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