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Hawaii joins
Alabama in touchy
anti-bias case

It involves the Americans with
Disabilities Act, but might affect
special ed programs for children

By Crystal Kua
Star-Bulletin

Hawaii is stepping into a national debate over whether states should be immune from complying with a key federal anti-bias law as part of a case to be heard by the U.S. Supreme Court next fall.

But advocates of people with disabilities say they are disappointed that the state supports what they see as an erosion of federal protections under the Americans with Disabilities Act, which prohibits discrimination against a person with a mental or physical disability. They also say it could undermine the Felix consent decree.

"So many people have spent so many years advancing the civil rights of people with disabilities," said Gary Smith, president of Hawaii Disability Rights Center.

"When you start chipping away at these hard-won rights, it does have this domino effect, or it could conceivably have it."

State attorneys acknowledge that the outcome of the Alabama case they are joining could also affect special education programs through the federal Individuals with Disabilities Educational Act, or IDEA.

"The decision by the Supreme Court would deal only with the ADA. However, it's precedential value may be significant to other acts as well," Hawaii Senior Deputy Attorney General Charles Fell said.

IDEA requires that students with special needs be given access to educational and mental health services. It's the primary underlying law in the so-called federal Felix consent decree, which seeks to improve such services to special needs students in Hawaii.

Fell declined to say what the state's intent would be with regard to IDEA, but he said the focus for the state at this time in this case is the Americans with Disabilities Act.

"There's not a grand scheme to move from ADA to IDEA," he said.

The state attorney general's office is currently writing a friend-of-the-court brief to support Alabama's position that the 11th Amendment gives states and their agencies a "sovereign immunity" from private lawsuits brought under federal law.

"We view the issue as a states' rights issue," Fell said. "We're asking the court to determine the application of the 11th Amendment immunity under Titles I and II of the ADA."

Those sections of the law make it illegal for employers to discriminate against a qualified worker who has a disability and also require that government programs and services be made available to persons with disabilities.

The U.S. appeals court in Atlanta ruled against Alabama last year in cases brought against two state employers, the University of Alabama board of trustees and the Alabama Department of Youth Services.

The case is now in the U.S. Supreme Court, with briefs due later this month and oral arguments scheduled for October.

Smith said recent rulings by the high court have been favorable to states' rights.

"The current Supreme Court seems to be extremely sympathetic to state sovereignty issues, and that's just a real threat to the kinds of federal legislation that have gone a long way toward advancing the civil rights of people with disabilities."

Board of Education member Garrett Toguchi, chairman of a committee that oversees public school special education programs, said he is concerned about the implications on special needs students.

"I think it is critical that we continue to serve kids with disabilities," said Toguchi, also director of The ARC in Hawaii, which provides services to the mentally challenged to enable them to live in the community.

Toguchi agreed with Smith that if civil rights are taken away, it will be difficult to argue for support and reasonable accommodations for those with disabilities.

"It's truly going to create an image that federal laws can be overturned."

Smith and other disabilities and civil rights organizations like the American Civil Liberties Union of Hawaii have begun an informational campaign to persuade the state to change its position.

Fell said the state was hit hard with hundreds of legal claims after a 1996 case in which a federal judge ruled that under ADA the state discriminated against the blind and those with other disabilities when it first offered its QUEST health plan for the poor.

The department originally excluded those with disabilities because many were eligible for federal Medicaid benefits, but has since changed its practices.

Fell said the state was penalized for trying to provide universal health care.

It should be the Legislature that should set up laws to protect against discrimination, Fell argued, "It should not be Congress. We should not be hauled into federal court to be asked why we engaged in certain state programs."

Fell said there are sufficient state laws to protect against discrimination, but Smith disagreed.

"If that's the case, why are they concerned about the federal law?"