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William Pryor's Nomination to the 11th Circuit Court of Appeals Endangers the Rights of People with Disabilities

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Alabama Attorney General William Pryor is the latest of the Bush Administration's controversial judicial nominees, to the 11th Circuit Court of Appeals. He is scheduled to go before the Senate Committee on the Judiciary for a hearing on Wednesday, June 11.

Like Jeffrey Sutton, Pryor has a long history of conservative extremism and has worked to weaken and eliminate federal protections for people with disabilities and other minorities. In fact, it was Pryor who hired Sutton in the Garrett case, which significantly weakened ADA protections against discrimination by the states.

Pryor's confirmation to a seat on the federal appeals court 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 ultra-conservative think tanks that promote a states' rights agenda.

Please phone, fax or email (www.congress.org) your Senators and Representative and ask them to vote "No" on Pryor! ADA Watch will post a "Stop Pryor" petition you can sign.

Bill Pryor's Record on Disability Issues

Bill Pryor, the Attorney General of Alabama, has been nominated by President Bush to serve on the Eleventh Circuit Court of Appeals. The Eleventh Circuit is comprised of Florida, Georgia and Alabama.

The ADA and Section 504

Pryor is perhaps best known for his advocacy in the case of Board of Trustees of the University of Alabama v. Garrett,⁽¹⁾ 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 the Supreme Court'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. Yeskey⁽²⁾ and Medical Bd. of California v. Hason,⁽³⁾ 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' 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 has been unable 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.⁽⁴⁾ Ms. Garrett is appealing that ruling to the Eleventh Circuit Court of Appeals.

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.⁽⁵⁾ 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 said 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."⁽⁶⁾

Medicaid

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. ⁽⁷⁾ 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. As a result, 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.

Pryor called the district court's 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. 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.

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. Sandoval ⁽⁸⁾;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.⁽⁹⁾

Pryor also argued to the Supreme Court that state entities cannot be sued under the Age Discrimination in Employment Act (ADEA)⁽¹⁰⁾ and the Family and Medical Leave Act (FMLA).⁽¹¹⁾ The Supreme Court accepted his argument with respect to the ADEA, but rejected the argument he made in an amicus brief with respect to the FMLA. 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.

Take Action

Contact your Senators and Representative today and ask them to vote against William Pryor's nomination to the 11th Circuit Court of Appeals.

Notes

1. 531 U.S. 356 (2001).

2. 524 U.S. 206 (1998).

3. No. 02-479, cert. dismissed, 173 S.Ct. 1779 (2003).

4. Garrett v. University of Alabama at Birmingham Bd. of Trustees, 223 F. Supp.2d 1244 (N.D. Ala. 2002).

5. R.C. v. Nachman, 969 F. Supp. 682, 685 (M.D. Ala. 1997).

6. Pryor: Only Legal Concerns, Says He Can't Judge If Welfare Settlement Helped Children, Birmingham News, May 7, 1997, at 1-B.

7. 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).

8. 532 U.S. 275 (2001).

9. See, e.g., Three Rivers Center for Independent Living, Inc. v. Housing Authority of City of Pittsburgh, No. 02-1069 (W.D. Pa. May 14, 2003) (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); Sabree v. Houstoun, 245 F. Supp.2d 653 (E.D. Pa. 2003) (appeal pending) (finding Medicaid provisions requiring services 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)).

10. Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000).

11. Nevada Dep't of Human Resources v. Hibbs, No. 01-1368, 2003 WL 21210426 (May 27, 2003).