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National Disabled Students Union Opposes Pryor Nomination
to 11th Circuit Court of Appeals
June 9, 2003Dear Senators Hatch and Leahy:
The National Disabled Students Union - a cross-disability organization representing disabled students at all levels of education across the United States - urges you to reject emphatically the Bush Administration's nomination of Alabama Attorney General William Pryor to the 11th U.S. Circuit Court of Appeals, since it would be inconsistent with the legacy of George H.W. Bush and devastating to the rights of over 54 million Americans with disabilities protected by the Americans with Disabilities Act.
According to CNN reporter Kelli Arena, President Bush stated in the wake of divisive remarks by Trent Lott that the, "... Republican Party cares deeply about each individual. and I will continue to promote policies that enable the American individual to achieve his or her dreams." The nomination of states' rights legal activist William Pryor, who has missed few opportunities to undermine the rights of persons with disabilities and has on occasion bragged about doing so, is clearly inconsistent with that commitment. Pryor's legal victory in University of Alabama v. Garrett - barring lawsuits for damages under Title I of the ADA - has already severely eroded the rights of 54 million persons with disabilities as well as many other individuals to obtain redress for legitimate grievances they have against discriminatory state entities. And through Pryor's continuing challenge of the constitutionality of Section 504 of the Rehabilitation Act in Garrett,[1] his support for an amicus brief in Medical Board of California v. Hason contending that Congress' legislative documentation of a record of discrimination by state entities covered by Title II of the ADA should be altogether ignored by the courts[2] and his characterization of a district court ruling in Westside Mothers v. Haveman, which would have rendered patients' rights under Medicaid unenforceable, as "brilliant" and "sublime", he has shown utter contempt for the basic human and civil rights of persons with disabilities. [3]
A brief examination of Pryor's approach to disability rights cases underscores why disabled litigants challenging discrimination by state entities would enter the court knowing that they would not get a fair and impartial hearing from him. In reference to Garrett, Pryor stated that he was "proud" of his role in "protecting the hard-earned dollars of Alabama taxpayers when Congress imposes illegal mandates on our state." [4]Furthermore, Pryor had the temerity to claim in reference to Garrett that
State governments, including Alabama, are leaders in protecting the legal rights of the disabled. In the 1960s and 1970s, Alabama passed several laws protecting the rights of the disabled in government employment and requiring accommodations in government buildings. When Congress passed the ADA in 1990, all 50 states already had laws on the books protecting the rights of the disabled. Congress passed the ADA as a "me-too" approach, not as a way of protecting persons who were being ignored or left behind.
Both of the Alabama employees who sued state agencies in the case before the Supreme Court refused to take advantage of administrative procedures available to them. Under Alabama law and policies, these employees were already protected from disabilities discrimination.
Although Alabama, for many years, had a tragic history of official discrimination against black persons, for decades the State has worked to protect disabled persons, before the Civil War, beginning with the establishment of the Alabama Institute for Deaf and Blind.[5]
As the Historians and Scholars Amicus Brief to the Garrett Case (available online) and the Brief of the National Association of Protection and Advocacy Systems and United Cerebral Palsy Associations, Inc., (available online) illustrate, Pryor's claims are patently false. These briefs constitute a documentary record of the extensive history of unconstitutional state discrimination against people with disabilities, including involuntary sterilization and institutionalization and denial of basic voting and civil rights. In fact, as the Brief of Alabama Amici -- representing 27 disability, civil rights, family and consumer organizations in Alabama - demonstrates, Alabama does not have enforceable disability discrimination laws and has a "quaint habit of ignoring its responsibilities as a sovereign until faced with a federal court order." This brief, which is available upon request from, refutes the state's "bald claim that it protects the rights of persons with disabilities on a scale that renders federal protections superfluous."
Even though Pryor disingenuously claimed that "This case is not a broadside attack on either the ADA or the disabled, as some assert," his triumph in Garrett has inflicted grievous suffering on persons with disabilities.[6] Pryor's contention has been refuted by his prior and subsequent arguments that both Title II of the ADA and Section 504 are unconstitutional in the Yeskey[7], Hason and Garrett cases. It is further discredited by his praise for decisions preventing individuals from holding state entities responsible for their failure to comply with the mandates of federal programs.
However, this is cold comfort to the victims of Pryor's jurisprudence: People like Patricia Garrett, a nurse who admirably persevered despite having breast cancer and continued to excel in her job performance, but was nevertheless forced out of her job by a boss who did not like having "sick people" around. The Supreme Court ruled that she cannot receive damages even though she suffered a major loss of income due to the supervisor's irrational bias. To date, she has not even been allowed to discuss of the merits of her complaint of discrimination on the basis of disability by Alabama, due to Pryor's insistence on again invoking state sovereign immunity - this time against the application of Section 504 to the states. Without the prospect of damages, fewer lawyers will represent persons with disabilities who are discriminated against in the work place or in state universities.
Due to Pryor's success, states have become emboldened to challenge the constitutionality of Title II of the ADA, which fundamentally guarantees our right to access state programs, government, universities and courts. Our rights are hanging in the balance, as the US Supreme Court is now deciding whether to hear a state challenge of Title II in Tennessee v. Lane, where Tennessee is brazenly claiming that it is not an unconstitutional violation of a man's due process rights to compel him to drag himself up or be carried up two flights of steps to respond to a summons in an inaccessible courthouse.[8] Other states are claiming that Ex Parte Young does not apply and that states cannot even be sued for injunctive relief. We fear the implications of this ominous trend.[9]
Pryor's campaign to expand states' rights at the expense of civil rights is based on a misguided 1890 decision in Hans v. Louisiana by most of the justices that later decided that segregation was constitutionally permissible - despite the 14th Amendment - in Plessy v. Ferguson. The 11th Amendment had been designed to protect states from lawsuits by non-citizens of the state and foreign countries, in response to Chisholm v. Georgia - a case in which an individual from another state sued the state of Georgia. The Hans court presumed to divine an original intent that the framers meant for no individual to sue their own state, when nothing could be further from the truth. That this court found segregation consistent with a post 14th Amendment constitution shows how wrongheaded they were and why their precedents should not be relied upon.
Since Pryor's states' rights jurisprudence relies on precedents from the court that endorsed segregation and encroaches so much on the civil rights of individuals from so many groups, it is inconsistent with the commitment to civil rights, impartial administration of justice and equal protection for all that the Republican Party has reaffirmed in the wake of the Trent Lott episode. To truly disassociate the GOP from opponents of civil rights requires not nominating those whose jurisprudence is inspired by opponents of civil rights. Pryor is foremost on this list of judges whose nomination should accordingly be rejected.
Moreover, Pryor does not even acknowledge the legitimacy of differing philosophies of jurisprudence, such as the judicial restraint and moderation of Justice David Souter, an appointee of George H.W. Bush. In fact, Pryor concluded one speech before the 2000 election with his "prayer for the next Administration: Please God, no more Souters."[10] This only reinforces our view that Pryor lacks the objectivity and judicial temperament essential to administering impartial justice under the law.
Therefore, the appointment of William Pryor would constitute a severe blow to the individual rights of persons with disabilities and other discriminated against groups, and would send a chilling message to the disability rights community and the National Disabled Students' Union. To be consistent with George H. W. Bush's distinguished legacy for widening the circle of inclusion and your honorable commitments to the disabled community, we respectfully urge you to make the right decision and firmly reject the Pryor nomination. Thank you for your consideration.
Sincerely,
The National Disabled Student Union Action Team
[1] Jennifer Mathis, "Bill Pryor's Record on Disability Issues," p. 2 citing Garrett v. University of Alabama at Birmingham Bd. Of Trustees, 223 F. Supp. 2nd 1244 (N.D. Ala. 2002). Pryor argued that states could not be required to waive their immunity under Section 504 in order to receive federal funding.
[2] Report of People For the American Way in Opposition to the Confirmation of William H. Pryor, Jr. to the Eleventh Circuit Court of Appeals, p. 10, citing Brief of the Commonwealth of Virginia, the States of Alabama, et al, as Amici Curiae in Bd. Of California v. Hason. No. 02-479, cert. Dismissed, 173 S. Ct 1779 (2003)
[3] Mathis, "Bill Pryor's Record on Disability Issues," pp. 3-4, citing William H. Pryor, Jr. The Demand for Clarity: Federalism, Statutory Construction and the 2000 Term, (Washington DC, July 11, 2001), The Federalism Project of the American Enterprise Institute.
[4] Report of People For the American Way in Opposition to the Confirmation of William H. Pryor, Jr., p. 6, citing Bill Pryor, Attorney General of Alabama "ADA Case is About Protecting Alabama Taxpayers," Birmingham News (Nov 12, 2000) is available online.
[5] Ibid.
[6] Ibid.
[7] Mathis, "Bill Pryor's Record on Disability Issues," p. 2, citing Pennsylvania Dep't of Corrections v. Yeskey. 524 U.S. 206 (1998). Pryor even challenged Congress' power under the Commerce Clause to apply the ADA to state prisons - an argument that even the conservative Supreme Court rejected.
[8] Inclusion Daily Express/ Ragged Edge Magazine, "Tennessee asks high court to hear ADA Title 2 case".
[9] Mathis, "Bill Pryor's Record on Disability Issues," p. 2
[10] Report of People For the American Way in Opposition to the Confirmation of William H. Pryor, Jr. , p. 8, citing "The Supreme Court as Guardian of Federalism," Bill Pryor, Attorney General of Alabama before the Federalist Society and Heritage Foundation (July 11, 2000) is available online.
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