Judge Alitos Views on Disability Rights under the Constitution

Judge Alito's Views on Disability Rights under the Constitution

By Facsimile:  202-224-9102

United States Senate Judiciary Committee Members
Dirksen Senate Office Building, Room 224
Washington, D.C. 20510

Dear Chairman Specter, Ranking Member Leahy, and Committee 
Members:

We write on behalf of the American Association of People with 
Disabilities (AAPD) and the National Association of the Deaf 
(NAD) to encourage you to use this week's confirmation hearings 
to clarify Judge Alito's views regarding Congressional 
authority to protect disability rights under the Constitution. 
We also write to thank you for your leadership in posing a 
number of questions during Judge Roberts' confirmation hearings 
last September exploring how he would approach disability-
related legal issues as a member of the Supreme Court.

AAPD is a national non-partisan membership organization working 
to promote the political and economic empowerment of the more 
than 50 million children and adults with disabilities and their 
families in the U.S. With more than 100,000 members, AAPD is 
the country's largest cross-disability membership organization. 
Founded on the fifth anniversary of the Americans with 
Disabilities Act (ADA), AAPD has a strong interest in promoting 
full enforcement and implementation of the ADA and other key 
disability rights laws.

NAD is a national non-partisan membership organization working 
to promote, protect, and preserve the rights and quality of 
life of deaf and hard of hearing individuals in the U.S. 
Established in 1880, NAD is the oldest and largest constituency 
organization safeguarding the accessibility and civil rights of 
28 million deaf and hard of hearing Americans in education, 
employment, health care, and telecommunication. 

After carefully reviewing Judge Alito's record, AAPD and NAD 
issued separate statements on December 21 (copy attached) and 
December 27 (copy attached) expressing concerns about how Judge 
Alito might approach issues of federalism and states' rights in 
the context of the ADA and other disability rights laws. We 
share the concerns expressed by Senators Specter, DeWine and 
Kennedy during the Roberts confirmation hearings that the U.S. 
Supreme Court in cases like University of Alabama v. Garrett 
has interpreted the Constitution in a manner that makes it 
unnecessarily difficult if not impossible for Congress to 
establish a record of unconstitutional discrimination against 
disabled state residents sufficient to abrogate state sovereign 
immunity under the Eleventh Amendment.

Our concerns regarding Judge Alito derive primarily from two 
opinions he authored while serving on the Third Circuit, 
Chittester v. Dept of Community & Econ Devt and U.S. v. Rybar.  
In the Chittester case, Judge Alito wrote an opinion stiking 
down Congress' ability to make a state agency comply with the 
Family and Medical Leave Act's (FMLA's) guarantee of up to 
twelve weeks of unpaid leave for personal illness. In his 
opinion, Judge Alito noted that Congress had intended to 
abrogate the states' Eleventh Amendment immunity when it passed 
the FMLA. Evaluating the challenge under the Equal Protection 
Clause of the Fourteenth Amendment, Judge Alito found that 
Congress had failed to make findings sufficient to abrogate the 
state's immunity under the Equal Protection Clause. He went on 
to find that, even if such findings had been made, the FMLA 
provisions requiring unpaid leave for illness would not be 
congruent or proportional to unconstitutional conduct by state 
employers.

Three years after the Chittister ruling, Chief Justice 
Rehnquist wrote a majority opinion for the Supreme Court 
upholding a related FMLA provision requiring up to twelve weeks 
of leave to care for a family member with a serious health 
condition.  Chief Justice Rehnquist's opinion emphasized that 
the state employers' failure to provide for family leave 
implicated the right of women to be free from gender-based 
discrimination in the workplace. 

We encourage you to question Judge Alito regarding his views of 
Congressional authority to protect people with disabilities 
against discrimination by states. We are concerned that the 
analysis he espoused in Chittister might be used to overturn 
favorable ADA decisions like Tennessee v. Lane on the grounds 
that either Congress did not make adequate findings regarding 
discrimination by states in the administration of justice, or 
that the ADA's requirements of access to state courthouses are 
not a congruent and proportional response to the findings 
before Congress when it enacted the ADA. Does he recognize that 
the failure to provide leave for personal illness might lead to 
unconstitutional disability discrimination, just as the failure 
to provide for family leave might lead to unconstitutional 
gender discrimination?  

More broadly, we encourage you to explore Judge Alito's view of 
the appropriate balance of power between Congress and the 
States. Although the Garrett decision addressed Congressional 
power under '5 of the Fourteenth Amendment, federalism concerns 
have lead to similar efforts to narrow Congressional authority 
to protect disabled individuals against discrimination by 
states under the Commerce Clause and the Spending Clause. In 
U.S. v. Rybar, Judge Alito dissented from a Third Circuit 
opinion finding that Congress had the authority to regulate and 
ban intrastate possession of machine guns under the Commerce 
Clause. Judge Alito argued that Congress needed to have made 
factual findings that the matter regulated had a link to 
interstate commerce. We are concerned that Judge Alito's 
proposed Congressional requirement in Rybar, which goes beyond 
the holdings of the Rehnquist Court's Commerce Clause rulings, 
could become another vehicle for second-guessing Congressional 
findings and striking down important civil rights laws if his 
views were to prevail on the Supreme Court.

We encourage you to question Judge Alito to determine whether 
he would hold Congress to the same high standards for findings 
of unconstitutional conduct by states and congruence and 
proportionality under the Commerce Clause and the Spending 
Clause as has been applied under '5 of the Fourteenth 
Amendment. Judge Alito's approach to these issues can have a 
dramatic effect on Congress's ability to provide for 
accessibility and non-discrimination in areas ranging from 
education to voting to communication access to participating in 
community life.

As AAPD noted in its December 21 statement, Judge Alito's 
record in the area of statutory construction of disability laws 
is mixed. Although we disagree with the holdings of some of 
these decisions, we also note a number of positive rulings 
interpreting key laws like the ADA and the Individuals with 
Disabilities Education Act. On balance, we believe his approach 
to federalism and states' rights deserves the greatest 
attention at the hearings, and will be a determining factor as 
we decide whether to oppose, remain neutral, or support his 
nomination. If you would like to discuss any of the issues 
raised in this letter or our statement further, please contact 
Andrew Imparato of AAPD at 202 457-0046 or ImparatoA@aol.com, 
or Kelby Brick, NAD's Director of Law and Advocacy, at 
brick@nad.org.

Sincerely yours,
 					 
Andrew J. Imparato
President and Chief Executive Officer
American Association of People with Disabilities (AAPD)
1629 K Street NW, Suite 503
Washington, DC 20006
202-457-0046 (V/TTY)
www.aapd.com

Nancy J. Bloch
Chief Executive Officer
National Association of the Deaf (NAD)
814 Thayer Avenue
Silver Spring, MD 20910
301-587-7730 (V/TTY)
www.nad.org

----------------------------------
1. 121 Sup. Ct. 955 (2001) (5-4 decision with Justice O'Connor
   in the majority striking down parts of the ADA protecting
   the rights of disabled state employees); cf. Tennessee v.
   Lane, 541 U.S. 509 (2004) (5-4 decision with Justice
   O'Connor joining the dissenters in Garrett to form a
   majority upholding the ADA's requirements of equal access
   for parties to state judicial proceedings).
2. 226 F.3d 223 (2000) (Alito, J., writing for the panel).
3. 103 F.3d 273, 286-294 (1996) (Alito, J., dissenting).
4. Nevada Dept of Human Resources v. Hibbs, 538 U.S. 721
   (2003).
5. 103 F.3d 273, 286-294 (3d Cir. 1996).
6. See, e.g., Gonzales v. Reich, 125 S.Ct. 2195 (2005)
   (accepting arguments rejected by Judge Alito in a Commerce
   Clause challenge to Congress's authority to regulate
   possession and cultivation of marijuana within states.


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