Academic journal article Southern Law Journal

Congress Proposes, the Supreme Court Disposes: Is There Room for Courts to Subvert the Will of Congress after the Adaa Act Broadens the Definition of Disability?

Academic journal article Southern Law Journal

Congress Proposes, the Supreme Court Disposes: Is There Room for Courts to Subvert the Will of Congress after the Adaa Act Broadens the Definition of Disability?

Article excerpt


Congress passed the Americans with Disabilities Act of 1990 (ADA) with broad bipartisan support amid cheers from disability rights groups. As time passed, the Supreme Court handed down several decisions that left those same groups largely dissatisfied.1 To right this perceived wrong, the Americans with Disabilities Act Amendments Act of 2008 (AD AAA)2 was signed by President George W. Bush on September 25, 2008, with an effective date of January 1, 2009. Cases applying the AD AAA are now appearing in lower courts, and it will be interesting to see if all of the federal courts of appeal and the Supreme Court enthusiastically embrace Congress' intent within the AD AAA.

This paper presents a historical framework of the continuing tension between legislative intent and the Supreme Court's interpretation in this area of the law. It will examine Congress' latest attempt to restore protection for persons with disabilities by passage of the AD AAA and the likelihood that its intent will be carried out by the Courts.


On June 18, 2001, President Bush signed Executive Order No. 13217, that directed six federal agencies to look for ways to improve the availability of community-based services for qualified individuals with disabilities.3 A report from those agencies was presented to the President on December 21, 200 1.4 Before listing any concrete actions to be taken, the Employment section states an underlying theme of the disability laws: "If people with disabilities are to fully access and be a part of their communities, they must have the opportunity to work. Work is so essential that without it people with disabilities often face isolation and segregation from the very communities in which they wish to participate."5 This position has been a primary idea directing federal policy for decades as demonstrated by Appendix A to the report, Summary of Disability-Related Legislative Initiatives, a nonexhaustive list of some sixty-six federal statutes touching on this area beginning with the National Vocational Rehabilitation Act of 1920.6

III. The Rehabilitation Act of 1973

A milestone was reached in 1973 with the passage of the Rehabilitation Act of 1973 (RA), the predecessor to the ADA. The RA's scope was limited when it came to requiring action from the private sector of the economy. Section 504 of the RA, called Nondiscrimination Under Federal Grants states: "No otherwise qualified handicapped individual in the United States, as defined in section 7(6), shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."1

The RA was amended in 1974, eliminating most uses of the word handicapped, and replacing them with individual with a disability. That term is virtually identical in the RA and ADA. According to the RA:

Individual with a disability . . . means . . . any person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment.8


As mentioned above, a major drawback of the RA was its limited scope. Section 504 only applied to programs and activities receiving federal financial assistance. The scope was further circumscribed by the Supreme Court's decision in Grove City College v. Belt, which limited the reach to only those parts of a recipient's operation which directly benefitted from that federal assistance, and not the entire organization. Grove City did not specifically involve the RA, rather it dealt with Title IX of the Education Amendments of 1973, which contained the same jurisdictional language as the RA (prohibiting sex discrimination in "any education program or activity receiving Federal financial assistance"). …

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