Tag: Anti-discrimination Law

Law in an Elevator: When Leveling Down Remedies Let Equality Off in the Basement – Note by Jean Marie Doherty

From Volume 81, Number 5 (July 2008)
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When fifteen-year-old Elisa Cazares was not nominated for membership to her high school’s chapter of the National Honor Society, she and her teachers were surprised. As the “brightest student” her math teacher had “seen come through” Tohono O’Odham High School, Cazares was one of four members of the student government, had been on the honor roll for every report period, and was active in a number of student activities. Arguing that the selection committee declined to nominate her because she was pregnant, unwed, and not living with the father of her future child, Cazares claimed that her equal protection rights had been violated and brought suit in federal district court. In holding that Cazares’s exclusion constituted a violation of her equal protection rights, the district court mandated that “no student . . . [could] be inducted into the National Honor Society unless and until Elisa Cazares [was] among them.” To achieve compliance with the district court’s instructions, Tohono O’Odham canceled the induction ceremony, remedying the violation by denying both Cazares and the students the selection committee had already nominated access to the Society.

 

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Brown v. Kamehameha Schools: An Instrumental Critique of Remedial Self-Segregation in Private Education – Note by Donald A. Thompson

From Volume 81, Number 4 (May 2008)
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The Kamehameha Schools are a series of private, nonprofit, nonsectarian campuses interspersed throughout the Hawaiian Islands. Founded in the late nineteenth century, they have operated continuously ever since, fulfilling their mission to provide a “good education in the common English branches, and also instruction in morals and in such useful knowledge as may tend to make good and industrious men and women.” With over five thousand students enrolled in kindergarten through grade twelve, the Kamehameha Schools are collectively among the largest independent primary and secondary educational institutions in the United States. Otherwise—apart from their strong academic reputation and champion athletic teams—they might be perceived as fairly typical schools. This perception is deceiving. To the contrary, they are anything but.

 

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Looking Behind the Curtain: Applying Title III of the Americans with Disabilities Act to Businesses Behind Commercial Websites – Note by Kenneth Kronstadt

From Volume 81, Number 1 (November 2007)
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In 1990, Congress enacted the Americans with Disabilities Act (the “ADA” or the “Act”) with the goal of eliminating discrimination against disabled Americans by providing clear, strong, consistent, and enforceable standards to combat the type of discrimination people with disabilities face in their everyday lives. The ADA is the force behind the wheelchair ramps so common in American buildings, the wide doors and large bathroom stalls to accommodate the disabled, the talking ATMs to assist individuals who are blind, and the acceptance of service animals in restaurants and shops. Yet the ADA has provided little help to disabled Internet users.

 

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An Unworkable Rule of Law: The ADA, Education, and Sovereign Immunity; An Argument for Overruling Seminole Tribe of Florida v. Florida Consistent with Stare Decisis – Note by Christopher Cowan

From Volume 80, Number 2 (January 2007)
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On July 26, 2005, President George W. Bush released a proclamation celebrating the fifteenth anniversary of the Americans with Disabilities Act (“ADA”), signed into law by the former President Bush. In the proclamation, President Bush “call[ed] on all Americans…to fulfill the promise of the ADA [and] to give all people the opportunity to live with dignity, work productively, and achieve their dreams.” At the time of its signing there were more than forty-three million disabled persons in the United States; this number has grown to more than forty-nine million. The purpose of the ADA was to eliminate discrimination against this growing population in a number of areas by providing a “legal recourse to redress such discrimination.”

While the overall success of the ADA is debatable, it is clear that private enforcement of the ADA has been under attack for the last ten years – at least when the defendant is a sovereign state. Since the controversial Seminole Tribe of Florida v. Florida decision in 1996 – holding that Congress can abrogate a state’s sovereign immunity only through a valid exercise of Section 5 of the Fourteenth Amendment – the survival of a private cause of action against a state entity under the ADA has been questionable. In the last five years, the Court has attempted to provide an answer. In Board of Trustees of the University of Alabama v. Garrett, the Court held that Title I of the ADA, which prohibits disability discrimination in the context of employment, was not a valid exercise of Section 5 and therefore could not abrogate state immunity. Although the Garrett decision was limited to Title I, many of the lower courts assumed that the sovereign immunity bar would extend to Title II, which regulates access to public services and programs. Then, in Tennessee v. Lane, the Court held that Title II’s application to the fundamental right of access to the courts was a valid exercise of Section 5, and the immunity bar was tentatively lifted.

 

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