Court Mulls Reach of Federal ADA

      WASHINGTON (AP) - Hearing the case of a nurse with breast cancer and a security guard with severe asthma, the Supreme Court was asked Wednesday to rule that people cannot sue a state for damages under a 10-year-old federal disability-bias law.

      All 50 states have their own such laws and therefore should not be subject to money-damage claims under the Americans with Disabilities Act, attorney Jeffrey Sutton told the justices. He represents Alabama, which is trying to fend off lawsuits by the two state employees.

      ``This (ADA) was not needed; it''s not proportional to the very problem they were trying to change,'' Sutton said.

      But the lawyer for Alabama employees Patricia Garrett and Milton Ash said Congress had extensive evidence that disabled people were denied equal protection in violation of the Constitution.

      When Congress enacted the ADA in 1990, it found that ``there is pervasive prejudice against persons with disabilities, a history of purposeful unequal treatment,'' Michael Gottesman said.

      He said one woman, crippled by arthritis, was denied a university teaching job ``because they don''t want the students to have to look at her.''

      Justice Antonin Scalia seemed skeptical, saying that was ``one instance.''

      ``There are dozens, hundreds of these, your honor,'' Gottesman replied.

      Justice Stephen G. Breyer told Sutton that court papers filed in the case showed numerous examples of unequal treatment of the disabled.

      ``Why isn''t it a constitutional violation where Congress has lots and lots of instances of states that seem to discriminate against handicapped people?'' Breyer asked.

      Sutton said that to justify enacting a federal law, Congress must show the states were not enforcing their own laws.

      Solicitor General Seth Waxman, arguing in support of the ADA, said Congress acted because of the ``not-too-distant past in which government practices deliberately isolated, segregated the disabled from fundamental rights.''

      Waxman said the law could hold up even though it was enacted before the Supreme Court''s recent rulings that have tipped the balance of power toward the states.

      Justice Anthony M. Kennedy cautioned, ``When Congress alters the federal balance, it must consider carefully the consequences of doing so.''

      The Supreme Court''s decision, expected by next summer, could sweep broadly enough to affect all ADA lawsuits that accuse states of bias against the disabled in a variety of services, including employment, education, transportation and health care.

      Former President Bush, who signed the ADA into law, was among many people and groups offering advice to the justices. In a brief supporting Garrett and Ash, Bush said many disabled people formerly lived ``in an intolerable state of isolation and dependence,'' but the ADA let them ``pass through once-closed doors into a bright new era of equality, independence and freedom.''

      Garrett was the head maternity nurse at the University of Alabama at Birmingham when she took four months'' unpaid leave in 1995 to undergo chemotherapy for breast cancer. When she returned, she was ordered to take a lower-paying job or quit.

      ``I was shocked,'' she said in an interview Tuesday. ``We were a medical institution, for heaven''s sake.'' She took the lower-paying job and later retired.

      Ash, a security guard for the Alabama Department of Youth Services, says his severe asthma has been aggravated by the agency''s refusal to enforce its no-smoking policy or repair exhaust problems on a vehicle he had to drive.

      ``They have a no-smoking policy, and all I''ve asked for is to enforce the no-smoking policy,'' Ash said Tuesday.

      A federal judge dismissed their lawsuits against the state, but the 11th U.S. Circuit Court of Appeals reinstated them. Congress had authority to cancel the states'' 11th Amendment immunity from lawsuits that invoke the ADA, the appeals court said.

      The state appealed to the Supreme Court, which in recent years has issued a number of rulings that have tipped the federal-state balance of power toward the states.

      Last January, the justices barred state workers from suing their employers in federal court over age bias. The court said the Age Discrimination in Employment Act did not trump states'' immunity from being sued in federal courts.

      Lawyers for Garrett and Ash are seeking to convince the justices their case provides stronger evidence that discrimination against the disabled was a serious problem, and that the ADA created a reasonable remedy.

      The case is University of Alabama v. Garrett, 99-1240.

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