SB1760 !Talking Points! !!VETOED!!!

!Vetoed! Wednesday, September 29th
Reposting the Alert, the Ragged Edge Article, and the letter to the State Agencies so you can frame your comments.
Thank you for your continued support of this important legislation!
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Sovereign Immunity, Disability Discrimination and Us
By Laura Williams
What is "sovereign immunity" and why should we care?
The Eleventh Amendment to the U.S. Constitution reads, "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."
When the issue of racial equality emerged on the open battlefield in the middle of the last century, our leaders agreed that the pattern of discrimination by states themselves against racial minorities was so clear that it was "sufficient" to override states' sovereign immunity.
Why isn't it the same when the courts look at discrimination against persons with disabilities?
Sovereign immunity for individual states goes back to our very formation as a union of states. The Eleventh Amendment to the U.S.. Constitution gives individual states immunity from suits in federal court.
This immunity was -- and is -- very important. It means states are protected from tariff wars with each other; are protected from land and possession disputes between the states, are protected from suits from foreign nations and, to a limited extent, from suits by individuals.
These separations and immunities have served our union well.
But when the issue of racial equality emerged on the open battlefield in the middle of the last century, the executive and legislative branches of our government, and the Supreme Court, agreed that the pattern of discrimination by states themselves against racial minorities was so clear that it was "sufficient" to override -- "abridge" is the legal term used -- the sovereign immunity protection states enjoyed under the Eleventh Amendment. Thus, when it came to discrimination against racial minorities, states could be sued to ensure equal access to civil liberty for racial minorities.
Not only that; but states could be sued for all forms of of discrimination against persons of color. The courts did not require that the state be proven to discriminate against persons of color in all forms of discrimination. The fact that there was a "pattern" of discrimination by a state was accepted as valid reason for a suit.
Why isn't it the same when the courts look at discrimination and barriers to equal access for persons with disabilities?
Aside from the fact that the courts themselves have been at the fore of this type of discrimination and lack of access to equal justice, the fact is that persons with disabilities are not viewed as one group (a "discrete and insular" minority is the term the law uses) suffering from a wide pattern of discrimination.
That fact alone has allowed the courts, the states and the federal government to judge disability barriers at the minutiae level of contractual law rather than at the level of a broad-based civil rights law.
The American public may never come to regard people with disabilities seen as a "discrete and insular" minority, because we are disparate in so many ways. The many barriers we face are often not judged for what they are -- barriers -- but are seen as simply the products of our own inabilities.
Many Americans see our disabilities as the progenitor of discrimination. They do not see the barriers that lack of inclusion generates in every aspect of our daily living.
Over the next decades, we must work to change that perception. We must get the public to understand that it is not the wheelchair that is the problem, but the lack of a surface that can be safely traveled by wheels. It is not the blind eye that is the problem, but the lack of ensuring that every print publication be provided in alternative format at the time of issuance. It is not the problem of the learning disabled that they have been denied full inclusion and acceptance as American citizens by the populace at large.
There should be no barriers inserted when structures are designed, when programs implemented, when services at every level are provided -- barriers that later need removing. They should not be designed in the first place.
The barriers we face every day have been designed and inserted out of ignorance and lack of respect for differences within the American populace. Through design foresight and patterns of inclusion, we can participate fully in our American dreams.
Until then we must fight to preserve the Americans with Disabilities Act with our every breath and energy.
One way to do this is to ask each of our states to waive its immunity from ADA lawsuits.
A bill to waive California's immunity was introduced into the CA Assembly Feb. 20. The bill, known as SB 1760, would add a section to current law "stating that the State of California consents to be sued in state or federal court by any person seeking to enforce rights or obtain remedies afforded by the Americans with Disabilities Act of 1990." To learn more about the bill, go to http://www.leginfo.ca.gov/bilinfo.html - type "SB 1760" into the query section.
Posted March 11, 2004.
Laura Morris Williams is president of Californians for Disability Rights.

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An Open Letter to Justice Scalia
The Honorable Associate Justice Antonin Scalia, Supreme Court of the United States of America
Sir,
I have read the comments and opinions rendered by yourself and other members of the Supreme Court of the United States during the hearing of Tenn v. Lane. As a citizen of these United States, I am compelled to respond to certain of those comments and opinions.
"That depends on what is meant by the term
`discrimination,' " Justice Antonin Scalia said.
Mr. Clement replied that Congress had found examples of inaccessible polling
places that deprived people with disabilities of the right to vote.
"An inaccessible voting place proves nothing at all," Justice Scalia said. "It just
shows that the state didn't go out of its way" to provide help.
Clause 1: [Constitution of the United States]
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Sir, are you saying that when I as a person with a disability arrives at a polling place to excercise my right to vote, that when I cannot access the place where every other citizen in my voting district is exercising their right to vote, that when I am handed a provisional ballot at the bottom of a set of stairs, that provisional ballot not being countable as a vote as a normal course of events, that circumstance does not substantially violate my right to excercise the Privilege accorded to all other Citizens within my voting district, not otherwise impaired by physical or other disability to access the Poll, as afforded in the Constitution of these United States.
I was unaware Sir, that disabled citizens of these United States had been suborned to a second class citizenship, as not entitled to Constitutional protection of all Privileges of Citizens in the several States.
Sir, I can tell you that I expect to be able to personally deliver and place my vote in every election in my district, in every polling place and that any polling place and method of placing a vote that does not afford to every citizen a place and method that allows the right of a private vote for every citizen is a substantial limitation of privilege.
Sir, as an Associate Justice of the Supreme Court of these United States, I would further expect that you acknowledge that Citizens of these several States come in every color and every ability and having attained the age of 18, must have the full privilege to vote sustained by every court and the Supreme Court. To do less is unacceptable. To do less is unconstitutional. To do less is un-American.
Yet during arguments on January 13th, 2004:
**During Tuesday's argument, Justice Antonin Scalia said he saw no
constitutional reason why state agencies cannot discriminate against persons he
referred to as "handicaps." Some states "may not have made it easy for handicaps to
vote," he said, but that is not reason enough for Congress to subject states to
lawsuits, he said.
Chief Justice William H. Rehnquist agreed.
And Further when Justice John Paul Stevens asks whether it's true that in 1975 more
than a million students were barred from public schools that were not handicapped-accessible,
and whether that violates the Constitution. Moore doesn't answer, but Scalia does:
"You don't concede that the Constitution is violated by not providing
educational facilities to all handicapped children?" he asks. All you need is a
"rational basis" for keeping them out, Scalia points out. "It's enough that the
cost would be excessive. So saying that so many handicapped students can't get
into schools means nothing at all."
But discriminating against persons with disabilities is in fact a long standing issue in
federal courts and the Supreme Court.
Federal courts, as a long-standing constitutional
protection, are exempt from laws passed by Congress, including the ADA.
Marcia Bristo, formally with the National Council on Disability, who uses a
wheelchair, remembers being told to wheel herself off to the side of the high
court during a 2001 hearing.
John Stanton, a deaf lawyer who does not know sign language, was told that his
real-time transcription device was not allowed in the
austere, marble-lined courtroom.
Jeff Rosen, legal counsel at the disability council, was hassled by court marshals, who said his sign-language interpreter might distract the justices. "They have a segregationist attitude in their
courtroom," said Rosen, who chose not to attend yesterday's hearing, saying he
did not want to confront the situation again. "Together with their opinions, which
have continuously narrowed the ADA since it was passed, I think it shows that
they really don't understand these issues."
Rosen said at least one deaf guest was told initially that she could not bring in her
transcription device, and got it approved only after a lawyer called the court's marshals. "If it were
someone else, who didn't have access to a lawyer to advocate for them, they might get
squashed," he said. "That's not fair." **
Justice Scalia, I call on you and every federal court to uphold the constitution of these United States and
afford every citizen the privileges accorded to citizens of the several States and recognize that these citizens come in every color and ability and that privilege cannot be limited by an individual's color or
ability.
To do less is unconstitutional. To do less in un-American.
Respectfully,
Laura Morris Williams, President
Californians for Disability Rights
**Quotations are from many of the dozens of articles surrounding the January 13th, 2004 arguments
of Tenn V. Lane

California has responded to the very real risk of loss of protection under the ADA title II with SB1760,
Perata, Sovereign Immunity Waiver for violation of the Americans with Disabilities Act of 1990.

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Letter to State of California Agencies
Re: SB 1760 Sovereign Immunity Waiver
Dear Sirs and Madams,
The State of California has a long standing and well deserved reputation for upholding the rights and dignity of person’s with disabilities. That is a direct result of the hard work and response by the many and varied state agencies that oversee and administer the many programs and services to the citizens of this great state.

In the decades following the passage of section 504 of the rehab Act, Title 24 and the American’s with Disabilities Act, agencies have responded to and modified policy and procedure where to do so improved the delivery of service for person’s with disabilities.
We in the disability community wish to acknowledge and commend the effort. We in the disability community have been compelled by recent Supreme Court decisions to ask the State of California to waive sovereign immunity in application to the ADA.
Please allow me to address some concerns that have arisen in regards to SB 1760, Perata, Sovereign Immunity Waiver.
>Waiving immunity will tie the hands of state agencies.
There is nothing in the immunity waiver that restricts strong and appropriate defense to any action.
Justice is served when two parties can be heard in court and have the benefit of Judicial review.
>The State will be open to lawsuits.
The best defense are the proactive measures taken to ensure the appropriate delivery of services and
programs to person’s with disabilities.
>The State’s Attorney General is in place to defend agencies in court.
The AG is ALSO in place to defend the rights of the citizen’s of California and uphold and enforce
the law so that all persons are provided with appropriate program and service delivery.

I wish to thank you for your time and consideration
Best Regards,
Laura Williams, President
Californians for Disability Rights
Co-Sponsor of SB 1760

****Sample Letter - amened to address Governor

Dear Governor ____:

I am writing in support of SB1760 by Senator Don Perata, which waives the state's sovereign immunity claims with regard to suits in federal court under the federal Americans with Disabilities Act (ADA). This bill is on your desk for signature.

SB1760 would provide that the State of California consents to be sued in state or federal court by any person seeking to enforce rights or obtain remedies afforded by the ADA. Further, it prohibits any public agency involved in an action under the ADA to assert that they have any immunity from suit under the Eleventh Amendment to the United States Constitution.

Recent U.S. Supreme Court decisions have interpreted the Eleventh Amendment as providing the state immunity from suits by individuals with disabilities who have been injured by discrimination in violation of the ADA. However, the court has made clear that the states are free to waive their immunity and consent to be sued by statute. It is the purpose of SB1760 to make it clear that the State of California waives this immunity, to achieve the intention of Congress in enacting the ADA. Congress intended to hold states accountable for discrimination against people with disabilities. In addition, California has long been a leader in protecting the civil rights of persons with disabilities, and has not tried to immunize itself from responsibility under the ADA. I ask that you sign SB 1760, and thereby reaffirm the State's commitment to the civil rights of persons with disabilities. This is a very important issue for all persons with disabilities. Without an effective enforcement method, the ADA is a hollow promise.

Thank you for the opportunity to present my views on this issue.

Sincerely,