In 1990, the Americans with Disabilities Act (ADA) passed both houses of Congress with broad bipartisan support and was signed into law by a Republican president. It thus proves a useful measure in assessing just where the political center resides in the current debate on the courts and the authority of Congress to invoke federal protections.
A close look at Judge Alito 's opinions and writings as a judge on the U.S. Third Circuit Court of Appeals makes it clear that his views are outside what we used to call "the mainstream" and that he would likely reverse the historic gains of people with disabilities. He has relied repeatedly on a cramped vision of congressional authority to protect the rights of all citizens, and he has routinely ignored the factual record of discrimination and abuse of people with disabilities.
Alito's decisions offer insight into his disturbing judicial philosophy and provide good reasons for why all fair-minded Americans should think twice about seeing him confirmed to the Supreme Court.
• In Nathanson v. Medical College of Pennsylvania, Alito wanted to deny a court hearing to a woman who claimed the school reneged on promises to provide her with special seating and other accommodations for her disabilities. Alito 's fellow Third Circuit judges said the standard of evidence that Alito wanted her to meet was so restrictive that "few if any cases would survive " motions to dismiss.
• In Sabree v. Houstoun, Medicaid recipients challenged Pennsylvania's failure to provide community-based intermediate care facilities for individuals with mental retardation. In a precedent-shattering verdict, the trial court ruled that the recipients had no right to go to court to enforce the requirements of the Medicaid Act. The Third Circuit reversed that ruling, declaring that they did. In Alito 's opinion, however, he noted that "the analysis and direction of the District Court may reflect the direction that future Supreme Court cases in this area will take..." This raises an ominous possibility for the direction of Alito 's Supreme Court.
• In Adapt v. U.S. Department of Housing and Urban Development, Alito held that a federal agency could not be sued for failing to enforce its own regulations on making housing accessible and adaptable for people with disabilities even though HUD officials had admitted widespread compliance problems.
These cases and others indicate that Alito 's confirmation would put at risk the Americans with Disabilities Act (ADA); the Olmstead et al v. L.C. decision against institutionalization; Section 504 of the Rehabilitation Act; the Fair Housing Amendments Act; the Family and Medical Leave Act (FMLA); and other laws and precedents of great importance to people with disabilities.
For these reasons, a coalition of hundreds of national, state and local organizations concerned with these rights has united to oppose Judge Alito 's nomination. They include ADA Watch/National Coalition for Disability Rights, ADAPT, the Association of Programs for Rural Independent Living, the Disability Rights Education and Defense Fund, Judge David Bazelon of the Center for Mental Health Law, the Disabled Action Committee, the National Association of People with AIDS, the National Association of Rights Protection and Advocacy, the National Council on Independent Living, The Polio Society, the World Association of Persons with Disabilities and many more.
When President George H. W. Bush signed the Americans with Disabilities Act into law in 1990, he declared that our nation ''will not accept, we will not excuse, we will not tolerate discrimination in America.'' But the promise imbued in those words will be much harder to keep if Samuel Alito is confirmed to the Supreme Court.
A fair and just nation should measure its progress not on the promises it makes, but on the promises it keeps -- particularly for people who are likely to face discrimination.
ADA Watch/National Coalition for Disability Rights
1201 Pennsylvania Avenue, NW, Suite 300
Washington, DC 20004