Naked City

The ADA? Not in This State!

By Michael King, Fri., Dec. 26, 2003

In one of the charming ironies of political life in Texas, disabled Attorney General Greg Abbott is defending the state against a lawsuit charging that the state does not comply with the Americans With Disabilities Act. Texas was sued in 2002 by advocacy groups Arc of Texas and Advocacy Inc., on behalf of citizens with mental retardation and other developmental disabilities, because the state consistently does not provide sufficient community-based services to serve more than 25,000 people who have lingered for years on waiting lists for such services.

The state's defense is not that those services are not needed, but that only private entities can be held responsible under the ADA, because it is unconstitutional for the federal government to force states to comply. A district court didn't buy that argument -- there's plenty of precedent for lawsuits against states violating federal law -- so Texas has appealed to the 5th Circuit.

Abbott argues that he inherited the lawsuit and that in any case he has to put the state's interests above his own. It took a similar 1995 lawsuit by the Texas Civil Rights Project to get the state Supreme Court building renovated to allow access to those with disabilities -- fortunately for Abbott, then a newly elected justice of that court, who has used a wheelchair since being hit by a falling tree while jogging in Houston in the 1980s. But now the state takes the position that only private entities can be sued to enforce the ADA. Spokesmen for the state also argue that Texas cannot afford to comply with the law, but in fact community-based services are generally cheaper than alternatives like institutionalization.

State Rep. Elliott Naishtat, D-Austin, released a statement saying the AG should be "embarrassed" by the state's legal posture, and argued that once again the Republican leadership is using fiscal conservatism as an excuse to deny basic services. "Abbott's approach of shirking the state's responsibility to provide access to services for all citizens is not only wrong," Naishtat wrote, "it sends a strong message to individuals with disabilities: you do not deserve the same rights as everyone else. ... The Attorney General's [position] is a blatant attempt to reinstate discrimination as yet another way to avoid the state's obligation to provide services to its most vulnerable members of society. Texans should be embarrassed that one of our statewide elected leaders would stoop so low."

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