My long, discursive posts are a rare and treasured thing (NOT!). But I think it's useful to spend some time discussing the likely impact of the Democratic takeover of Congress on disability law. Since the Supreme Court's 1999 trilogy of definition-of-disability decisions (Sutton
, and Albertson's
), many in the disability community have felt that it made sense to go back to Congress to get legislation to restore what the main sponsors of the law intended. As the negative decisions from the Supreme Court have accumulated (though with some bright spots, like Lane
), that feeling has gotten stronger. (For the National Council on Disability's take on what amendments are necessary, see this report
.) For a long time, the fear of opening up the ADA to even more restrictive amendments (like the ADA Notification Act
) kept the disability community from mounting a full-scale effort to seek amendments to the statute.
Even before the elections last week, the momentum was beginning to shift. In late September, Representative Sensenbrenner (then the Chair of the House Judiciary Committee) introduced a bill
, cosponsored by Representatives Conyers and Hoyer, that would reverse the Court's definition-of-disability decisions. And in August Senator DeWine, facing a tough reelection fight, introduced a bill
that would reverse the Garrett
sovereign immunity decision (a bill that was functionally equivalent to a proposal that had been made by Senator Leahy some years back). And my purely impressionistic sense is that many folks in the disability community who had previously feared reopening the ADA had ultimately come to the conclusion that judicial decisions had so hamstrung the statute that taking that course was now worth the risk.
So the natural question is what effect the change in control of Congress will have on this state of affairs. I think it's now quite a lot more likely that some sort of "ADA Restoration Act" will pass -- which isn't to say that it definitely, or even probably, will pass. It would be smart political strategy for the Democrats in Congress to push issues that hold their party together but that divide the Republicans. Played right, the ADA could be one of those issues. Lots of prominent Republicans are vocal supporters of the ADA (see soon-to-be-former Senator DeWine, above, or Arlen Specter, or the President of the United States), but a lot of the opposition to and criticism of the statute comes from Republicans as well (look at the list of sponsors of the ADA Notification Act). Democrats, by contrast, have been pretty unified on the statute.
And the incoming Democratic leadership is very pro-ADA. Senator Leahy (new Chair of the Judiciary Committee) and Senator Kennedy (new chair of the Senate Labor Committee (sorry, the "HELP Committee" sounds too ridiculous)), have strongly supported the ADA from the beginning, as have Representatives Conyers and Miller (who will now chair the equivalent committees in the House). Representative Miller even held field hearings
at the San Francisco "Sign 504" protest in 1977 (along with the late, great Phil Burton), so he's been supporting these issues since well before the ADA. Representative Hoyer, who is one of the two candidates for House Majority Leader, was a key sponsor of the ADA when it passed in 1990, and has been a vocal critic
of the Supreme Court's limiting decisions.
But I think a lot depends on the particular aspects of the ADA the Democrats seek to bring forward. Sovereign immunity seems to me the most fertile ground politically. Some Republicans will probably vote for a sovereign immunity fix like that in the DeWine bill, and nearly all Democrats will vote for it. The President, whose own Justice Department has vigorously argued for abrogation of sovereign immunity under the ADA (including sending out the Solicitor General himself, Paul Clement, to argue for abrogation in the Georgia
case), will be hard pressed not to sign it. Only the hard-core states-rights people will be on the other side. Senators Leahy and Kennedy have been strong supporters of overturning Garrett
in the past. They will be be in a good position to push this legislation through.
I also think there's a decent chance of overturning the Buckhannon
decision, which eliminated the "catalyst theory" for attorneys' fee recovery in civil rights cases. (For a discussion of Buckhannon
, see this NCD report
has been bad for civil rights litigation generally, but (as I argue in my UCLA piece
) particularly devastating for ADA litigation challenging inaccessible businesses. Senator Feingold, who should now chair the constitutional rights subcommittee, introduced a bill
way back to overturn the case. Again, it's hard to see many Democrats opposing such a bill. An effort to overturn Buckhannon
may get caught up in small-business owners' objections to serial ADA litigation, but (as I also suggest in my UCLA piece), I think there's clearly a compromise available that should satisfy legitimate objections of business owners: Overturn Buckhannon
, but require pre-suit notice in ADA public-accommodations accessibility cases. So long as attorneys' fees are awardable for an attorney's pre-notice investigation in cases where the notice induces compliance (something that could be made clear in the statute), a notice requirement would not get in the way of enforcement of the ADA under a regime that had the catalyst theory.
The definition of disability is in many ways the big prize, but in some ways it's probably the most difficult issue on which to get legislation passed. The fact that Representative Sensenbrenner introduced the bill to reverse the Supreme Court's definition-of-disability decisions demonstrates that there will be at least some Republican support for such an effort, and I'd certainly be in favor of such a bill. But a broad return to the 1988 version of the ADA bill (which defined "disability" as a present, past, or perceived "impairment," without any requirement that it substantially limit a major life activity) -- which is what the Sensenbrenner bill would do -- seems very vulnerable politically. I'm not sure the American public -- or even the Democratic majority -- is ready for a law that says that wearing eyeglasses is a disability that entitles one to accommodation. I'd be willing to have that argument (something that may be a change from what I've thought in the past), but I have my doubts that it would be successful. Again, I think that a compromise might be the best thing here. Such a compromise could make clear that people with epilepsy, diabetes, schizophrenia, and like conditions, and who use devices like hearing aids and prosthetics, are protected -- but it could do so without returning to the attempted 1988 definition.
Any thoughts? Feel free to post them in comments.