Take Action to Protect the ADA by Telling Your Senators to Vote No on Pryor and Boyle
June, 2005
Please sign on by close of business Wednesday. We want to make certain that we get every possible group on board.
Daniel Davis Policy Analyst National Council on Independent Living (NCIL) Phone: 703-525-3406, ext 26 National Council on Independent Living
ACTION ALERT NCIL: Take Action to Protect the ADA by Telling Your Senators to Vote No on Pryor and Boyle
TIME SENSITIVE: ACT ASAP June 3, 2005
We have ONE WEEK to act to protect the rights of persons with disabilities in two federal circuit courts of appeals from efforts to give lifetime judicial appointments to two outspoken opponents of disability rights: Alabama Attorney General William (Bill) Pryor to the 11th Circuit Court of Appeals and Judge Terrence Boyle to the 4th Circuit Court of Appeals. Make no mistake, these two nominees pose serious threats to the civil rights of persons with disabilities! We need to make every reasonable effort to convince reasonable Senators to reject these nominations.
Last week, the compromise deal negotiated by 14 Senators 7 Democrats and 7 Republicans made our task much more difficult. Pryor was guaranteed an up-or-down vote by the full Senate. The final vote on Pryor's confirmation is scheduled for the afternoon of Thursday, June 9th. We also need to be prepared to defeat Boyle on an up-or-down vote as soon as the week of June 13. The task is not easy, but we cant afford to be silent! To defeat Pryor or Boyle on an up-or-down vote, we must persuade at least six Republicans to vote NAY and make certain that moderate Democrats firmly oppose these nominations. At its core, our message is that votes for Pryor or Boyle will be seen as votes against the rights of people with disabilities and the Americans with Disabilities Act.
Background information on both Pryor and Boyle is attached to this alert.
Take Action: Cosign on to the list of organizations opposing Pryor and Boyle: It is vital that we demonstrate as much disability community opposition to these nominees as possible. Please find attached a list of groups already opposed to these nominees. We would strongly encourage your organization to sign on to a list of organizations opposed to these nominees. Outreach to other disability advocacy organizations in a cross-disability manner is strongly encouraged.
E-mail all sign-on's to NCIL's intern by Close of Business (COB) Monday June 6, 2005. We hope that the opposition list will represent the diversity of our community, including the IL, blind, deaf, developmental disability, epilepsy, diabetes and psychiatric survivor communities.
Call, e-mail or FAX letters voicing your opposition to the Pryor and Boyle nominations to your Senators. This is especially true if Gordon Smith (R-OR), Chuck Hagel (R-NE) or one or more of the 14 Senators who agreed to the judicial nominations compromise represents your state.
Arrange meetings with your Senators offices to discuss your opposition to these nominations. Do this only for any of the sixteen Senators listed below that represent you.
Key Senators to Contact: REPUBLICANS: John McCain (AZ), John Warner (VA), Mike DeWine (OH), Olympia Snowe (ME), Susan Collins (ME), Lincoln Chafee (RI) and Lindsay Graham (SC). Also, Gordon Smith (OR) and Chuck Hagel (NE).
DEMOCRATS: Robert Byrd (WV), Joseph Lieberman (CT), Ben Nelson (NE), Ken Salazar (CO), Daniel Inouye (HI), Mark Pryor (AR) and Mary Landrieu (LA).
Pryor's Record on Disability Rights
Former Alabama Attorney General William Pryor's belief in states rights and his willingness to speak out against the ADA and other civil rights legislation through repeated appeals, amicus briefs and public statements has made him a lightening rod of controversy.
Pryor attacked the ADA in Garrett vs. University of Alabama, even saying that he was proud of protecting the hard-earned dollars of Alabama taxpayers when Congress imposes illegal mandates on our state, implying that the civil rights of people with disabilities are illegal mandates.
Due to Pryor's success, states are challenging the constitutionality of Title II of the ADA, which fundamentally guarantees our right to access state programs, governments, universities and courts. Other states are claiming that the Ex Parte Young precedent does not apply and that states cannot even be sued for injunctive relief.
In a continuation of the Garrett case, Pryor cited states rights to challenge the constitutionality of applying Section 504 of the Rehabilitation Act to state governments. Fortunately, a three-judge panel of the 11th Circuit Court of Appeals rejected his argument.
Pryor insisted, in the continuation of Garrett, that individuals cannot file lawsuits to enforce Section 504. The Eleventh Circuit found this argument, which sought to eliminate one of the most vital safeguards of the civil rights of persons with disabilities, to be without merit.
Pryor hired Jeffrey Sutton to argue in an amicus brief in Pennsylvania Department of Corrections v. Yeskey that Congress has no power under the 14th Amendment to apply Title II of the ADA to the states and further challenged Congress power under the Commerce Clause to apply Title II to state prisons arguments that were rejected by the Supreme Court.
Pryor signed on to an amicus brief in Medical Board of California v. Hason, claiming that Congress legislative documentation of a record of unconstitutional discrimination by state entities covered by Title II of the ADA should be altogether ignored by federal courts.
Even after having been nominated to the 11th Circuit, Pryor submitted a states rights amicus brief in the courthouse access case, Tennessee v. Lane, the reasoning of which was rejected by the US Supreme Court.
Pryor's brief in Lane contended that the US Constitutions guarantees of equal protection and due process do not require that persons with disabilities be granted unassisted access to courthouses. Furthermore, Pryor asserted that individuals with disabilities have no absolute right to be present in the courtroom even if their freedom or finances are at stake.
The intensity of his hostility to disability rights is demonstrated by the fact that Pryor took the extraordinary step of requesting time in oral arguments in the Lane case even though Alabama was not a party to the lawsuit.
Furthermore, Pryor disputes clear instances of irrational discrimination on the basis of disability perpetrated by the states that are present in the legislative history compiled by Congress in the process of passing the ADA. Criticizing a notation that the University of Georgia located its office of handicapped services in inaccessible second floor office, Pryor insists that such anecdotes provide no indication of the extent of the inaccessibility, or whether the inaccessibility lacked a rational basis and was therefore unconstitutional. Contrary to Pryor's claims, it is evident that the wording of this description clearly details the extent of the inaccessibility and there is not a plausible, rational justification for a state university to situate an office serving disabled students in an inaccessible second-floor location.
Although Pryor's Lane brief claims that states are under so much economic pressure that they should not be subjected to enforcement actions to compel Title II compliance, it disingenuously claims that the Justice Department can be counted upon to enforce Title II of the ADA, while totally ignoring the budgetary constraints on DOJ. At its current funding level, DOJ can only address a small percentage of disability discrimination cases. Furthermore, even if the need for disability rights enforcement increases, DOJ's Civil Rights Division is not likely to obtain a significant increase any time soon in light of the current federal economic situation and commitments.
Despite the record of sterilization, segregation, denial of education and other egregious state conduct against the disabled, Pryor claims that the legislative history Congress compiled in the process of passing the ADA does not show one instance in which states have unconstitutionally discriminated against the disabled. On the contrary, he claims states have been at the forefront of providing reasonable accommodations to the disabled. On this basis, he denounces the ADA as me-too legislation that is altogether unnecessary.
Pryor also described a district court ruling in Westside Mothers v. Haveman that would have made patients rights under Medicaid unenforceable, as brilliant, and sublime. On appeal, the Sixth Circuit overruled the district court ruling.
Pryor remained silent when Alabama advocates appealed to him for support in passing an enforceable Alabaman's with Disabilities Act. Despite the absence of an enforceable private right of action for disability discrimination under Alabama state law, he did not even bother to respond.
Given the contempt for the ADA and federal civil rights legislation that Pryor has demonstrated through his actions as well as his words, it is impossible to believe that he could administer fair and impartial justice in cases where persons with disabilities have experienced discrimination by state entities, as is the responsibility of a federal judge. For more reasons why disability rights groups are opposing Pryor see the Bazelon Center for Mental Health Law Report on William Pryor, which is available online at: Bazelon Take Action Alerts
Terrence Boyle Should Not Be Confirmed
Terrence Boyle, nominated by President Bush to sit on the Fourth Circuit Court of Appeals, has an abysmal record on disability rights issues. He is strongly opposed by a wide array of organizations representing people with disabilities across the country and in the jurisdiction of the Fourth Circuit. The Fourth Circuit is comprised of North Carolina, South Carolina, Virginia, West Virginia and Maryland.
As a judge on the Eastern District of North Carolina, Boyle has repeatedly acted to dismantle the needed protections of the Americans with Disabilities Act (ADA), a law that was passed with broad bipartisan support and continues to have the support of the current Administration. Boyle's rulings also undermine the goals of President Bush's New Freedom Initiative, designed to promote the full participation of people with disabilities in society.
Boyle has repeatedly ruled that Congress overstepped its authority in enacting portions of the ADA. Judge Boyle ruled that Congress had no authority under the Fourteenth Amendment to make the ADA's public services provisions applicable to the states. Brown v. North Carolina Division of Motor Vehicles, 987 F. Supp. 451, 457-59 (E.D.N.C. 1997), Pierce v. King, 918 F. Supp. 932, 940 (E.D.N.C. 1996). Contrary to Boyle's decisions, the U.S. Supreme Court later ruled that Congress did have the power to make at least some of the ADA's public services provisions applicable to the states. Tennessee v. Lane, 124 S.Ct. 1978 (2004). Despite Lanes clear rejection of the reasoning in Boyle's previous opinions, Boyle has continued to insist that his previous decisions on this issue are still good law. Boyle also ruled that Congress had no authority to use its Commerce power to make the ADA applicable to state prisons. Pierce v. King, 918 F. Supp. at 940. Boyle's extraordinarily narrow readings of Congress powers make it likely that he would eventually invalidate most of the important provisions of the ADA.
Boyle has also interpreted the ADA as providing very limited protections, taking positions so extreme that even judges on the conservative Fourth Circuit criticized his reading as too narrow. Boyle was chastised by the Fourth Circuit for (1) ignoring Congress clear directive to consider an employers ability to accommodate a worker with a disability by reassigning him to a vacant position for which he is qualified, and (2) insisting that the reasonableness of an accommodation requested by a worker with a disability must be determined exclusively from the employers perspective. Williams v. Avnet, Inc., 910 F. Supp. 1124, 1133-35 (E.D.N.C. 1995).
Boyle ruled that a person raising an ADA claim must relinquish any shred of privacy and turn over records of the entirety of her medical history, without limitation. Butler v. Burroughs Welcome, Inc., 920 F. Supp. 90 (E.D.N.C. 1996). This approach is at odds with most courts efforts to balance litigation and privacy interests by permitting access only to those medical records that are relevant to the issues raised in the litigation. It serves as a significant deterrent to individuals efforts to enforce their legal rights.
Senators on both sides of the aisle concerned about disability and health care issues should have grave concerns about this nominee and should vote no on confirmation.
Member Benefits | About AAPD | Join | Disability Resources | News | Contact Us | Calendar | Home