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Bush Nominee Imperils Gains of Citizens with Disabilities

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By Jim Ward
Originally published April 20, 2005 in the Baltimore Sun

WASHINGTON - When President George H. W. Bush signed the Americans with Disabilities Act (ADA) in 1990, he said this landmark law would enable everyone with a disability to "pass through once-closed doors into a bright new era of equality, independence and freedom."

Yet by nominating Judge Terrence W. Boyle to serve on the 4th U.S. Circuit Court of Appeals, the current President Bush threatens to shatter the legacy his father established 15 years ago. Slowly but steadily, the ADA is helping to remove the obstacles - both physical and attitudinal - that have denied people with disabilities access to the American dream.

Sidewalk curb cuts now permit freer access, not only for wheelchair users but also for strollers and bicycles. Train and subway platforms contain textured surfaces to make them safer for people whose vision is impaired. The ADA helped to prompt the Supreme Court decision that gives people with disabilities greater options to receive services in their homes or communities as opposed to the isolation of institutions.

But the progress created by these and other ADA-related changes will be severely undermined unless the Senate rejects Judge Boyle's nomination. Although the former President Bush hailed the ADA as a "basic civil rights" law, Judge Boyle holds a very different view. Indeed, his record as a judge on the U.S. District Court for the Eastern District of North Carolina should deeply concern the more than 800,000 Marylanders with physical, mental, cognitive and developmental disabilities.

After all, the Court of Appeal to which Judge Boyle has been nominated is the last stop for Maryland residents before the U.S. Supreme Court. Of course, most federal legal cases never reach the Supreme Court. In a 1997 decision, Judge Boyle, who was appointed by President Ronald Reagan in 1984, criticized the ADA as a law that "seeks to single out the disabled for special, advantageous treatment." He also has permitted state officials to use the doctrine of states' rights to avoid complying with the ADA. This states' rights interpretation was later overruled by the Supreme Court.

In another case, Judge Boyle was willing to let an employer largely define the "reasonable" accommodation it was required to make under the ADA for a worker with a disability. Judge Boyle's judgment tipped the playing field so heavily to the employer that a higher court called this part of his ruling "particularly inappropriate."

As a federal judge, his rulings have been reversed more than 150 times - a fact that should give senators an additional reason to question Judge Boyle's ability to render verdicts that are sound and just. President Bush's decision to resubmit Judge Boyle's nomination to the Senate couldn't have come at a more critical time. Last year, a commission of the American Bar Association reported that judges sided with employers in nearly 98 percent of the 304 ADA employment-related cases decided by federal courts last year. The bar commission's conclusion? Federal courts are interpreting the ADA in ways that "still create obstacles for plaintiffs to overcome."

With the odds already stacked against people with disabilities, confirming someone such as Judge Boyle to the nation's second-highest level of courts would make a bad situation even worse. Under the ADA, millions of people with disabilities have entered the public square and are making meaningful contributions in their communities and workplaces.

Judges who deride this progress by pointing to "advantageous" treatment are forgetting what makes America great - our nation's willingness to remove barriers and extend opportunity to all.

Jim Ward, Founder and President
ADA Watch/National Coalition for Disability Rights
1201 Pennsylvania Avenue, NW, Suite 300
Washington, DC 20004
Voice: 202-415-4753
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