Action Alert: Campaign to Save the ADA

Medical Board of California v. Hason Questions ADA's Constitutionality

Update: California Medical Board Drops Hason Petition (3/4/03) Legal Documents on Medical Board of California v. Hason Bazelon Center Action Alert: Prevent Jeffery Sutton's Confirmation (1/06/03) Bazelon Center Action Alert: Jeffrey Sutton -Taking Aim at the Rights of Persons With Disabilities (7/26/01) Additional Resources on the Americans with Disabilities Act available from the Bazelon Center ADA Watch Get Involved... Support the Bazelon Center. Your tax-deductible donation helps the Bazelon Center keep you informed on important developments in mental health law and policy. Not a Subscriber? Sign up now to receive action alerts and updates from the Bazelon Center.

January 6, 2003-- The Americans with Disabilities Act (ADA) is menaced on two fronts as the new year begins. The Supreme Court is preparing to hear yet another case questioning the federal anti-discrimination law's constitutionality, and the Senate Judiciary Committee is about to take up President Bush's nomination of Jeffrey Sutton to the U.S. Court of Appeals for the Sixth Circuit. Swift action by disability advocates is needed on both.

• More information on Medical Board of California v. Hason
• More Information on the nomination of Jeffery Sutton to the U.S. Court of Appeals for the Sixth Circuit

The Hason Case

Michael Hason M.D. was denied a medical license because he had a history of depression. Dr. Hason tried to sue the Medical Board under Title II of the ADA, which prohibits discrimination by state and local governments. The board, a state agency, argued that it is immune from suit under the 11th Amendment. At issue is whether Congress had the constitutional authority to subject states to suits for money damages under Title II of the ADA. A negative ruling might suggest that Congress did not have the power to enact many of the core protections in Title II.

Your Help is Needed

Advocates for people with disabilities helped limit the damage of earlier Supreme Court challenges to the ADA through their work in the states. They need to do so again for the Hason case.

Hason is the latest in a series of "states' rights" cases in which the Supreme Court has found that Congress did not have the power to subject the states to suit under various civil rights statues. In University of Alabama v. Garrett, the court accepted Jeffrey Sutton's argument that state employees could not sue their employers for money damages under Title I of the ADA, which bans employment discrimination. In Kimel v. Florida Board of Regents, the court held that states are immune from suits for damages under the Age Discrimination in Employment Act. This term, in Nevada Dept. of Human Resources v. Hibbs, the court will consider whether states are immune from damages suits under the Family and Medical Leave Act. The Supreme Court will probably hear the Hason case in March and issue its decision by late June.

Disability rights advocates worked too long and too hard to enact the ADA to see its protections wiped out by a "states' rights" argument. As they did in Garrett and in Olmstead v. L.C., which upheld the right of people with disabilities to receive services in an integrated setting, advocates can make a difference in Hason. The state of Minnesota has agreed to file a brief in support of the ADA, but other states are likely to join a brief in support of the states' rights position.

What You Can Do

Here's what you can do to help make sure your state does the right thing:

• Educate disability rights advocates in your state that the threat to the ADA is real and the time to act is now. The states' rights brief in Hason is due on January 10; briefs supporting the ADA are due February 10.
• Work in coalition with other disability rights advocates in your state. Coalitions formed around Olmstead and Garrett are a great place to start. Many state Protection and Advocacy agencies are already working on this issue; contact them to see how you can help. You can find contact information for the protection and advocacy system in your state at the National Association of Protection and Advocacy Systems, Inc website.
• Determine the best way to approach your state. Depending on local politics, consider approaching your governor, attorney general, state legislators, mental health and developmental disability directors, and other state officials with whom you have relationships, including civil rights enforcement attorneys in the state attorney general's office.
• Ask your state to sign on to the Minnesota brief supporting the constitutionality of the ADA. Explain how important the ADA is to you, how the law has a direct and positive impact on your life, and how dismayed you are by the thought that your state would take the position that it should not have to comply with the ADA's requirements.
• If your state will not sign on to a brief supporting the ADA, ask your state officials to at least stay neutral on the issue and not sign on to any "states' rights" brief. It will send the Supreme Court a powerful message if only a handful of states argue that the ADA should not apply to them.
• Do not be discouraged if your state has already challenged the constitutionality of the ADA in pending litigation. Find out what position your state took in Garrett, but also know that governors and other state officials may be unaware and/or unsupportive of litigation positions taken by their state attorneys general, and may be able to influence the state's position in Hason.
• Take advantage of any promises made during your advocacy around Garrett. In many of the discussions, advocates were assured that they would be consulted on such matters in the future. Take state officials up on these commitments now.
• Secure a commitment from your state to continue meeting and working on disability rights issues and to strengthen applicable state laws. Even if your state signs on to a brief opposing the constitutionality of the ADA, all is not lost. State officials may feel compelled to sign on to the brief because of larger "state's rights" issues. If that happens, try to secure a commitment from your governor and attorney general that they will continue to meet and work with you on issues affecting the rights of people with disabilities in your state.
• Try to secure state officials' commitment to ensuring that state laws and regulations provide the same protections as those provided by Title II of the ADA.

Let us know what you've done via materials@bazelon.org (you won't receive anything beyond an automated response, but you'll have our appreciation when we read your email).