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More information     Details of Samuel Alito's Record on Disability Issues Congressmen Join Disability Groups in Opposing Alito Nomination Statement of Senator Tom Harkin (D-IA) In Opposition to the Nomination of Judge Samuel Alito

A Threat to People with Disabilities

(November 13, 2005) Samuel Alito, President Bush’s nominee to replace Justice Sandra Day O’Connor on the Supreme Court, poses a serious threat to people with disabilities. Having sat on a federal court of appeals for 15 years, Judge Alito has a record of decisions hostile to disability rights.

If Judge Alito replaces Justice O’Connor:

1. The Supreme Court Might Strike Down Disability Rights Statutes

Judge Alito has a troubling view of Congress’ power to pass civil rights laws. His vote could place in jeopardy the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, the Fair Housing Amendments Act, the Family and Medical Leave Act (FMLA), the Individuals with Disabilities Education Act (IDEA) and other disability rights statutes.

Justice O’Connor was often the deciding vote in cases about Congress’ power. If Judge Alito is confirmed, there is every reason to expect that important decisions about Congress’ power will come out differently. He would likely become a critical fifth vote to strike down portions of disability rights laws as unconstitutional.

On the federal appeals court, Judge Alito:

• Ruled that Congress lacked power to enact the FMLA.1 Later, in a similar case, the Supreme Court came to the opposite result.2 It rejected Judge Alito’s reasoning that the FMLA was not an appropriate response to discrimination.
  
• Dissented when the federal appeals court upheld Congress’ power to ban possession of machine guns.3 His reasoning rejected over 60 years of case law regarding Congress’ power to regulate interstate commerce. 4

It is critical that the new Supreme Court justice be someone who will respect Congress’ authority to enact needed protections for people with disabilities.

2. Olmstead May Be at Risk

• Before the Supreme Court decided Olmstead, upholding the integration mandate of the ADA, the appeals court on which Judge Alito sat decided a similar case, Helen L. v. DiDario.5 A three-judge panel of the court (appellate cases are normally decided by three judges) decided that the ADA outlawed unnecessary institutionalization. The state of Pennsylvania, which lost the case, asked all the judges of the court (not just the three that issued the decision) to reconsider and reverse the ruling. Fortunately, the circuit court refused to do so. But Judge Alito had voted to rehear the case, presumably because he wanted the decision to go the other way. We need a friend of Olmstead on the Supreme Court, not someone who may have antipathy to it.

3. Rights Enforcement Would Be Further Eroded

• In Sabree v. Houstoun, 6 Judge Alito questioned court rulings that allow individuals who have been denied services under Medicaid to sue to enforce their rights. He noted that these rulings were “currently binding precedent” but expressed discomfort with them.
  
  
• Judge Alito joined a decision that prevented individuals with disabilities and the disability rights group ADAPT from suing the Department of Housing and Urban Development (HUD) for failing to enforce its regulations concerning accessible housing. ADAPT v. United States Dep’t of Housing & Urban Development. 7 HUD had not fulfilled its duty to ensure that multi-family housing was accessible to people with disabilities. It had also failed to investigate complaints of inaccessible housing and take enforcement action, although HUD officials had acknowledged widespread compliance problems. A later decision, in which Judge Alito was not involved, also barred people with disabilities from suing local housing authorities to solve the problem. 8
  
  
• Judge Alito joined a decision allowing the National Board of Medical Examiners to flag the test scores of individuals who received accommodations on their medical licensing exams due to their disabilities.9 The plaintiff claimed that the medical board’s practice subjected him to possible discrimination in internship and residency programs. The court ruled that flagging was not discrimination because the ADA does not specifically bar it. The decision reflects a misunderstanding of and hostility to the ADA.
  
  
• Judge Alito joined a decision allowing an employer to fire an employee who had been hospitalized for three weeks due to depression and a sleep disorder.10 Joining a decision that reflects hostility to people with disabilities, Judge Alito said the employee was not protected by the ADA or the FMLA.
  
  
• Judge Alito joined a decision seriously weakening the protections of the Fair Housing Act. He excused local zoning boards from engaging in a process to identify reasonable accommodations needed to provide equal access for people with disabilities.11
  
  
• Judge Alito dissented in a case where the majority of the court found that a medical student was entitled to a trial on her claims challenging her school’s failure to make accommodations for her back injury. The majority severely criticized Judge Alito’s analysis and stated that “few if any Rehabilitation Act cases would survive summary judgment if such an analysis were applied to each handicapped individual’s request for accommodations.” 12
  
  
• As an assistant attorney general in the Justice Department, Alito helped write a memo to the General Counsel of the United States Department of Health & Human Services that would have eliminated most of the protections provided by Section 504 against discrimination based on HIV or AIDS.  The memo argued that Section 504 allows discrimination based on a person’s AIDS or HIV if the discrimination is based on the person’s real or perceived ability to transmit the disease to others.  
  
  
• Judge Alito dissented from an opinion reinstating the claims of an employee with developmental disabilities who was subjected to repeated cruel assaults.  The man’s coworkers forcibly sodomized him with a broom, stuffed him into a garbage can, beat him, and made humiliating comments about his mental disability 13.   Judge Alito would have dismissed the man’s claims because he did not use the right language in his brief.
  
  
• Alito was a member of Concerned Alumni of Princeton (CAP), an alumni group protesting equal rights for women, minorities, and people with disabilities.  A 1983 essay in CAP’s magazine complained that “People nowadays just don’t seem to know their place. . .  Everywhere one turns blacks and hispanics are demanding jobs simply because they’re black and hispanic” and “the physically handicapped are trying to gain equal representation in professional sports.”

Conclusion

These are highlights of a long and troubling record. While Judge Alito has written and joined some positive decisions, overall his nomination to the Supreme Court is a threat to people with disabilities. On the Supreme Court, his decisions would almost surely result in a range of restrictions on the hard-won rights of people with disabilities.

1. Chittister v. Department of Community & Economic Development, 226 F.3d 223 (3d Cir.
2000).

2. Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003).

3. United States v. Rybar, 103 F.3d 273, 286-94 (Alito, J., dissenting).

4. The Supreme Court’s recent decision in another case squarely rejects the reasoning of Alito’s
dissent in the gun possession case. See Gonzales v. Raich, 125 S.Ct. 2195 (2005).

5. 46 F.3d 325 (3d Cir. 1995).

6. 367 F.3d 180 (3d Cir. 2003).

7. 170 F.3d 381 (3d Cir. 1999).

8. Three Rivers Center for Independent Living v. Housing Authority of Pittsburgh, 382 F.3d 412
(3d Cir. 2004).

9. Doe v. National Board of Medical Examiners, 199 F.3d 146 (3d Cir. 1999).

10. Katekovich v. Team Rent A Car of Pittsburgh, Inc., 36 Fed. Appx. 688 (3d Cir. 2002).

11. Lapid Laurel, L.L.C. v. Zoning Board of Adjustment of Scotch Plains, 284 F.3d 442 (3d Cir.
2002).

12. Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1387 n.13 (3d Cir. 1991).

13. 1999 WL 1065214 (E.D. Pa. Nov. 23, 1999).