Samuel Alito’s Record on Disability Issues
Samuel Alito, President Bush’s nominee to replace Justice O’Connor
on the Supreme Court, presents grave concerns for people with disabilities.
Having sat on the Third Circuit Court of Appeals for 15 years, Judge
Alito has a record of decisions that make very clear the threat he poses
to disability rights.
I. Judge Alito Would Restrict Congress’ Power to Enact Disability
Rights Laws
Perhaps the most troubling aspect of Judge Alito’s record is his
narrow interpretation of the powers that authorize Congress to pass civil
rights laws, including the Americans with Disabilities Act (ADA), Section
504 of the Rehabilitation Act, the Fair Housing Amendments Act, the Family
and Medical Leave Act (FMLA) and other laws of importance to people with
disabilities. His rulings demonstrate cramped views of Congress’s
powers that would put critical disability rights laws at risk.
Justice Sandra Day O’Connor, whose seat on the court Alito is
nominated to fill, was frequently the pivotal vote in cases about Congress’ power
to pass the ADA, the FMLA and other important laws. If Judge Alito is
confirmed, there is every reason to expect that many important decisions
about federal power would come out differently—against people with
disabilities. His record suggests he would become the critical fifth
vote to strike down portions of these laws as unconstitutional.
Restricting Congress’ Fourteenth Amendment Power
Judge Alito has demonstrated a narrow view of Congress’ power
to pass civil rights laws to enforce the Fourteenth Amendment’s
guarantees of equal protection, due process of law, and other critical
rights.
- He ruled that Congress did not have the power under the Fourteenth
Amendment to enact the FMLA’s guarantee of up to 12 weeks of
unpaid leave for personal illness.1
In a similar case involving the
FMLA’s guarantee of unpaid leave
to care for a sick family member, the Supreme Court upheld Congress’ power
to enact this provision.2 Judge Alito gave Congress
significantly less leeway than the Supreme Court did. A majority of the
Supreme Court, including
Justice O’Connor, held that the FMLA’s entitlement to a certain
amount of leave time, applied equally to men and women, was an appropriate
response to a history of gender discrimination in leave policies. Judge
Alito, on the other hand, stated that the FMLA was not an appropriate
response to gender discrimination because its entitlement to leave time “does
much more than require nondiscriminatory sick leave practices.” 3
Restricting Congress’ Commerce Power
Judge Alito’s decisions also demonstrate a very narrow reading
of Congress’ power to legislate under the Interstate Commerce Clause.
Congress used this power, together with its Fourteenth Amendment power,
to pass the ADA.
In a case where the Third Circuit ruled that Congress had the
power to ban the possession of machine guns, Judge Alito dissented.
He
stated that, in banning machine guns, Congress went beyond its
power to regulate
interstate commerce. 4
Judge Alito’s dissent is based on an extremely restrictive
view of Congress’s power to regulate interstate commerce.
He argued that Congress could not ban the possession of machine
guns if the guns
were not being taken across state lines. A majority of the court concluded
that the ban on machine gun possession was a necessary part of a larger
regulatory scheme, and that the possession of machine guns had a substantial
effect on interstate commerce. Judge Alito complained, however, that
the majority’s theory was so broad that it would convert Congress’ commerce
power into “a plenary police power.” 5
The arguments rejected
by Judge Alito were precisely the arguments relied on by the Supreme
Court recently in upholding Congress’ authority
to regulate possession and cultivation of marijuana within states.6 .
The Supreme Court held that Congress could regulate marijuana even if
it did not cross state lines and was not bought or sold but simply grown
for personal use. The Court recognized that the regulation of marijuana
even within states was an essential part of a larger regulatory scheme,
and that Congress could regulate purely local activities as long as they
were part of a larger class of activities that substantially affected
interstate commerce. 7
Thus Judge Alito has taken a much more restrictive view of Congress’ powers
to legislate under both the Fourteenth Amendment and the Commerce Clause
than the Supreme Court has. His views create cause for grave concern
about the future of the ADA and other disability rights laws. Democrats
and Republicans alike have expressed concerns about recent constitutional
challenges to the ADA and the Supreme Court’s role in determining
those issues. It is critical that the new Supreme Court Justice be someone
who will respect Congress’ authority to enact needed protections
for people with disabilities.
II. Community Integration
Judge Alito voted to rehear one of the most significant victories
for people with disabilities in the Third Circuit —a decision
requiring Pennsylvania to stop unnecessarily institutionalizing individuals
with
disabilities who were capable of living in the community and to provide
them with appropriate community-based services. This decision, Helen
L. v. DiDario8, interpreted the ADA’s “integration
mandate” to
ban unnecessary institutionalization even before the Supreme Court
interpreted it similarly in Olmstead v. L.C. 9 . Pennsylvania had argued
that unnecessarily
institutionalizing individuals with disabilities was not discrimination.
After Pennsylvania lost, it asked the full court to rehear the Helen
L. case. It argued again that unnecessary institutionalization was not
discrimination. Judge Alito was one of the judges who voted to rehear
the case. However, there were not enough votes to rehear and the ruling
was allowed to stand.
While we cannot know exactly what Judge Alito’s
reasoning was, his vote to vacate and rehear one of the most important
victories for
people with disabilities does not bode well.
III. Restricting Enforcement of Rights
Judge Alito’s rulings indicate a troubling pattern with respect
to the ability to enforce critical rights for people with disabilities.
Restricting Medicaid Enforcement?
Judge Alito filed a concurrence in Sabree v. Houstoun,10 suggesting that future Medicaid recipients may be unable to enforce
the rights
that Congress gave them. Recipients had challenged Pennsylvania’s
failure to provide community-based intermediate care facilities for
individuals
with mental retardation in accordance with its obligations under
the Medicaid program. The trial court dismissed the case, ruling that
Medicaid
recipients had no right to enforce the requirements in the Medicaid
Act that covered services must be provided promptly.
The Third Circuit
reversed, finding that Medicaid recipients could go to court to enforce
their right to receive covered services. Judge Alito
concurred because the decision was supported by “currently binding
precedent.” He noted, however, that “the analysis and direction
of the District Court may reflect the direction that future Supreme Court
cases in this area will take . . . .”11
Judge Alito’s contention that the Supreme Court may head in the
direction of the trial court’s decision —despite Supreme
Court precedent that clearly supported individual enforcement of the
Medicaid rights at issue— suggests that Judge Alito has some
discomfort with current Supreme Court precedent. The trial court’s
decision holding that Medicaid recipients could not enforce any Medicaid
rights was one of the most sweeping decisions concerning Medicaid enforcement.
Judge Alito’s belief that the Supreme Court may ultimately
follow the path of this decision raises serious concerns.
HUD Cannot be Required to Enforce its Own Accessibility Regulations
Judge Alito joined an opinion concluding that a federal agency could
not be sued for failing to enforce its own regulations concerning
accessible housing for people with disabilities. In ADAPT v. United
States Dep’t
of Housing & Urban Development,12 the
plaintiffs alleged that HUD had not fulfilled its duty to ensure
that multi-family housing
was accessible
and adaptable to people with disabilities, and that HUD failed to
investigate complaints of inaccessible housing and take enforcement
action where
federally funded housing did not meet HUD’s accessibility rules.
The plaintiffs noted that HUD officials had acknowledged widespread
compliance problems, but refused to respond adequately. The Third
Circuit affirmed
the dismissal of the plaintiffs’ claims, holding that despite
HUD’s
failure to follow the clear guidelines in its own regulations, there
was not adequate law for the court to apply to determine whether
HUD violated the law.13
Ironically, the Third Circuit later ruled that individuals could not
sue a housing authority for failure to comply with HUD regulations concerning
accessible housing.14 Judge Alito was not involved in that case, but
his decision in the ADAPT case has contributed to the catch-22 that faces
people with disabilities in his jurisdiction who need accessible housing:
They cannot go to court to require HUD to enforce compliance with its
accessible housing regulations, nor can they go to court to bring their
own action to enforce these regulations.
IV. Other Areas of Concern
Judge Alito has issued a number of other rulings that raise serious
concerns for people with disabilities.
- Flagging test scores permitted where individuals received
testing accommodations: Judge Alito joined a decision vacating
an injunction that stopped the National Board of Medical Examiners
from flagging
the test scores of individuals who received accommodations on their
medical
licensing exams due to their disabilities.The plaintiff had received
accommodations due to his multiple sclerosis and claimed that the
medical board’s practice of flagging accommodated test scores
that it felt might not be comparable to other test scores subjected
him to possible
discrimination by internship and residency programs. These programs
frequently consider candidates’ licensing exam test scores. The
trial court ruled that the medical board had not shown that it was
necessary
to flag
scores.
The Third Circuit reversed, holding that the ADA’s provisions
requiring accessible testing and licensing exams did not specifically
forbid the flagging of accommodated test scores. The court refused to
read the general nondiscrimination provision of Title III to forbid flagging.
This decision, which was joined by Judge Alito, reflects an unduly narrow
reading of the ADA’s bar on discrimination. Congress meant the
ADA to cover a broad range of circumstances, and did not spell out each
specific practice that might be prohibited by the law. The Doe v.
National Board of Medical Examiners decision would have serious consequences for
people with disabilities who experience the many types of discrimination
that are not explicitly spelled out in the ADA.
- Woman fired immediately
upon return from three weeks of hospitalization for depression and
sleep disorder not covered by the ADA or FMLA: Judge
Alito joined an extremely troubling opinion affirming the dismissal
of an employee’s ADA and FMLA claims challenging her firing.15 Yvette
Katekovich was hospitalized for approximately three weeks due to depression
and a sleep disorder. Her employer was informed of the reason for her
hospitalization. When she notified her supervisor that she had been
cleared to return to work and would return that day, however, the supervisor
told her that she was fired. The Third Circuit affirmed summary judgment
for the employer on the ground that Katekovich was not a person with
a disability protected by the ADA. The court did not consider whether
she was regarded by the employer as having a disability.16
The court
also ruled against Katekovich on her FMLA claim. The FMLA provides
that an employer may not fire an employee because she has taken
leave permitted by the FMLA. Here, the court ruled inexplicably that,
because the employer had failed to designate Katekovich’s leave
as FMLA leave, it did not fire her because of FMLA leave.17 In
addition, the court ruled that Katekovich did not present sufficient
evidence to
show that she was able to return to work. The FMLA, however, puts
the burden of proof on the employer to show that the employee was unable
to return to work.
- Zoning board not required to engage in an interactive
process to accommodate developer seeking zoning approval for a facility
for seniors: Judge Alito
joined an opinion affirming summary judgment against a real estate
developer who sought to develop a 95-bed assisted living facility for
seniors.18 Among other things, the court
held that the Fair Housing Amendments Act (FHAA) did not require the
zoning board to engage in an interactive
process
with applicants requesting variances or site plan approvals as reasonable
accommodations to provide equal access for people with disabilities.
It concluded that an interactive process for requesting accommodations
applies only in the context of the workplace, and not in the context
of housing and land use.19 This decision means that only in the context
of employment must affirmative efforts be made to identify possible
reasonable accommodations for a person with a disability.
- Eliminating protection for most discrimination based on HIV or AIDS: While he was an assistant attorney general in the Justice Department, Alito helped author a departmental legal opinion arguing for severe limitations on Section 504's protection from discrimination based on HIV, AIDS, and AIDS related conditions. The opinion stated that Section 504 allows discrimination based on a person’s AIDS or HIV if the discrimination is based on fear of contagion – even unreasonable fear.
This argument, had it prevailed in the courts, would have eliminated virtually all protection against discrimination based on AIDS or HIV status. Most discrimination against people with HIV or AIDS is based on fear of transmission of the disease. Section 504 would provide no protection against such discrimination if Alito’s view had become law.
The Supreme Court has twice rejected Alito’s arguments. See School Board of Nassau County v. Arline 20 (discrimination based on a disease’s contagion was the same as discrimination based on the disease itself) and Bragdon v. Abbott 21 (person with asymptomatic HIV was protected by the ADA because she was substantially limited in reproduction due to the possibility of transmitting the disease to a fetus).
- No protection for worker with developmental disabilities who was brutally assaulted physically and sexually: In Pirolli v. World Flavors, Alito dissented from an opinion reinstating claims brought by an employee with developmental disabilities who was subjected to repeated cruel assaults. The man’s coworkers forcibly sodomized him with a broom, stuffed him into a garbage can, beat him, and made humiliating comments about his mental disability. The trial court dismissed the man’s claims, ruling that he had not proved anything beyond “macho horseplay and adolescent roughhousing in a context where such behavior was the common and accepted mode of social interaction 22. The Third Circuit reversed, finding that the treatment Pirolli experienced was “severe and pervasive enough to create an abusive work environment.”
Judge Alito dissented. He explained that he would have upheld the trial court’s decision in its entirety because Pirolli did not use the proper language in his brief – he did not state “that his work environment was one that a reasonable non-retarded person would find hostile or abusive.”
- Membership in an organization protesting equal rights for women, minorities and people with disabilities: Judge Alito was a member of Concerned Alumni of Princeton (CAP), an alumni group that was widely known for its opposition to the admission of women and minorities as students at Princeton. The group also expressed blatant hostility toward people with disabilities. A 1983 essay in CAP’s magazine, Prospect, titled “In Defense of Elitism,” complained that “People nowadays just don’t seem to know their place.” The article stated that “[e]verywhere one turns blacks and hispanics are demanding jobs simply because they’re black and hispanic” and “the physically handicapped are trying to gain equal representation in professional sports.” Alito highlighted his membership in CAP when he applied for a job with the Reagan Administration in 1985.
IV. Conclusion
Judge Alito’s nomination raises serious concerns for people with disabilities. We emphasize that decisions described here are merely highlights from Judge Alito’s long record, which includes a number of positive decisions, as well as additional negative decisions, for people with disabilities. The decisions described here are among the most important, and most troubling on disability issues. This record strongly suggests that confirming Judge Alito to the Supreme Court seat being vacated by Justice O’Connor will result in numerous restrictions on the rights that individuals with disabilities have fought so hard to obtain.
1. Chittister v. Department of Community & Economic Development,
226 F.3d 223 (3d Cir. 2000).
2. Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003).
3. Chittester, 226 F.3d at 229.
4. United States v. Rybar, 103 F.3d 273, 286-94 (Alito, J., dissenting).
5. 103 F.3d at 291.
6. Gonzales v. Raich, 125 S.Ct. 2195 (2005).
7. Id. at 2205, 2211.
8. 46 F.3d 325 (3d Cir. 1995).
9. 527 U.S. 581 (1999). In Olmstead, the Supreme
Court gave states a broader defense to integration claims than the Third
Circuit had in Helen L.
10. 367 F.3d 180 (3d Cir. 2003).
11. Id. at 194 (Alito, J., concurring).
12. 170 F.3d 381 (3d Cir. 1999).
13. Id. at 384-89.
14. Three Rivers Center for Independent
Living v. Housing Authority of Pittsburgh, 382 F.3d 412 (3d Cir. 2004).
15. Katekovich v. Team Rent A Car of Pittsburgh,
Inc., 36 Fed. Appx.
688 (3d Cir. 2002).
16. Id. at 690.
17. Id. at 691.
18. Lapid Laurel, L.L.C. v. Zoning Board
of Adjustment of Scotch Plains,
284 F.3d 442 (3d Cir. 2002).
19. Id. at 455.
20.481 U.S. 1024 (1987).
21.
524 U.S. 624 (1998).
22.
1999 WL 1065214 (E.D. Pa. Nov. 23, 1999).
|
