On Target

 Informing Indiana About Disability Issues

On Target is a monthly publication of the Indiana Governor's Council for People with Disabilities.

We welcome your suggestions for newsletter content and ideas concerning the actions of the Council. On Target is made available in accessible formats upon request.

Suellen Jackson-Boner
Executive Director

Christine Dahlberg
Associate Director

Paul Shankland
Grants Manager

ADA receives blow from Supreme Court

People with disabilities expected a decision from the countrys highest court in early 2001 on Board of Trustees of the University of Alabama v. Garrett, and it delivered on Feb. 21. In a 5-4 decision, the Supreme Court ruled that under Title I of the Americans with Disabilities Act (ADA), state employees cannot sue a state for monetary damages for employment discrimination based on disability. Although this has been called a narrow decision by some, others feel that it opens the floodgates for future cases that could whittle away the effectiveness of the 1990 law signed by former President George Bush.

The ADA was passed in part because of the history of egregious discrimination and exclusion of people with disabilities by the states, said Andrew Imparato, president and CEO of the American Association of People with Disabilities. The immediate impact of todays decision is limited in scope, but the Courts callous indifference to the impressive evidence of discrimination that Congress compiled as it considered the ADA is very disturbing.

Karen Staley, president of The Arc of the United States, was more optimistic in a press release from that organization. It is important for the public to understand that the ADA is not dead. Employees with disabilities who are discriminated against may still sue those states. However, they cannot sue for monetary damages. The federal government can also continue to sue states on behalf of individuals in employment discrimination cases.

How will this affect Indiana?
According to Bruce Jefferson, deputy director of the Indiana Civil Rights Commission, Indiana has a law similar to the federal law; however, Indianas law allows employees to file suit against the state for lost wages and benefits. Hoosiers cannot earn attorney fees or punitive damages under the current statute.

We want Hoosiers to know that they should still come to the Indiana Civil Rights Commission when theyve been wronged, said Jefferson. Were still here and ready to act on charges filed. He explained that other states have seen cases like University of Alabama v. Garrett, and that the Civil Rights Commission planned for this type of situation when writing the Indiana statutes. A decision like this appeared to be coming for a while now, and were not terribly surprised by this.

For more information about the Supreme Court decision, the Bazelon Center for Mental Health Laws Web site, www.bazelon.org, has extensive resources available. To contact the Indiana Civil Rights Commission, call (317) 232-2600 (voice), (800) 628-2909 (voice), or visit www.state.in.us/icrc.

In a related move by the Supreme Court...

However, only two days after the Garrett decision, the Supreme Court decided not to hear this case, a victory for the ADA and the disability community. The Supreme Court did not comment on its decision. The AP article explains that the Garrett case related to employment discrimination and was limited to state employees. However, this latest case would have opened up the issue of state or local governments discriminating against people with disabilities by not making services and buildings accessible.

As the AP article states, That part of the 1990 anti-discrimination law is not limited to state employees, and is a major reason public buildings have had to make such physical changes as wheelchair ramps and Braille elevator buttons.

Judgment in United States v. Snyder would have made states immune from lawsuits alleging discrimination against the disabled in access to public services, programs and buildings, according to a Feb. 26 Associated Press (AP) article.

However, only two days after the Garrett decision, the Supreme Court decided not to hear this case, a victory for the ADA and the disability community. The Supreme Court did not comment on its decision. The AP article explains that the Garrett case related to employment discrimination and was limited to state employees. However, this latest case would have opened up the issue of state or local governments discriminating against people with disabilities by not making services and buildings accessible.

As the AP article states, That part of the 1990 anti-discrimination law is not limited to state employees, and is a major reason public buildings have had to make such physical changes as wheelchair ramps and Braille elevator buttons.

In legislative news

Unlike HB 1950, many bills have died at the halfway point of Indianas 2001 General Assembly. Others, like HB 1950, have passed their house of origin. These bills will be considered for passage in the other chamber.

Action alerts and updates on many important bills can be found at www.arcind.org. A list of bills that have successfully passed the first step of the approval process is available by calling the Council at (317) 232-7770 (voice).

States must still comply with ADA

The Supreme Courts decision in Board of Trustees of the University of Alabama v. Garrett, No. 99-1240 (Feb. 21, 2001), did one thing: It held that lawsuits under Title I of the Americans with Disabilities Act for damages against states are unconstitutional. With this one exception, the ADA is very much alive, even against states and other public entities.

For example:

1. Title II of the ADA was not affected by this decision, and individuals can still sue for injunctive relief and damages under that part of the statute;
2. Even under the rationale of the Garrett decision, individuals can still sue for injunctive relief that is, an order requiring a state to comply with the ADA; and
3. Individuals can still sue local governments and other non-state public entities both for injunctive relief and for damages.

What this means is that the result of the Garrett decision only impacts state employment practices. All other facets of state government activity are unaffected by this opinion. It is true that some courts may hold that the logic of todays decision applies to Title II as well, although there are very good reasons why the Supreme Court might analyze Title II differently and come to the conclusion that damages suits are available under that title. But even if Title II is treated as Title I was in Garrett that is, if damages suits are held to be unconstitutional suits for injunctive relief against states and all lawsuits against local governments are still very much alive.

An individual can still sue a state for an injunction requiring compliance with the ADA The Supreme Court through footnote 9 of the Garrett decision made clear that Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by private individuals in actions for injunctive relief.

If the logic of Garrett is extended to Title II, naturally this exception will also apply. What this means is that states will still have to comply with the ADA; people with disabilities can sue states for failing to comply with the ADA; and courts can order states to comply with the ADA. The upshot of Garrett is simply that the plaintiffs cant recover damages. This is so important it bears repeating: States are still required to comply with the ADA.

In particular, states are required to comply with the Supreme Courts decision in Olmstead v. L.C., 527 U.S. 581 (1999), which requires states to provide services in the most integrated setting. It also means that states must still provide reasonable accommodations in the employment context, that they must still build new buildings to be readily accessible to and usable by people with disabilities, that they must provide full program access at state colleges and universities and that they must otherwise fully comply with the ADA and its implementing regulations. Individuals can sue for injunctive relief and damages against local governments and other non-state public entities: The Garrett decision also made clear that immunity from damages suits does not extendto units of local government.

What this means is that lawsuits for both injunctions and damages are still available against local governments and public entities that are not the state. This would include, for example, regional transportation districts, county governments, quasi-governmental corporations, and the like.

Hoosiers celebrate Awareness Month in March

Posters, bookmarks, buttons and other materials challenge Hoosiers to focus on friendships, regardless of disabilities or abilities. Awareness Month 2001 will be celebrated with community-based activities centrally coordinated by the Council. More than 800 orders for educational materials have already been placed. With corporate sponsorships from Ameritech and Photo-Me Booths, advocates can enjoy free materials with the exception of T-shirts and coffee mugs.

The Council invites you to join in the celebration. Free materials are still available by calling Kim Dennison at Borshoff Johnson Matthews at (317) 631-6400 (voice).

Olmstead planning continues, your input is needed

Progress is being made toward fulfilling Governor Frank OBannons Executive Order mandating that the Indiana Family Social Services Administration (FSSA) report short- and long-term recommendations to improve community services and to accomplish the goal of integration.

FSSA will provide written findings to Gov. OBannon by June 1, 2001, for improvements to the states long-term care service system. Improvements will aid in the total community inclusion of people with disabilities.

Please plan to attend one of 10 public meetings. Your views and opinions are needed to help ensure that Indianas community integration plan truly reflects the concerns of people with disabilities and their families.

Meetings will be held in the following cities:

• Richmond (April 16, 911 a.m.)
• Lafayette (April 17, 911 a.m.)
• Indianapolis (April 17, 46 p.m.)
• New Albany (April 18, 911 a.m.)
• Seymour (April 18, 24 p.m.)
• Evansville (April 20, 911 a.m.)
• Vincennes (April 20, 24 p.m.)
• Fort Wayne (April 23, 911 a.m.)
• Warsaw (April 23, 24 p.m.)
• South Bend (April 24, 911 a.m.)
• East Chicago/Merrillville (April 26 or 27, TBD)

A draft of the plan will be available by mid-March. For more information on the public meetings or to obtain a copy of the plan, contact FSSA at (317) 233-4454 (voice) or visit the Web at www.state.in.us/ fssa/servicedisabl/olmstead/index.html.

Five communities tackle issues on transportation

Made available through a grant to the Southern Indiana Center for Independent Living, CTI will help in the expansion of accessible transportation opportunities across Indiana.

From CTI, the Transportation Academy has been established to provide training and technical assistance to teams from various Indiana areas/counties, including the Southeastern Regional Planning Commission, Clinton County, Jackson County, Clark/ Floyd Counties and Lake County. Members of the Academy will research transportation issues within their own communities, develop a transportation plan, and implement the plan to make their communities transportation accessible. As a participant, members will learn what is possible for each community, the rules and regulations, and the possible resources, while building necessary relationships with government, business, industry and education leaders.

If you are a member of a participating community and would like to submit your opinion, contact Debra Simmons-Wilson or Al Tolbert toll-free at (888) 259-8773 (voice) or debsimwilson@aol.com (e-mail).

Of Note

Guides available
AAAs The Disabled Drivers Mobility Guide provides information about adaptive equipment, driver training and related services. The guide is updated every three years and is available for $7.95 from AAA Traffic Safety by calling (407) 444-7903. This fall, AAA will publish a series of regional travel guides for people with disabilities. On Target will provide more information when it becomes available.

Save the date - November 27-28
The 2001 Indiana Conference for People with Disabilities is scheduled for Tuesday and Wednesday, November 27-28, at Indianapolis Downtown Westin. Please mark your calendars for this worthwhile forum of new ideas and advocacy programs for people with disabilities. You should be in pictures

The Council is looking for photos and video footage from March Awareness Month 2001. If you participated in an event in your community, please send us a copy of a photo or video so we can share your events with other advocates around the state.

Mail your samples to: Jamy Schuler, Borshoff Johnson Matthews, 47 S. Pennsylvania St., Ste. 500, Indianapolis, IN 46204. Please note on the package if you would like the samples returned.