Archive for July, 2009


July 16, 2009


Ethan B. Ellis

 Samuel Johnson, 18th century British commentator, wordsmith and wit, described patriotism as the last refuge of scoundrels, referring to rascals who hid behind the flag when doing dirty deeds.

 Let me nominate some other candidates, no less scurrilous: the 11th Amendment to the U.S. Constitution and those who hide behind it to deny services to people with disabilities in New Jersey…yes, I mean the Corzine Administration. Let me explain.

 Disability Rights NJ, our Protection and Advocacy System, has filed three suits against Corzine for failing to provide legally required services to people with developmental disabilities on community waiting lists and in developmental centers and people kept in psychiatric hospitals illegally. A year ago, Corzine broke off negotiations to settle the suits on the grounds that he didn’t have enough money to obey the law. As one wag put it, he’d rather spend the money to pay his lawyers than buy the services people need.

 That’s where the 11th Amendment comes in. The first argument his lawyers made is that Disability Rights NJ and the people with disabilities it represents can’t sue the state because the amendment says so.

 Now, what the amendment really says is that the citizens of one state can’t sue another state. The amendment has a long and checkered past, but it’s worth looking at because states have been using it a lot in cases involving people with disabilities.

 Adopted hastily in 1798, it was intended to protect states that had gone bankrupt during the American Revolution from being sued by people from other states for money those states owed them. Ever since, the U.S. Supreme Court has been trying to make up its mind what the amendment really means. Almost 200 years ago, it actually said it meant that citizens couldn’t sue their own states, but it hasn’t stuck to that interpretation consistently, especially when it applies to disability law.

 In 1999, the court allowed two citizens of Georgia to successfully sue the state to get out of an institution there in the famous Olmstead case, which upheld the constitutionality of the Americans with Disabilities Act (the ADA), prohibiting discrimination against people with disabilities. Two years later, it turned around and refused to let two state employees sue Alabama for employment discrimination (Alabama University vs. Garrett), based on the opposite reading of the amendment.

 This time it argued that the ADA didn’t apply to the states because there was no evidence that they had a history of discriminating against us. When activists pointed out that the legislative history of the law was filled with testimony about state discrimination against people with disabilities, newspaper editorials all over the country blasted the Garrett decision and the court reversed itself within a week, letting stand a silly suit by a blind prisoner in Illinois who had won the right to turn his jail into a country club on the grounds that he was just asking for a reasonable accommodation under the ADA.

 Introducing the 11th Amendment claim as a defense in the waiting list suit has done two things: it has delayed the settlement of the suit even further and it has brought the Obama Justice Department into the case to argue against its applicability. While we welcome the support of the Justice Department, that may also extend the delays and justice delayed is justice denied.

All’s fair in love and law, but the fact that lawyers for the State of New Jersey are trying to get the ADA declared unconstitutional just so they can avoid serving us is despicable. Tell Corzine and his Attorney General to stop hiding behind this discredited legal argument; tell them to stop hiding behind the last refuge of scoundrels. Go to the Next Step Take Action page and send them a message that even they can’t misread.