Jeffrey Sutton: Taking Aim at the Rights of Persons With Disabilities
July 26, 2001—The confirmation of Jeffrey S. Sutton to the
U.S. Court of Appeals for the Sixth Circuit would undermine the core
protections
and services afforded by Congress to persons with disabilities. Jeffrey
Sutton has a record of advocacy hostile to the interests of the disability
community. He has aggressively pursued a national role as the leading
advocate for a group of far-right legal theorists attempting to limit
Congress's power to protect individuals' civil rights. He has acknowledged
that he is "on the lookout" for cases where he can present this view.
Sutton argued that the protections of the Americans with Disabilities
Act of 1990 (ADA) were "not needed" to remedy discrimination by states
against people with disabilities. He also argued that Medicaid rights
are unenforceable by individual recipients. Sutton's arguments can, and
no doubt will, be extended to claim that rights under the Rehabilitation
Act and the Individuals with Disabilities Education Act (IDEA) are unenforceable
as well. Sutton believes that states should be the "principal bulwark
in protecting civil liberties" - a statement that has grave implications
given the massive record of state-sanctioned discrimination against individuals
with disabilities.
Yet, still, Sutton claims that he is not attacking disability rights,
but instead merely advancing a theory of limited government. That claim
is disingenuous. Jeffrey Sutton believes that Congress acted improperly
in enacting many of the core protections for people with disabilities.
He has attempted to dismantle these protections one by one in the federal
courts. The arguments that Sutton has advanced would make a mockery of
many of the critical rights for which individuals with disabilities have
fought so hard.
Jeffrey Sutton has worked to thwart the spirit and purpose of the ADA
and other civil rights laws. He should not be confirmed.
Jeffrey Sutton Has Attacked Critical Laws Protecting People with Disabilities
Attacks on the ADA
- Jeffrey Sutton persuaded the Supreme Court's conservative majority
to rule, in a 5-4 decision in Board of Trustees of the University
of Alabama v. Garrett, that Congress had no power to allow state
employees to sue their employers for damages under Title I of the ADA.
Significantly, the decision has resulted in fewer attorneys being willing
to represent individuals in ADA cases against state employers.
- Sutton argued that Congress had no power to apply the ADA to the
states because A[in 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 -- Sutton argued that states were actually in the
forefront of efforts to protect the rights of individuals with disabilities.
- While Jeffrey Sutton has tried to characterize his argument in
the Garrett case as limited to ADA claims for money damages, the
implications are much broader. Despite Sutton's assurances to the
Supreme Court that he "doubt[ed] anyone would ever bring . . . an
across-the-board attack on the law," states have been raising such
challenges across the country and some courts have ruled that state
actors are entirely immune from ADA suits.
- Jeffrey Sutton also represented the state of Georgia before the Supreme
Court in Olmstead v. L.C. Sutton argued in Olmstead that states
had no duty under the ADA to serve individuals with disabilities in
integrated settings. Sutton argued that unnecessarily keeping people
with disabilities in institutions was not a form of discrimination.
Fortunately, the Supreme Court did not accept his arguments in that
case.
Attacks on Medicaid, Section 504, and IDEA
- Jeffrey Sutton has also launched a direct attack on the ability of
Medicaid recipients to enforce their rights under the law, which will
also jeopardize the ability of individuals with disabilities to enforce
their rights under the Rehabilitation Act and the IDEA.
- Jeffrey Sutton argued to the Supreme Court in Alexander v. Sandoval
and to a Michigan federal court in Westside Mothers v. Haveman
that Congress cannot use its power under the Spending Clause to authorize
individuals to sue the states to enforce their rights. Sutton argued
that the Medicaid law and other Spending Clause laws, such as the Rehabilitation
Act and the IDEA, are not supreme federal law, but instead are merely
contracts between the federal government and the states. This is counter
to over sixty-five years of Spending Clause jurisprudence.
- The Michigan court adopted Sutton's arguments and held that Medicaid
beneficiaries cannot sue to enforce their rights. As a result, impoverished
children and adults who are not getting basic medical care guaranteed
them under the Medicaid program have been unable to enforce their
rights. The court stated that the only way their Medicaid rights
may be enforced is by the federal government withholding Medicaid
funds to the states -- which would result in Medicaid recipients
not getting needed services. States have begun citing the Westside
Mothers decision in cases across the country in an effort to
persuade other courts to rule that people with disabilities have
no right to enforce their rights under Medicaid or Section 504.
- The implications of Sutton's argument do not stop at Medicaid
beneficiaries. Indeed, Sutton's argument extends to all legislation
enacted on the basis of the Spending Clause. If Sutton's arguments
were to be adopted by other courts, they would bring an end to private
enforcement of IDEA and the Rehabilitation Act as well as Medicaid.
- Finally, Sutton argued to the Supreme Court in Alexander v.
Sandoval that individuals cannot privately enforce regulations
under Title VI, a race discrimination statute, that prohibit states
and others receiving federal funds from doing things that have the
effect of discriminating based on race or national origin. In a
5-4 decision, the Court accepted Sutton's position. Since then,
states have begun to use the Sandoval decision in efforts
to persuade courts that people with disabilities should not be allowed
to enforce regulations under Section 504 and Title II of the ADA
requiring reasonable accommodations and integration of individuals
with disabilities.
Jeffrey Sutton represents a grave threat to the rights of individuals
with disabilities. People with disabilities fought hard to secure the
much-needed protections afforded by the ADA, Section 504, the IDEA, and
Medicaid. We do not want to see those protections systematically stripped
away as a result of the appointment of Jeffrey Sutton to the Sixth Circuit
Court of Appeals.
Prepared by the Judge David L. Bazelon Center for Mental Health Law
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