ADA decision sets a disturbing trend

On its surface, the U.S. Supreme Court’s ruling freeing state governments from the provisions of the landmark federal law protecting disabled Americans should have little effect in Hawai‘i.

But the philosophy behind the 5-4 ruling could produce rulings farther down the road that would jeopardize the well-being of many of our most vulnerable citizens.

The case is supposed to be about protection of states’ rights, not patients’ rights. Yet it involves a nursing supervisor in Alabama who was demoted after taking time off for breast cancer, even though she was cured. She sued her employer, a state agency; that agency’s defense was "sovereign immunity," the constitutional doctrine shielding states from federal law.

The high court majority, led by Chief Justice William Rehnquist, sided with the state, in effect leaving the nation’s nearly 5 million state employees without the full protection of the Americans With Disabilities Act of 1990.

Hawai‘i filed a friend-of-the-court brief in support of Alabama’s decision. We’re told that position came out of concern for protecting the doctrine of sovereign immunity.

As a practical matter, Hawai‘i state employees, heavily unionized as they are, presumably are as well protected under state law as federal law. If that’s not the case, it can quickly be addressed in the Hawai‘i Legislature.

Employees in other states, of course, may not be so well off.

For Hawai‘i, however, we worry more about other areas in which Hawai‘i law or practice has failed to offer effective coverage. Examples are the Felix case — federal court intervention that was required because Hawai‘i for years couldn’t bring itself to comply with federal laws mandating mental health services for its public-school children; or our treatment of prison inmates and of state mental hospital patients, which similarly brought federal intervention.

If the court extends sovereign immunity to such areas, we worry that, based on its past performance, Hawai‘i government might choose to let such people fall through the cracks. The Americans With Disabilities Act, like other such legislation, came about because of concern that states were refusing to or unable to do right by their disabled population. It’s for this reason that we keep a weather eye on the Rehnquist Court and the sovereign immunity doctrine.

[back to top]