By G. WAYNE BARR

What if you were denied the right to appear in public due to a facial or bodily deformity? What if after acquiring a Ph.D. in chemistry you were sent by a vocational counselor to Goodwill to sort socks? Suppose your first-grader was spanked every day because deafness prevented her from following instructions, or a state imposed restrictions on your right to marry?

If you are disabled it is not hard to imagine. Many have their own unique stories of discrimination. Nor are these situations part of an unenlightened past. For many disabled persons the past is not distant enough, as demonstrated by a recent California court’s refusal to allow a deaf couple’s adoption of an infant despite the glowing testimony of 13 witnesses; or, in 1999, an Indiana trial judge’s order that a successful CEO, who was visually disabled, be accompanied at all times by a “responsible adult” while caring for his daughter.

As the U.S. Supreme Court begins a new session in October, one of the first cases to present oral arguments is Garrett v. University of Alabama at Birmingham. At issue is the constitutionality of the Americans with Disabilities Act -- whether or not states are immune to lawsuits under the act. It is a case that could have a chilling effect on America’s disabled persons and their legal recourse against discrimination.

Garrett is actually two consolidated employment discrimination cases filed against the state of Alabama. One involves the demotion of a woman with breast cancer by the University of Alabama and the other a claim that the Alabama Department of Youth Services failed to provide a reasonable accommodation to an individual with chronic asthma.

In 1977, Patricia Garrett was hired by the University of Alabama health center as a nurse. By the early 1990s, she advanced to director of the center’s neonatal unit. Diagnosed with breast cancer in 1994 she underwent surgery and chemotherapy. After a leave of absence to recuperate, the health center’s administration demoted her to a lesser position that included a pay cut.

In the other case, Milton Ash, who suffers from asthma, sued Alabama because the facility where he worked did not honor a no-smoking policy. Nor did they service their vehicles to keep toxic emissions from aggravating his condition.

A brief filed by Alabama’s attorney general claims that “in passing the ADA, Congress did not identify any pattern or practice of unconstitutional state action, or for that matter even cite a single instance of such conduct.” Thus, it says, Congress exceeded the limits of its powers when it passed Title I, which bars discrimination by public and private employers, and Title II, which bans discrimination in access to public services. Seven states (Arkansas, Hawaii, Idaho, Nebraska, Nevada, Ohio and Tennessee) support Alabama’s claim.

As precedent they cite City of Boerne v. Flores, in which the U. S. Supreme Court held that the 14th Amendment gives Congress the power to enact civil rights statutes only if the statute is designed to remedy a history of unconstitutional conduct. The remedy contained in the statute must also be “proportionate” to the history of constitutional violations.

According to opponents of the Americans with Disablities Act, there may have been discrimination, but the discrimination did not violate the constitution. Nor was it widespread. Moreover, even if there were a record of unconstitutional discrimination, the act is not a “proportionate” response: Congress imposed obligations on states that are “excessive.”

Lawyers for the plaintiffs contend that the act is a constitutionally appropriate measure to remedy past discrimination against people with disabilities. They cite the lengthy investigative House and Senate committee hearings back in 1990 that found states’ history of discrimination toward the disabled so egregious that they legislated the power to override state sovereignty in this matter. Not only did the committee hold 13 hearings devoted specifically to the constitutionality of the proposed act but a task force held 63 public forums across the country and gathered testimony from nearly 5,000 disabled people on discrimination issues they faced. From the in-depth testimony, the hearings concurred that disabled persons experience “the most extreme isolation, unemployment, poverty, psychological abuse and physical deprivation experienced by any segment of our society.”

If Title II is overturned, it will be harder to enforce the act against states. In other words, people unnecessarily institutionalized in state hospitals, nursing homes and other state institutions could no longer have recourse under the act. State employers could refuse to hire people with physical or mental disabilities and would no longer have to provide reasonable accommodations in the workplace.

Could it have a domino effect by imposing similar rulings on other disability rights statutes? If history is to repeat itself, there will be a lot of “disproportionate” suffering.

As pointed out in the 1985 Supreme Court decision, City of Cleburne v. Cleburne Living Center, discrimination toward the physically disabled grew in the 1920s and ’30s, fueled by social Darwinism, the science of eugenics and xenophobia. “Leading medical authorities and others began to portray the ‘feeble-minded’ as a ‘menace to society and civilization … responsible in large degree for many if not all, of our social problems,’ ” the decision stated.

More than 30 states enacted sterilization laws against “epileptics,” “mental defectives,” “socially inadequate,” “the diseased,” “alcoholics,” “manic-depressives,” “schizophrenics,” and “mentally enfeebled paralytics.” These laws were used to sterilize at least 60,000 persons. States adopted statutes that segregated disabled persons. Forced institutionalization went unchallenged until the 1960s.

“Ugly laws,” local ordinances that forbid people with “unsightly” or “disgusting” physical conditions from appearing in public, remained active throughout most of the 20th century. Some states restricted the rights of disabled persons to marry or procreate.

Equally demoralizing for disabled persons was the denial or interference with the right to vote. In testimony given to Congress before passage of the Americans with Disabilities Act, people with disabilities were often turned away from the polling places because they did not appear competent. Polling places were often physically inaccessible.

To date 14 states have signed on to a brief supporting the American with Disabilities Act. This is twice the number of states who support the brief against the act.

However, our applause should be subdued for the moment. Though a majority of the 43 related Circuit Court decisions have found the act constitutional, the frequency of states arguing that they are not subject to suit under the act is on the rise. Each time the Supreme Court accepts a case the possibility exists that Title I or II will be ruled unconstitutional.

With the Americans with Disabilities Act feeling the tug of Supreme Court rulings that could unravel all the good the act has accomplished it is time to cast an eye on this year’s presidential race. Clinton’s successor is expected to appoint several new Supreme Court justices. A recent report issued by the People for the American Way Foundation said that a “Scalia-Thomas majority would make it far more difficult for people with disabilities to prove discrimination.” The report goes on to cite the dissenting opinions of Justices Scalia and Thomas in several cases whereby the majority rulings upheld Titles I and II of the act.

Meanwhile, the continued resistance to hiring disabled people has not abated with the passage of the act. In many states, the percentage of state employees with disabilities remains well below the percentage of working age Americans with disabilities. And during the greatest economic boom of all time many of the physically disabled are still underemployed or live beneath a dignified level of subsistence. According to a recent Harris survey one out of three adults with a disability live in households with total income of $15,000 dollars.

Are we to return to an era when official reports referred to people with disabilities as “defect[s] … [that] wound our citizenry a thousand times more than any plague,” as “by-products of unfinished humanity,” and as a “blight on mankind” whose mingling with society was “a most baneful evil”?

We may be too socially sophisticated these days to say such words but our silence and indifference on the issue speaks volumes.

G. Wayne Barr, an oblate of Mount Saviour Monastery, works part-time as a mentor assistant for SUNY Empire State College in Corning, N.Y. His e-mail is WaySi53@aol.com

National Catholic Reporter, October 6, 2000

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