Roberts on disabilities

[Jim Devine <jdevine03@xxxxxxxxx>]

Disability Analysis of Judge Roberts' Record

Thanks to the Bazelon Center for Mental Health Law for producing this analysis.

The nomination of John Roberts for the Supreme Court vacancy created
by Justice OConnors retirement poses serious concerns for people with
disabilities. As a judge, a private lawyer, a special assistant to the
Attorney General, and a deputy Solicitor General, John Roberts has
repeatedly argued to narrow the protections of the Americans with
Disabilities Act and other civil rights laws, to give very limited
scope to the powers that allow Congress to pass civil rights laws, and
to limit remedies under civil rights laws. Below is a summary of
Roberts record on disability and civil rights laws.

Narrowing the Protections of the ADA

* In Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002),
Roberts successfully argued to the Supreme Court that a woman who had
developed severe bilateral carpal tunnel syndrome and tendinitis from
working on the assembly line at an auto manufacturing plant could not
prevail in a suit against her employer for failing to accommodate her
disability. Roberts argued that she was not a person with a disability
because she was not sufficiently limited in major life activities
outside of her job. Roberts brief greatly distorted the extent of the
womans limitations. As a result of Roberts advocacy, the Supreme Court
held that the test for coverage under the ADA is a narrow one that
must be strictly applied, and it articulated a more stringent test
than the test set forth in the law itself.

Narrowing the Coverage of Section 504

* In Grove City College v. Bell, 465 U.S. 555 (1984), the Supreme
Court ruled that the requirements of Title IX only applied to the
admissions office of a college that accepted federal funds, and not to
the entire college. This decision applied equally to Section 504 of
the Rehabilitation Act. Several years later, Congress passed a law
overturning this decision and requiring that when an institution
accepts federal funds, the entire institution is subject to the
requirements of Title IX, Title VI, and Section 504. While various
legislative proposals to correct Grove City were pending, John
Roberts, then associate White House counsel, stated in an internal
memorandum that the requirements of Title IX should apply only to the
specific program receiving federal funds, and that the corrective
legislation later passed by Congress would radically expand the civil
rights laws to areas of private conduct never before considered
covered. Had Roberts view prevailed, the antidiscrimination mandates
of Section 504, Title VI, and Title IX would apply to far fewer
entities.

Limiting Enforcement of Medicaid and Other Rights

* In Gonzaga University v. Doe, 536 U.S. 273 (2002), Roberts
successfully argued before the Supreme Court for a restrictive test to
determine whether laws may be privately enforced in court by the
individuals they protect. In that case, the Supreme Court held that an
individual could not go to court to enforce his rights under the
Family Educational Rights and Privacy Act. This case has been used to
defeat the ability of Medicaid recipients to enforce their rights
under the Medicaid Act in numerous cases.

* In Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990),
Roberts filed a brief in the Supreme Court on behalf of the United
States, as deputy Solicitor General, arguing that Medicaid rights were
not privately enforceable. Fortunately, the Supreme Court rejected
this argument, and the Wilder decision has been the basis for most
cases in which courts have permitted Medicaid recipients to enforce
their rights. This victory has been severely eroded by the Supreme
Courts subsequent Gonzaga, in which Roberts argued to limit private
enforcement of statutes.

* In Suter v. Artist M., 503 U.S. 347 (1992), Roberts successfully
argued to the Supreme Court on behalf of the United States, as deputy
Solicitor General, that children could not enforce their rights under
the Adoption Assistance and Child Welfare Act to require states to
make reasonable efforts to preserve and reunite their families. This
decision has been used to defeat individuals ability to enforce their
rights under many other important statutes as well.

Limiting Remedies for Violations of Disability and Other Civil Rights Laws

* In Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992),
Roberts, as deputy Solicitor General, filed an amicus brief with the
Supreme Court arguing for a restrictive view of what remedies were
available under Title IX, and under civil rights statutes generally.
The Supreme Court rejected Roberts arguments and held that absent a
contrary indication from Congress, all appropriate remedies are
available. The Franklin decision has been extremely important in
ensuring that civil rights plaintiffs who prevail, including ADA and
Section 504 plaintiffs, are able to obtain appropriate relief.

Narrowing Federal Education Law Protections for Students with Disabilities

* In Board of Education v. Rowley, 458 U.S. 176 (1982), an eight year
old student who was deaf sought to have a sign language interpreter
provided to assist her in school. The trial court ruled that federal
law required the state to provide an interpreter for her. The appeals
court affirmed. Roberts, while at the Justice Department, wrote a memo
to the Attorney General criticizing these court decisions. Roberts
stated that the lower courts, in an exercise of judicial activism,
used the vague statutory language to overrule the board and substitute
their own judgment of appropriate educational policy. Even the
conservative Justice Department of that time disagreed with this view
and filed a brief supporting the student. The Supreme Court held that
the student was not entitled to an interpreter because she was
benefitting from her school instruction and federal law did not
require the state to maximize the potential of each student with a
disability.

Restricting Congresss Power to Pass Disability and Civil Rights Laws

* In Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003),
Roberts, sitting as a federal judge on the D.C. Circuit, dissented
from a denial of en banc (full court) review in a case concerning
Congresss authority to apply the Endangered Species Act to protect an
endangered species of toad. A panel of the court had held that this
application of the Act was a constitutional exercise of Congresss
commerce power. The full court denied review. Roberts dissented,
criticizing the panels view of the commerce power as too broad.
Roberts would have held that the specific application of the
Endangered Species Act to the arroyo toad, which lives only in
California, did not implicate interstate commerce, and thus Congress
had no power to regulate it.

The commerce power is one of the bases for Congresss passage of the
ADA, and Roberts interpretation would have dramatic implications for
the ability to enforce many important provisions of the ADA.
Fortunately, Roberts view of the Commerce Clause was subsequently
rejected by the Supreme Court in Gonzales v. Raich, 125 S. Ct. 2195
(2005), in which the Court made clear that Congresss commerce
authority cannot be defeated by carving out a specific set of
activities that are purely local, if these activities are part of a
larger scheme regulating activities that substantially affect
interstate commerce. Having Roberts on the Supreme Court could
dramatically affect how the Court views Congresss commerce authority
in the future.

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-- 
Jim Devine
"Segui il tuo corso, e lascia dir le genti." (Go your own way and let
people talk.) -- Karl, paraphrasing Dante.