- The Washington Times - Wednesday, October 11, 2000

Immunity of states from meddling by the federal judiciary is a fundamental part of our federal system designed to preserve local self-government. The Supreme Court noted in 1921 "That a State may not be sued without its consent is a fundamental rule of jurisprudence having so important a bearing upon the construction of the Constitution of the United States that it has become established by repeated decisions of this court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given."

Today in Garrett vs. Alabama, the Supreme Court will hear oral arguments on whether or not federal courts can ignore this "fundamental rule" and force states to spend billions of dollars trying to make "all public accommodations" accessible to the handicapped.

The Americans with Disabilities Act (ADA) is a costly and flawed attempt by Washington to impose its usual one-size-fits-all, Washington-knows-best "solution" upon local communities. Rather than allowing local governments the flexibility to determine how to deal with the problem of handicapped accessibility, the ADA gives power to unelected federal bureaucrats and judges to impose requirements on local communities with little or no consideration of the costs or benefits.

First of all, federal involvement is based upon the preposterous premise that inaccessibility say, lack of a wheelchair ramp, or Braille script is "discrimination" exactly equivalent to racial discrimination. The U.S. Capital once had colored rest rooms and white rest rooms. Today the capital has wheelchair accessible rest rooms and non-accessible ones. Does anyone really think that the two situations are morally or legally equivalent?

Proponents of ADA speak about "mainstreaming" the handicapped by, for example, not having a special school for them, but "integrating" them into ordinary classrooms. That may sound good in the abstract, but consider what happens when instead of putting 20 deaf students in a single classroom with a single sign language teacher, a school district is expected to "integrate" them into regular classrooms and pay 20 sign language "interpreters."

In the real world, local governments must decide how to allocate scarce resources, and forcing them to adopt absurdly inefficient systems in the name of some abstract principle of "integration" simply defies common sense.

Unfortunately, the ADA and the threat of lawsuits under it often exclude common sense. One of my favorite stories is how the little town of Greenbelt, Md., was forced to remove a portable toilet from the city park, because when the ground was muddy it was not wheelchair accessible. Because a few days a year a "public accommodation" was not handicapped accessible, everyone was forced to suffer.

The ADA allows exceptions in cases of "undue hardship" such as when the cost of modification is prohibitive. But "undue hardship" is a completely subjective standard, which means that a local government risks a lawsuit anytime it determines there is an undue hardship.

If the Supreme Court rules that local governments can be sued under the ADA, local governments will often have to choose between spending thousand of dollars on needless modifications, or spending thousands of dollars defending themselves from a suit in federal court.

The suit being argued today is not about handicapped accessibility; it is really about the independence of state and local governments to make decisions without a federal judge second-guessing their every move.

The framers prohibited private parties from suing states in federal court because they feared a federal judiciary usurping the role of local elected officials. As the Supreme Court explained last year in Alden vs. Maine (in which the Supreme Court said individuals could not sue a state under the Fair Labor Standards Act), "If the principle of representative government is to be preserved to the States, the balance between competing interests must be reached after deliberation by the political process established by the citizens of the State, not by judicial decree mandated by the Federal Government and invoked by the private citizen."

In other words, spending priorities as to how precious tax dollars are spent should be made by elected officials. The ADA would allow federal judges by "judicial decree" to override the political process and "mandate" that local communities shift money from whatever their particular needs might be to chase after an abstract ideal of "mainstreaming."

The issue is self-government. It has long been the job of local governments to take care of the sick and disabled. Local governments will continue to strive to provide for the disabled, but the question before the Supreme Court today is whether the decisions about how to do this will be determined by federal judges, or by elected legislatures, city councils and school boards.

"Fundamental rules of jurisprudence" should not be tossed aside lightly. It is easy to sympathize with the disabled, but we cannot get so caught up in emotion that we do damage to the basic fabric of federalism.

Paul Clark is director of the Coalition for Local Sovereignty which has filed an amicus brief in the case of Garrett vs. Alabama.

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