Lex Frieden, Chairperson
January 2004

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NCD Celebrating 20 Years as an Independent Federal Agency, 1984-2004

Tennessee v. Lane

On January 13, the Supreme Court of the United States conducted oral arguments in Tennessee v. Lane (02-1667). Few cases are more compelling than those involving a person in a wheelchair who has to crawl up the courthouse steps to participate in court proceedings, as did the plaintiff in this case. NCD, in first proposing and then drafting the Americans with Disabilities Act (ADA), worked closely with Congress in crafting Title II of the ADA to prevent just the type of discrimination Mr. Lane experienced.

In 1998, George Lane and Beverly Jones brought a lawsuit against the State of Tennessee under Title II of the ADA alleging that several courthouses in the state were inaccessible to people who use wheelchairs. Title II prohibits government entities from denying public services, programs, and activities to individuals on the basis of their disability. In addition, it provides that people who have been discriminated against on the basis of disability can seek damages from government entities, including states. The State of Tennessee argued that it was protected from ADA lawsuits by the Constitution, which grants sovereign immunity to states from damage suits brought by individuals.

Much is at stake in Lane. The courts of appeals are deeply divided about the constitutionality of the damages remedy under Title II and about the basic question of whether the power of Congress to override sovereign immunity should be determined for Title II overall or only for certain applications. Limiting the Title II remedy to recognized constitutional violations or to violations based on the Due Process Clause would impose arbitrary limitations on the reach of the remedy because it would exclude situations where Congress was well within its power to legislate under Section 5 of the Fourteenth Amendment, and where the states have demonstrated a record of invidious discrimination on the basis of disability. Not only would such a ruling weaken the effectiveness of Title II by eliminating the ability of plaintiffs to obtain damages against the states, it would eliminate one of the fundamental bases of congressional power to require the states to provide access to public facilities. While there are two other possible sources of congressional power to require access-Section 504 of the Rehabilitation Act, based on the Spending Clause, and injunctive actions against state officials based on the Commerce Clause-these sources are also under attack and subject to many of the same theoretical debates about the federalism framework that have deeply divided the current Court. Thus, the result in Lane could have implications far beyond the damages remedy and even beyond Title II itself.

According to a friend-of-the-court brief filed by the U.S. Department of Justice (DOJ), "In Title II, Congress formulated a statute that, much like federal laws combating racial and gender discrimination, is carefully designed to root out present instances of unconstitutional discrimination, to undo the effects of past discrimination, and to prevent future unconstitutional treatment by prohibiting discrimination and promoting integration where reasonable." As such, DOJ concludes that "application of Title II of the Americans with Disabilities Act to States and their subdivisions falls squarely within Congress's comprehensive legislative power under Section 5 of the Fourteenth Amendment to prohibit, remedy, and prevent violations of the rights secured by that Amendment."

NCD's policy paper Tennessee v. Lane: The Legal Issues and Implications for People with Disabilities discusses the case and its constitutional and policy issues. The paper examines the Lane case in the context of the recent trend in Supreme Court decisions limiting the power of Congress to regulate the states. It is clear that the Supreme Court should decide that Title II does override the states' sovereign immunity and that these plaintiffs can seek damages from the State of Tennessee.

A decision is expected later this year.

NCD Releases Disability Statistics Paper

On January 9, NCD released Improving Federal Disability Statistics, a position paper that describes critical issues involving federal disability data. The paper describes an urgent need for the Departments of Commerce and Labor to address matters related to the collection of disability data through the Decennial Census, the American Community Survey, and the Current Population Survey.

Every 10 years the U.S. Census Bureau conducts a complete accounting of every resident in the United States. While there is no congressional mandate requiring an accurate enumeration of Americans with disabilities, communities and people with disabilities will be affected if the Census is inaccurate. Census data are used by educators, policymakers, and community leaders. Census data directly affect funding for many programs critical to individuals with disabilities, including programs for health care, transportation, employment training, and housing. Federal, state, and county governments use Census information to guide the annual distribution of hundreds of billions of dollars in critical services and supports.

There have been some improvements in interview methodology and in the use of a few disability questions in the Decennial Censuses over the past 30 years. Unfortunately, those improvements have been small and incremental.

At a time when cash-strapped states are grappling with major unmet human service needs and increasing numbers of people require a range of services and supports from federal-state programs, the responsibility of our nation's public leadership is at an all-time high to provide accurate Decennial Census data (and related federal survey data such as the Current Population Survey conducted by the U.S. Bureau of Labor Statistics) to states and locales.

NCD recommends:

The U.S. Census Bureau should immediately revise Census questions for the Year 2010 Census (and the American Community Survey) to reflect the ADA definition.

The Department of Labor should finish its work with all due haste involving questions being developed by the Bureau of Labor Statistics (BLS) to identify people with disabilities in response to Executive Order 13078 through its redesign of disability employment questions for the BLS Current Population Survey.

NCD acknowledges that the collection of disability data involves complex issues, methodologies, and activities. NCD is fully confident that these Cabinet agencies can address these concerns and recommendations in a timely and effective way.

Legislative Update

Senator Tom Harkin (D-IA), along with Senators Gordon Smith (R-WA) and Arlen Specter (R-PA), sent a bipartisan letter to Senate Finance Committee Chairman Charles Grassley (R-IA) and Ranking Democrat Max Baucus (D-MT) calling for a hearing on the institutional bias in the Medicaid program. The Medicaid statute requires that states provide nursing home care, but gives states the option of whether to offer home- and community-based services.

The Money Follows the Person Act (S. 1394), introduced by Senator Harkin and cosponsored by Senators Smith, Specter, and others, would address this inequity and pending before the Finance Committee. The bill would give states additional resources to provide home- and community-based services to individuals choosing to leave a nursing home or institution. The Medicaid Community Attendant Services and Supports Act (MICASSA), S. 971, cosponsored by Senator Specter and others, would require states to provide community-based attendant services to individuals with disabilities and older Americans. Both bills are needed to fully address the lack of choice in the current Medicaid program.

Congressional Research Accessibility Act-Members of the House of Representatives interested in public access are pushing for a bill to put all Congressional Research Service (CRS) reports online. CRS is the research arm of the U.S. Congress and authors numerous reports and products on issues ranging from the environment to the budget. Even though taxpayers pay more than $80 million annually to fund CRS operations, the public is unable to access the reports through the organization's Web site, a feature restricted to congressional offices. CRS has a number of research briefs of great importance to people with disabilities, and greater public access to CRS information will be helpful.

The FY 2004 Consolidated Appropriations bill (H.R. 2673, P.L. 108-199) was signed into law on January 23, 2004. The bill provides funding for the federal government for Fiscal Year 2004, which began on October 1, 2003. It also includes funding for NCD at $3,039,000, an increase of $200,000.

Among other things, the bill contains a Disability Access provision (Sec. 587) related to the United States Agency for International Development (USAID). This provision was recommended by NCD in a September 2003 report, Foreign Policy and Disability: Legislative Strategies and Civil Rights Protections to Ensure Inclusion of People with Disabilities. It ensures that programs, projects, and activities administered by USAID in Afghanistan comply fully with USAID's Disability Policy Paper (http://www.usaid.gov/about/disability/DISABPOL.FIN.html).

NCD Vacancy Announcement

NCD is seeking qualified applicants to fill a new position as a congressional liaison specialist (http://jobsearch.usajobs.opm.gov/), Announcement No.: NCD-04-01, GS-301-12/13/14, Salary Range: $59,303-$108,335. Opening January 26 and closing February 27.

The incumbent serves as a congressional liaison specialist with responsibility for advising and assisting in the development, administration, coordination, and execution of plans, policies, and procedures for carrying out NCD's legislative program activities. The specialist will serve as a link between NCD and Congress and staff of other federal agencies. The specialist will recommend, participate in development and strategic planning, and implement NCD legislative affairs programs such as issue briefs; legislative research and analysis; tracking of legislation; congressional hearings participation; congressional staff briefings; and legislative initiatives. He or she will recommend areas where NCD should consider legislative initiatives and plan and implement such programs. The specialist will prepare written and verbal NCD responses to complex congressional and Administration inquiries. She or he will provide expert advice and assistance in implementing legislative affairs programs and congressional correspondence programs.

Candidates may submit an Application for Federal Employment (SF-171), an Optional Application for Federal Employment (OF-612), resume, or any other written format to U.S. General Services Administration, National Capital Region, Agency Liaison Division, Room 7120 7th & D Streets, SW, Washington, D.C. 20407, Attn: Phyllis Vessels, or Phone: (202) 708-5702, or Email: phyllis.vessels@gsa.gov.