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Disabling the ADA, One Nominee at a Time

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file=/chronicle/archive/2005/03/01/EDGJJBHDRV1.DTL

From The San Francisco Chronicle, http://sfgate.com/, courtesy of ADA Watch and the National Coalition for Disability Rights:

by Herb Levine
San Francisco Chronicle
Tuesday, March 1, 2005

In 1990, the first President Bush signed the Americans with Disabilities Act and proclaimed, "Let the shameful wall of exclusion finally come tumbling down."

Fifteen years later, George W. Bush is apparently rebuilding that wall by undermining the ADA through judicial appointments. Bush is nominating judges who are outspoken, if not radical, in their opposition to the ADA and the protections for people with disabilities. In an ironic Republican twist, if these judges had their way, civil rights for people with disabilities would regress, prohibiting full participation in society and putting more people with disabilities on government assistance.

A case in point is the nomination of Terrence W. Boyle to the U.S. Court of Appeals in Richmond, Va. His confirmation hearings in Washington begin this week before the U.S. Senate Judiciary Committee, on which Sen. Dianne Feinstein, D-Calif., sits. Were Boyle to be confirmed, it would further erode the protections people with disabilities have enjoyed under the ADA.

Boyle's record of decisions in U.S. District Court concerning the ADA is a direct attack on the civil rights of people with disabilities; he has consistently ruled that the ADA is, in effect, unconstitutional. Many of his rulings are based on radical interpretations of disability-rights laws, which are often inconsistent with basic disability law and interpretations found in other courts and government enforcement agencies.

Without the ADA, many people with disabilities would not get a chance to become productive taxpayers and members of the workforce. Anyone who has a disability or knows someone with a disability knows of the discrimination that takes place: from the woman who is blind and doesn't get a job because a potential employer doesn't understand that she can do the job with computer software to the paraplegic who can't serve on a jury because he can't get his wheelchair into the jury box.

Yet, to hear it from Boyle, the ADA is an evil entitlement program that has nothing to do with civil rights. Boyle has gone so far to say that the ADA's civil-rights significance is invalid, stating in Pierce vs. King in 1996, "Although framed in terms of addressing discrimination, the Act's operative remedial provisions demand not equal treatment, but special treatment tailored to the claimed disability."

This example is typical of how he has ruled against the validity of the ADA and the protections people with disabilities have in fighting discrimination. Boyle joins Bill Pryor, a nominee for the U.S. Court of Appeals in Atlanta, and Jeffrey Sutton, who was confirmed to the U.S. Court of Appeals in Cincinnati, as activist judges who are being elevated to positions that will significantly affect the civil rights of people with disabilities.

As confirmation hearings in the Judiciary Committee begin, it is imperative for members of the committee, including Feinstein, to look beyond the general litmus tests of the hot-button topics of abortion and same-sex marriage and to civil rights for millions of people with disabilities. If the federal courts continue to chip away at the ADA, there will soon be no ADA left to whittle, reconstructing the barriers the first President Bush hoped to eliminate in 1990. What we would be left with is a whole segment of our population who would no longer be active participants in society but would be encouraged to wait for a handout, go to an institution and keep away from the rest of us.

A Boyle confirmation would relegate disability to the dark ages of the early 20th century, when access to public facilities was not a recognized right. Erosion of civil rights in the U.S. Court of Appeals is erosion in civil rights nationally. The ADA is, slowly but surely, increasing access by our community to education, jobs and a better life. Boyle, through his legal interpretations, is working to stop that access.

Herb Levine is executive director of the Independent Living Resource Center in San Francisco (www.ilrcsf.org)

© 2005 San Francisco Chronicle

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