December 21, 2005, Washington, DC - Today, the American Association of People with Disabilities (AAPD) expressed concerns about Supreme Court nominee Samuel A. Alito, Jr.’s rulings in the area of states’ rights, and the potential implications of his approach for federal laws protecting the rights of people with disabilities and their families.

“In the last decade, people with disabilities have been on the front lines in a battle over the balance of power between Congress and the states. In a series of sharply divided decisions, the U.S. Supreme Court has evaluated Congressional authority to protect individual rights under the U.S. Constitution. Based on this new line of states’ rights decisions, we are very concerned that our ability to use landmark federal legislation to challenge discrimination by state and local governments may be severely curtailed in areas ranging from voting to education to housing to transportation to participation in community life,” noted Andrew Imparato, president and chief executive officer of AAPD.

Justice O’Connor has been a pivotal figure on the Court in these cases. After she joined in a 5-4 decision in 2001 striking down parts of the Americans with Disabilities Act (ADA) protecting the rights of disabled State employees, she joined a new majority to write a decision in 2004 upholding the ADA’s requirements of equal access for parties to state judicial proceedings. This term, the Court has heard arguments in a challenge to Congress’s power to protect the rights of disabled inmates in State prisons.

Under the tests that have been developed in these and other “federalism” rulings, the Supreme Court has put itself in the position of evaluating the extent to which Congress has documented a history of unconstitutional discrimination by State actors against their own citizens with disabilities, and the extent to which the challenged legislation represents a proportional response to that history.

“We need Justice O’Connor’s replacement to have a better understanding of the history of disability discrimination, and greater respect for Congress’s ability to make definitive findings grounded in its capacity to hold hearings and interact directly with constituents, than Justice O’Connor has demonstrated in her rulings,” said Imparato.

“From our review of Judge Alito’s rulings in the area of states’ rights, we are not certain that he would represent an improvement over Justice O’Connor. Although it is difficult to discern his judicial philosophy from two significant cases during a 15-year tenure on the federal bench, two of his states’ rights rulings raise questions for us that we hope will be answered at his confirmation hearings,” said Imparato.

In 2000, Judge Alito wrote an opinion striking down Congress’s ability to make a State agency comply with the Family and Medical Leave Act’s (FMLA’s) guarantee of up to twelve weeks of unpaid leave for personal illness. A majority of the U.S. Supreme Court, including Justice O’Connor, later upheld the FMLA’s guarantee of unpaid leave to care for a sick family member, in a 2003 case presenting similar Constitutional issues.

In another case, Judge Alito dissented from a Third Circuit opinion finding that Congress had the authority to regulate and ban intrastate possession of machine guns under the Commerce Clause. Judge Alito argued that Congress needed to have made factual findings that the matter regulated had a link to interstate commerce. The Commerce Clause is the source of authority for numerous applications of federal civil rights laws, including the use of the ADA for injunctive remedies against the state, and the use of the ADA against private parties. Judge Alito’s proposed Congressional requirement, which goes beyond the holdings of the Rehnquist Court’s Commerce Clause rulings, could become another vehicle for second-guessing Congressional findings and striking down important civil rights laws if his views were to prevail on the Supreme Court.

“If one looks more broadly at Judge Alito’s 15-year history on the bench, there are certainly a number of rulings interpreting disability rights laws that are well-reasoned and reflect a good understanding of the nature of disability discrimination. We note a number of positive rulings interpreting two of the most important pieces of disability legislation, the ADA and the Individuals with Disabilities Education Act. We are also aware of some rulings in which Judge Alito joined that reflect a more narrow interpretation of the ADA and the Fair Housing Amendments Act than we believe should be accorded to these critical civil rights laws. His mixed record in cases involving parties with disabilities would not, considered alone, lead AAPD to oppose his nomination,” noted Imparato.

“However, we continue to have questions about Judge Alito’s general approach to states’ rights. Therefore, we will pay close attention to his answers to specific questions at his confirmation hearings concerning his views of Congress’s power to protect individuals with disabilities under the Constitution. Our decision regarding whether to oppose, remain neutral, or support his nomination will be influenced substantially by this aspect of Judge Alito’s testimony,” said Imparato.

“We have intentionally postponed making a decision regarding his nomination in order to give Judge Alito an opportunity to address the serious concerns we have. Therefore, we strongly encourage the members of the Senate Judiciary Committee to ask questions that will enable us to determine Judge Alito’s view of Congressional authority to protect individuals with disabilities, and we are hopeful that his answers to such questions will allay our fears,” Imparato concluded.

1. University of Alabama v. Garrett, 121 Sup. Ct. 955 (2001).
2. Tennessee v. Lane, 541 U.S. 509 (2004).
3. U.S. v. Georgia/Goodman v. Georgia, Docket Nos. 04-1203/04-1236 (argued 11/9/05).
4. Chittister v. Department of Community & Economic Development, 226 F.3rd 223 (3d Cir. 2000).
5. Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003).
6. U.S. v. Rybar, 103 F.3d 273, 286-294 (3d Cir. 1996) (Alito, J., dissenting).
7. See, e.g. Gonzales v. Reich, 125 S.Ct. 2195 (2005), accepting arguments rejected by Judge Alito in a Commerce Clause challenge to Congress’s authority to regulate possession and cultivation of marijuana within states.
8. See, e.g. Fiscus v. Wal-Mart Stores, 385 F.3d 378 (3d Cir. 2004) (holding that cleansing blood and eliminating bodily waste is a major life activity for purposes of coming within the ADA’s definition of disability, joined by Judge Alito); Mondzelewski v. Pathmark Stores, 162 F.3d 778 (3d Cir. 1998) (ruling that supermarket meat cutter with limited education, training, and skills created triable issue of fact on the question of whether he was substantially limited in working due to his back injury, written by Judge Alito); Shore Regional H.S. v. P.S., 381 F.3d 194 (3d Cir. 2004) (reinstating ALJ decision that public school district failed to provide a free appropriate public education to disabled student who had been subjected to severe and prolonged harassment, written by Judge Alito); Ridgewood Bd. Of Educ. v. N.E., 172 F.3d 238 3d Cir. 1999 (overturning lower court’s decision in favor of a school board, and holding that the IDEA imposes “more than a trivial educational standard,” and that compensatory damages under the IDEA not not require bad faith or egregious circumstances, joined by Judge Alito; Beth V. v. Carroll, 87 F. 3d 80 (1996) (holding that express right of action exists under IDEA to challenge a state education department’s failure to promptly investigate and resolve complaints, joined by Judge Alito).
9. See, e.g. Katekovich v. Team Rent A Car of Pittsburgh, 36 Fed. Appx. 688 (3d Cir. 2002, unpublished) (affirming the dismissal of an employee’s ADA and FMLA claims after the employee’s three-week hospitalization for depression and a sleep disorder, in part on the grounds that she did not meet the ADA’s definition of disability, joined by Judge Alito); ADAPT v. U.S. Dep’t of Housing and Urban Dev’t, 170 F.3d 442 (3d Cir. 2002) (holding that HUD’s failure to enforce the Fair Housing Amendments Act and related regulations is not subject to judicial review, joined by Judge Alito).

The American Association of People with Disabilities (AAPD), the country's largest cross-disability membership organization, promotes the economic and political empowerment of all 56 million children and adults with disabilities in the U.S. It was founded in 1995 to help unite the diverse community of people with disabilities, including their family, friends and supporters, and to be a national voice for change in implementing the goals of the Americans with Disabilities Act (ADA). AAPD members have access to a full range of financial services through a federal credit union, discounts on goods and services, and a quarterly AAPD newsletter. For additional member benefits, or to learn more about AAPD's advocacy efforts and major program areas, visit the AAPD website at www.aapd.com.