John Roberts’ Problematic Record on Disability Rights
The nomination of John Roberts for the Supreme Court
vacancy created by Justice O’Connor’s retirement
poses serious concerns for people with disabilities.
As judge, private lawyer, special
assistant to the Attorney General and deputy Solicitor General,
Roberts has repeatedly argued to narrow the protections of the
Americans with Disabilities Act (ADA) and other civil rights laws,
to greatly limit the powers that allow Congress to pass civil rights
laws and to limit remedies under civil rights laws.
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.
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