to apply Title II
of the ADA to state entities. In Pennsylvania Dep’t
of Corrections v. Yeskey3 and Medical
Bd. of California v. Hason,4 Pryor
filed amicus briefs with the Supreme Court arguing that Congress had exceeded
its Fourteenth Amendment power in applying Title II to the states. In Yeskey,
Pryor also challenged Congress’s power under the Commerce Clause to apply
the ADA to state prisons. He argued that the ADA had no application to state
prisons at all. The Supreme Court rejected that argument.
Pryor
has also used federalism arguments to prevent people with disabilities
from enforcing their rights under Section 504 of the Rehabilitation
Act. Patricia Garrett, the plaintiff in the Garrett case,
has been litigating her employment discrimination claims against
the University of Alabama since 1997. Because of Bill Pryor’s
efforts, she was unable for years to have any court review the
merits of her claims that she was demoted because she developed
breast cancer. After Garrett’s ADA claims were thrown out
by the Supreme Court, her remaining claims under Section 504
were thrown out by the trial court based on Pryor’s argument
that Congress could not require states to waive their immunity
under Section 504 in exchange for accepting federal funds.5
Pryor’s
arguments were rejected by the Eleventh Circuit Court of Appeals,
and Ms. Garrett finally began to litigate
the merits of her case in the trial court six years after it was filed.
Pryor
also filed an amicus brief with the Supreme Court in Tennessee
v. Lane on behalf of seven states urging the Supreme Court
to conclude that Congress had no power under the Fourteenth Amendment
to enact Title II of the ADA. He argued that Congress failed
to identify any pattern of constitutional violations by states
people with disabilities, that the ADA’s damage remedy
for violations of public building accessibility was unnecessary.
Pryor’s arguments were rejected by the Supreme Court.
II.
Child Welfare
Bill
Pryor attempted to scrap a consent decree between the state of
Alabama and a class of children in the state’s child welfare
system. The consent decree, entered into several years before
Pryor became Attorney General, resolved constitutional and statutory
claims challenging deficiencies in the child welfare system and
put in place much-needed reforms. The named plaintiff, R.C.,
had been placed in the child welfare system without attempts
to provide appropriate services or supports to him or his father.
R.C. had mental health needs, but instead of receiving appropriate
services, he was repeatedly shunted by the child welfare system
from one psychiatric hospital to another and given large doses
of psychoactive medication.6
The consent decree required the state to do
more to prevent children from being removed from troubled homes, to provide
appropriate services to children and their families, and to prevent frequent
transfers within the foster care system and their resulting harms to children.
The
consent decree had the effect of greatly reducing safety risks
to children, until the state dramatically cut back funding for
care and services and eliminated technical assistance and training,
rolling back progress. Bill Pryor freely admitted that the state
had not complied with the terms of the consent decree and that
prospects of future compliance were dim. He sought to vacate
the consent decree based on legal arguments that the parties
had committed a fraud on the court, that the law had changed,
and that the plaintiff class was too broad. The court rejected
these arguments, including Pryor’s argument that the former
Governor, former Attorney General, and other state officials
had conspired to defraud the court by entering into the consent
decree.
After
a hearing on the motion to vacate the consent decree, Pryor stated
publicly that “[i]t matters not to me” whether his
actions would leave children unprotected. He continued, “My
job is to make sure that the state of Alabama isn’t run
by federal courts. . . . My job isn’t to come here and
help children.7
III.
Medicaid
In
addition to his legal advocacy, Bill Pryor has made public statements
confirming his restrictive views of the law. One notable example
is a speech Pryor gave in 2001 praising the reasoning of the
district court decision in Westside Mothers v. Haveman.8 The district court ruled that Congress could
not use its power under the Spending Clause to authorize individuals to sue
to obtain the services to which they are entitled under the Medicaid program.
Thus, impoverished children and adults who were not getting basic medical
care guaranteed
them under the Medicaid program were unable to enforce their rights. This argument,
which is far out of the mainstream of jurisprudence, was ultimately rejected
by the Sixth Circuit.
In
a 2001 speech, Pryor
called the district court’s Westside Mothers decision “brilliant” and “sublime,” and
expressed hope that he could participate in the “next phase” of “landmark
decisions” that would eliminate enforcement of Medicaid
and other similar Spending Clause laws.9 Pryor’s views of the law expressed in
that speech would also eliminate individuals’ ability to sue to enforce
Section 504 of the Rehabilitation Act and the Individuals with Disabilities
Education Act.
IV.
Other Civil Rights Laws
Pryor’s
arguments in other high profile civil rights cases have also
had a detrimental effect on disability rights advocacy. For example,
Pryor persuaded a 5-4 majority of the Supreme Court in Alexander
v. Sandoval10 that individuals cannot sue to enforce regulations
under Title VI of the Civil Rights Act of 1964 that prohibit recipients of
federal funds from engaging in conduct that has the effect of discriminating
based on race or national origin.
Since
the Sandoval decision was issued, states have begun to
use its reasoning in efforts to persuade courts that people with
disabilities should not be allowed to enforce regulations under
the ADA and Section 504 of the Rehabilitation Act requiring reasonable
accommodations, integration of individuals with disabilities,
and accessible public housing.11
Pryor
also argued to the Supreme Court that state entities cannot be
sued under the Age Discrimination in Employment Act (ADEA)
and the Family and Medical Leave Act (FMLA). The Supreme Court
accepted his argument with respect to the ADEA,12 but
rejected the argument he made in an amicus brief with respect
to the FMLA.13
These arguments
are similar to the ones Pryor made with respect to the ADA in Garrett and Hason, and
continue to be used in ADA Title II cases.
Notes
1. It was also Pryor who decided to take the position taken by
Alabama state officials in Alexander v. Sandoval that individuals
had no
right to enforce regulations prohibiting “disparate impact” discrimination
based on race or national origin by entities receiving federal
funds. Pryor hired Sutton to make this argument to the Supreme
Court. It is the state attorney general, and not state agency directors,
who make the final decision whether to pursue litigation on behalf
of state entities in Alabama. Ex parte Weaver, 570 So. 2d 675 (Ala.
1990).
2. 531 U.S. 356 (2001).
3. 524 U.S. 206 (1998).
4. No. 02-479, cert. dismissed, 173 S.Ct. 1779 (2003).
5. Garrett v. University of Alabama at Birmingham
Bd. of Trustees,
223 F. Supp.2d 1244 (N.D. Ala. 2002).
6. R.C. v. Nachman, 969 F. Supp. 682, 685 (M.D. Ala. 1997).
7. Pryor: Only Legal Concerns, Says He Can’t Judge If Welfare
Settlement Helped Children, Birmingham News, May 7, 1997, at 1-B.
8. 133 F. Supp. 2d 549 (E.D. Mich. 2001), rev’d, 289 F.3d,
852 (6th Cir. 2002), cert. denied, 123 S.Ct. 618 (2002).
9. William H. Pryor, Jr., The Demand for Clarity:
Federalism, Statutory Construction and the 2000 Term (Washington, DC, July
11, 2001), The Federalism Project of the American Enterprise Institute.
http://www.federalismproject.org/masterpages/supremecourt/pryor.html
10. 532 U.S. 275 (2001).
11. See, e.g., Three Rivers Center for Independent
Living, Inc. v. Housing Authority of City of Pittsburgh, 382 F.3d 412 (3d Cir.
2004) (Section 504 regulations requiring a certain percentage of
newly constructed or altered public housing to be accessible to
people with disabilities unenforceable based on Sandoval); Frederick
L. v. Dep’t of Pub. Welfare, 157 F. Supp.2d 509, 536-39 (E.D.
Pa. 2001) (rejecting state’s argument that Sandoval barred
plaintiffs from privately enforcing integration mandate regulations
under ADA and Section 504); M.A.C. v. Betit, 284 F. Supp.2d 1298
(D. Utah 2003) (Medicaid provisions requiring services to be provided
and to be furnished with reasonable promptness unenforceable based
on legal reasoning set forth in Sandoval and expanded upon in a
later Supreme Court decision, Gonzaga Univ. v. Doe, 536 U.S. 273
(2002)).
12. Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000).
13. Nevada Dep’t of Human Resources v. Hibbs,
538 U.S. 721 (2003).
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