July 26, 2010 marks the Americans with Disabilities Act’s (the “ADA’s”) 20th anniversary. Intended to protect people with disabilities from discrimination, this legislation has made an enormous difference in the lives of millions of Americans. As with most other laws designed to protect against discrimination, enforcement of the ADA is an ongoing battle. Though we hope that once a law is passed, everyone will follow the law and change their way of doing things, this does not always happen. It takes a lot of hard work, and sometimes court action, to enforce these hard won laws. The United States Supreme Court will serve as the battlefield for an upcoming skirmish in this continuing fight, and the outcome can have a huge effect on the ability of government agencies established to protect people with disabilities to do their job.
The Supreme Court recently agreed to hear the case Virginia Office for Protection and Advocacy v. Reinhard (“VOPA v. Reinhard”). This lawsuit concerns whether a state agency responsible for advocating on behalf of people with disabilities may sue another state entity to obtain for information about possible abuse and neglect of people with disabilities.
The protection and advocacy (“P&A”) system came into existence in the 1970s after Geraldo Rivera brought cameras into Willowbrook State School in New York, where adults and children with developmental disabilities were isolated, segregated, and subjected to horrifyingly inhumane conditions in overcrowded, understaffed facilities. It also turned out that people with disabilities were segregated and deprived of basic rights in institutions across the country. As a result, Congress decided to allocate money to the states to designate an agency that would ensure that the rights of people with disabilities would never again be violated in this way. States may choose whether to establish these P&A agencies as either an independent state agency, or a private not-for-profit. Whichever they choose, P&As are critical to ensuring the enforcement of the ADA. In Virginia, the governor designated the Virginia P&A (VOPA) to advocate on behalf of people with disabilities, a state agency.
In 2006, three residents in state-run facilities died or were injured while in the custody of the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services (the “Department of Mental Health,” now called the Department of Behavioral Health and Developmental Services). The VOPA opened an investigation into these deaths and tried to gain access to records about injuries and deaths at state institutions. When the Department of Mental Health refused to provide the records needed to complete the investigation, the VOPA sued the head of the Department of Mental Health to obtain the records. A federal appeals court dismissed the lawsuit, saying that the P&A agency couldn’t enforce the right to get access to information based on the theory that the Department of Mental Health couldn’t be sued by another state agency. Another Court of Appeals, in another part of the country, came to the exact opposite conclusion, deciding that state agencies may sue other state agencies in federal court. This second court recognized the important function the P&A system serves in protecting people with disabilities and the need to prevent state hospitals and institutions from shielding themselves from investigation and oversight.
The split in opinion between the two courts of appeals regarding whether state agencies may sue other state agencies to gain access to information is an important issue for the Supreme Court to resolve. The outcome of this case will seriously impact whether state agencies designated to protect the rights of people with disabilities can actually accomplish their mandate. In this case, without access to the requested information, the Virginia P&A agency found itself unable to complete its investigation and determine how the deaths and injuries in question had occurred. As a practical matter, if a state can protect itself from scrutiny by an agency created to ensure that certain rights and protections are provided by simply classifying the P&A as a state entity, then this will effectively block the P&A’s ability to oversee and enforce rights and protections. Access to information is a crucial part of any investigation and without access to records at state-run facilities the P&A systems will have a much harder, if not impossible, time doing their jobs. Consider this: In New York, the home state of Willowbrook, the P&A that conducts investigations into abuse and neglect is a public agency and a ruling against the VOPA’s right to go to court could seriously undermine its effectiveness. Wouldn’t that be an ironic and sad conclusion to the story that began with Willowbrook?
In the past year, NCRCR has focused on a few cases related to the disparate impact of felony disenfranchisement on African American men, as well as other people of color. We’ve also highlighted Ashcroft v. Iqbal, in which a Pakistani-American cable installer who was detained on suspicion of terrorism and held under inhumane conditions tried to hold senior government officials accountable for his wrongful arrest, only to have the Supreme Court dismiss his claims while significantly altering the standard for what people have to show just to get their civil cases into court.
Meanwhile, the NAACP Legal Defense and Educational Fund, Inc. (LDF) has been leading efforts in the court system to ensure that everyone can exercise the right to vote. The numbers around the disenfranchisement of people with felony convictions and race are astonishing, both at a national and a local level:
More than 1.5 million Black males, or 13% of the adult Black population, are disfranchised—a rate seven times the national average.
In New York state, Blacks and Latinos collectively comprise 30% of the overall population, but they represent 87% of those denied the right to vote because of a felony conviction.
Appalling as the data may be, countless hurdles still stand in the way of securing people the right to vote. In a case called Hayden v. Paterson, a collection of plaintiffs sued the governor of New York in order to challenge the state’s felon disenfranchisement law (enacted in the early 1800s) on grounds that it violates the 14th Amendment, which guarantees equal protection under the law to all people. In a ruling earlier this year, however, a federal appeals court found that the plaintiffs’ claims in Hayden did not satisfy the new standards adopted in Iqbal for what people need to show to get into court (otherwise known as the pleading standards). Attorneys for the plaintiffs are already back at the drawing board to see what else can be done – but the effect of Iqbal on the felony disenfranchisement case is a strong reminder of how much of an impact rulings about things like the pleadings standard can have for years to come.
Lest we forget that real people are affected by court rulings as well, NCRCR spoke with Mr. Joseph Hayden, lead plaintiff on the case. Mr. Hayden spoke of his education around these issues during his time spent in prison, of how he worked to educate his fellow prisoners and how he forged partnerships with organizations that led to the filing of the class-action lawsuit that has just been dismissed. “We’re right back we started,” he said, noting our nation’s history of troubled race relations. “We have as many people in prisons as we had on the plantations.”
While the weight of all societal injustice does not entirely rest on the court system, the judiciary must stop making it more and more difficult to enforce our hard-earned civil rights -- or even simply to access our fundamental right to vote.
The Supreme Court once said, “The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”
Earlier this year, in Citizens United v. Federal Election Commission, the Court made clear that, according to its way of thinking, “people” includes “corporations.” Previous decisions by the Court suggested that limits on corporate financial contributions served the important purpose of preventing corruption in elections. Now, though, the Court distinction between money given directly to candidates’ campaigns and independent expenditures on advertising or, in this case, a movie, that took a position on a candidate. The Court reasoned that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption,” and concluded that the First Amendment does not allow the government to limit independent expenditures under most circumstances.
As the Supreme Court term ends, it’s timely to look back on one of the key decisions of the year. Some critics of the decision have said that it will undermine democracy by giving corporations unprecedented power; supporters say that it supports free speech. Six months after the Citizens United ruling, we are beginning to see signs of how significant this decision really is.
In Citizens United, the Supreme Court expanded the protection of the First Amendment to corporations that spend money in elections, as long as that money was not a direct contribution to a candidate’s campaign. Corporate spending on behalf of a candidate can no longer be limited in the interests of reducing corruption or the appearance of corruption. This expanded zone of protection offered by the First Amendment restricts laws passed by federal, state and local governments that were intended precisely to limit corporate involvement. Since the Citizens United decision, state courts and officials around the country have invalidated state statutes passed earlier with the intention of creating a buffer zone between business and government.
The Tennessee legislature passed a statute in 1972 that has prohibited use of any corporate funds in any elections. After Citizens United, Tennessee’s Attorney General concluded that the statute was unconstitutional and invalid. According to the Attorney General, corporate funds are now allowed in Tennessee elections as long as they are “independent expenditures,” not direct contributions to a candidate. The Attorney General’s ruling is based entirely on the Supreme Court decision in Citizens United; there was no need for the legislature to revisit the statute. The statute can no longer be enforced because its enforcement would violate the First Amendment as newly interpreted. The 2010 election cycle will be the first time in 38 years that corporate funds will be allowed in Tennessee campaigns.
The Ohio legislature passed a “revolving door statute” in 2005 with the explicit intention of preventing unethical practices by public employees and public officials and to promote, maintain, and bolster the public's confidence in the integrity of state government. The statute prohibited uncompensated lobbying by former members of the Ohio legislature for a year after leaving the assembly. The legislature was also concerned with unequal access to the legislature by outside organizations and concluded that a year waiting period would reduce the effect of such access. The federal district court concluded that the revolving door statute violated the First Amendment after Citizens United. Now, former members of the Ohio legislature can become lobbyists for corporate interests the day after leaving office. They no longer need to wait a year.
In 2002, the people of Colorado amended their state constitution to limit corporate influence in state elections. The 2002 amendments included a provision that made it unlawful for a corporation or labor organization to make expenditures expressly advocating the election or defeat of a candidate and a separate provision that made it unlawful for a corporation or a labor organization to provide funding for an electioneering communication. When asked by Governor Ritter to consider whether these provisions are a violation of the First Amendment after Citizens United, the top court in Colorado concluded that they were. The impact of Citizens United in Colorado is that, despite the clearly expressed desire of the people of the state to protect Colorado’s electoral politics from corporate influence and the passage of amendments to the Colorado constitution, corporations and labor organizations now can spend money to advocate directly for or against a candidate, and to fund campaign communications directly.
Sections of the San Diego Municipal Election Campaign Control Ordinance prohibited election spending by any entity that is not an individual person, imposed a $500 cap on spending by a single entity, and limited spending by candidates on their own behalf to 12 months or more before election day. A federal court in California concluded that those sections cannot be enforced after Citizens United because they violate the newly interpreted First Amendment. Now, corporate entities can spend money to influence San Diego elections; they can spend an unrestricted amount of money. Candidates can also spend their own money to campaign right up until the day of the election.
Whatever you think of the Citizens United ruling, it is important. The examples above serve to illustrate the domino effect such a decision can have on state and local policies throughout the country.
Paula Z. Segal is a second year student at City University of New York
School of Law and a Haywood Burns Fellow in Civil and Human Rights.
Before law school, she taught English to Speakers of Other Languages
and continues to develop materials for ESOL instructors to connect
language and life skills. She is also working with the New York Civil
Liberties Union to reduce the school to prison pipeline and coordinates
the CUNY Street Law Team, which brings the law to New York City high
school students and community groups. For more on the school to prison
pipeline, go to http://www.nyclu.org/issues/youth-and-student-rights.