Senator Feinstein shocked civil and disability rights advocates with her vote to send Jeffrey Sutton's nomination to the floor, in spite of his history of attacks on the rights of people with disabilities.

***
Gather at Feinstein's office at 12 noon this Thursday 20th February and remind her that there's still time to change her vote - and that she should be representing the people. 11111 Santa Monica Blvd, suite 915 - this is on the corner of Santa Monica and Sepulveda, in West LA. Also, call Feinstein's office at 310 914 7300
***

Disability rights issues are civil rights issues. They are about enabling people to live with dignity and independence. You may not feel they are relevant to you right now, but remember, you or someone you love could become disabled in an accident at any time. It's a minority group which still faces discrimination and barriers both subtle and obvious, on a wide scale - and a minority which any of us could join, at any time.


Jeffrey Sutton has a record of advocacy hostile to the interests of the disability community. He has not simply taken an unpopular position in the name of zealously representing a client. Instead, he has aggressively pursued a national role as the leading advocate for a group of far-right legal theorists attempting to limit Congress's power to protect individuals' civil rights. He has acknowledged that he is "on the lookout" for cases where he can present this view, and he has devoted his career to advancing the cause of federalism.

Sutton argued that the protections of the Americans with Disabilities Act of 1990 (ADA) were "not needed" to remedy discrimination by states against people with disabilities. He also argued that Medicaid rights are unenforceable by individual recipients. Sutton's arguments can, and no doubt will, be extended to claim that rights under the Rehabilitation Act and the Individuals with Disabilities Education Act (IDEA) are unenforceable as well. Instead of Congress extending protections through federal civil rights laws, Sutton believes that states should be the "principal bulwark in protecting civil liberties" - a statement that has grave implications given the massive record of state-sanctioned discrimination against individuals with disabilities.

Attacks on the ADA

Jeffrey Sutton actively sought involvement in a case that severely limits the rights of persons with disabilities. Sutton argued before the Supreme Court in Board of Trustees of the University of Alabama v. Garrett that Congress had no power to authorize individuals with disabilities to file lawsuits for damages against states for violating the Americans with Disabilities Act.

Sutton argued that Congress had no power to apply the ADA to the states because "[in passing the ADA, Congress did not identify any pattern or practice of unconstitutional State action, or for that matter, even a single instance of such conduct." Despite the massive record of egregious conduct toward individuals with disabilities by states that Congress had compiled -- including instances of forced sterilization of individuals with disabilities, unnecessary institutionalization, denial of education, and systemic prejudices and stereotyping perpetrated by state actors -- Sutton argued that states were actually in the forefront of efforts to protect the rights of individuals with disabilities.

Sutton persuaded the Supreme Court's conservative majority to rule, in a 5-4 decision, that individuals with disabilities who are state employees cannot sue their employers for damages under Title I of the ADA. Garrett not only prevents persons with disabilities from collecting monetary damages from state employers. Significantly, the decision has resulted in fewer attorneys being willing to represent individuals in an ADA cases against state employers.

While Jeffrey Sutton has tried to characterize his argument in the Garrett case as limited to ADA claims for money damages, the implications are much broader. Despite Sutton's assurances to the Supreme Court that he "doubt[ed] anyone would ever bring . . . an across-the-board attack on the law," states have been raising such challenges across the country and some courts have ruled that even ADA claims that do not involve money damages cannot be brought against state actors.

Jeffrey Sutton also filed a brief representing the state of Georgia before the Supreme Court in Olmstead v. L.C. Sutton argued in Olmstead that states had no duty under the ADA to serve individuals with disabilities in integrated settings. Sutton argued that unnecessarily keeping people with disabilities in institutions was not a form of discrimination. Fortunately, the Supreme Court did not accept his arguments in that case.

What would happen if Jeffrey Sutton got his way?

Individuals with disabilities would be segregated in institutions despite professional opinion that they would be better served in the community.

Impoverished children and adults denied the basic medical care guaranteed to them under the Medicaid program would be unable to enforce their rights.

State governments would be free to exclude people with disabilities from their programs and services, including health care, education, roads and streets, public buildings, and welfare benefits, without fear of having to compensate those individuals for the discrimination they suffered.

Sutton has already ensured that state employees with disabilities can no longer seek compensation from their state employers for violating ADA.