Disabling the Ada: Essences, Better Angels, and Unprincipled Neutrality Claims

55 Pages Posted: 20 Mar 2003

See all articles by Aviam Soifer

Aviam Soifer

University of Hawaii at Manoa - William S. Richardson School of Law

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Date Written: March 20, 2003

Abstract

The Americans with Disabilities Act (ADA) was to be "a clear and comprehensive prohibition of discrimination on the basis of disability." Yet the Supreme Court continues to deconstruct the ADA, disabling its protections and rendering the statute incoherent. This Article focuses on a major failure of craftsmanship in the Court's constitutional law analysis in its Garrett (2001) decision, and on the Court's only slightly less dubious reasoning in four statutory ADA decisions in 2002. It also analyzes PGA Tour, Inc v. Martin (2001) and related lower court opinions. If Martin successfully plays through a strong headwind, that peculiar decision's contrasting approach underscores the Court's crabbed views of "accommodation," in both the "public" and "reasonable" meanings of the term.

In the course of proclaiming essences of federalism, disability definitions, and market norms, the Justices seem to relish the role of contemporary Platonic Guardians. They also construe the ADA in ways almost the antithesis of the Court's initial interpretations of the 1964 Civil Rights Act. The Article concludes with a proposed alternative approach, much more in keeping with the ADA's guarantee of "full and equal rights" for people discriminated against because of disabilities.

Suggested Citation

Soifer, Aviam, Disabling the Ada: Essences, Better Angels, and Unprincipled Neutrality Claims (March 20, 2003). William and Mary Law Review, Vol. 44, pp. 1285-1338, 2003. Available at SSRN: https://ssrn.com/abstract=389400 or http://dx.doi.org/10.2139/ssrn.389400

Aviam Soifer (Contact Author)

University of Hawaii at Manoa - William S. Richardson School of Law ( email )

2515 Dole St.
Honolulu, HI 96822-2350
United States

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