Greg Abbott pushes to block disabled Texans’ lawsuits against state
16 February 2014
AUSTIN — Attorney General Greg Abbott, who has said he supports the Americans with Disabilities Act, has tenaciously battled to block the courthouse door to disabled Texans who sue the state.
In a series of legal cases in his three terms, Abbott’s office has fought a blind pharmacy professor in Amarillo who wanted reflective tape on the stairs to her office; two deaf defendants in Laredo who asked for a qualified sign language interpreter in their courtroom; and a woman with an amputated leg. In that case, the state argued she was not disabled because she had a prosthetic limb.
Abbott, who has used a wheelchair since a tree fell on him while he was jogging and crushed his spine almost 30 years ago, applauds the 1990 federal law. It has helped provide the ramps, wide doors and access that allow him to give speeches and meet with constituents.
While Abbott, the leading Republican contender for governor, benefits from the ADA mandates that guide businesses, builders and cities, he believes it is unconstitutional to force the state to comply. He has argued that his duty is to protect the state’s autonomy and its taxpayers by using all legal tools available to him — including the argument that the state is immune from disability lawsuits brought under the ADA.
“It’s the attorney general’s duty to zealously represent the interests of the state of Texas, and in these cases that meant raising all applicable legal arguments in litigation where Texas was sued in court,” said Abbott spokesman Jerry Strickland.
Abbott’s office has been aggressive on the issue. The state has frequently lost, even before conservative courts such as the Texas Supreme Court. And yet when there has been a trial, it has won several of the cases, with arguments that beat back the charges of discrimination.
Advocates for the disabled say Abbott’s office has worked to deny ADA protections by repeatedly and falsely claiming that impaired Texans don’t have the right to sue the state for discrimination. Abbott declined several requests from The Dallas Morning News to discuss the matter.
It touches on two key elements of Abbott’s campaign to succeed Gov. Rick Perry. He is touting his record of defending conservative legal principles. But Abbott also is highlighting his disability as evidence of his toughness. In campaign speeches and videos, he notes that he has “literally, a spine of steel” as a result of the accident.
And his likely Democratic opponent, Wendy Davis, is already raising questions about his performance as attorney general on issues such as school finance.
In most disability cases, Abbott’s office has claimed sovereign immunity for Texas. Such immunity, granted in the 11th Amendment to the U.S. Constitution, says a state can’t be sued without its consent.
It’s an argument that stops a case dead in its tracks and asks the court to toss the suit. If the state wins, the suit is over before a trial can be held to examine the merits of the case.
On ADA claims, federal appellate courts have established exceptions to a state’s claim of immunity. For instance, if a state agency accepts federal funding, it implicitly accepts federal rules and waives its immunity, the courts have said.
Critics say Abbott has shown himself to be obstinate in claiming sovereign immunity on ADA issues, even though federal courts have shot down the argument numerous times in the past nine years.
“The law is the law is the law,” said James Harrington, director of the Texas Civil Rights Project, a nonprofit group that has fought the state on several sovereign immunity claims in disability cases and won. “And the law is not ambiguous.”
Strickland said sovereign immunity as applied to disability claims is complex, and each case raises distinct legal and fact issues.
He cited a 2006 U.S. Supreme Court case, which exhorted courts to look at ADA cases and sovereign immunity “on a claim-by-claim basis.” That is what the state is doing, he said.
In the past, Abbott has suggested, though, that lawsuits are an appropriate way for the disabled to secure accommodations under the ADA.
When Gov. George W. Bush appointed Abbott to the Texas Supreme Court in 1995, the state quickly settled an ADA lawsuit over making the court building accessible to wheelchairs. Ramps and other renovations were made just before Abbott was sworn in.
At the time, Abbott said it was “ironic” that the Supreme Court, “the gatekeeper of the law,” had to be sued to comply.
“Unfortunately, there are occasions where you do have recalcitrant business owners or entities that do not understand the requirements of the ADA, or even worse, who do understand the requirements of the ADA and refuse to comply despite attempts at negotiations,” Abbott told the Austin American-Statesman at the time.
He added: “And in those circumstances, then a lawsuit is certainly warranted.”
Repeated use of immunity
In at least nine ADA cases identified by The News, the state has claimed sovereign immunity in federal court and lost.
Yet the argument is still raised, as recently as December.
Twin brothers Issai and Noe Garcia were involved in a Laredo bar fight and placed in a diversion program by a state district judge. The brothers are deaf, so the court relied on a deaf education teacher to interpret with sign language during several hearings.
But state law requires a certified interpreter, which the teacher was not. In addition, the judge ordered the brothers into an anger management program, which lacked interpreters.
A lawsuit seeks to require the Webb County district courts to provide qualified interpreters. District courts fall under state jurisdiction, so the attorney general’s office is handling the case. Abbott’s office has asked the federal judge hearing it to dismiss the lawsuit claiming sovereign immunity.
Harrington, the advocate for the disabled whose office is helping represent the brothers, pointed out that if their case were in municipal or county court, there would be no question. Cities and counties don’t have sovereign immunity protection and must follow the ADA.
“But if it gets to district court — the more serious, high-powered courts — they shouldn’t have interpreters. How does that make sense?” Harrington asked.
‘Long, hard road’
For former Texas Tech University Health Sciences professor Elaine King Miller, who was suffering a degenerative eye disease, the question was whether the university would provide her, among other things, reflective tape on the stairway and voice-recognition software for typing on her computer.
It took a five-year legal fight with the state. In 2005, the 5th U.S. Circuit Court of Appeals cleared the way for her to pursue a discrimination suit.
In the often-cited case, the court determined that the university waived its sovereign immunity protection from ADA lawsuits when it accepted federal funding.
“It was a long, hard road to get there,” said Miller’s attorney, Bradley Howard.
Miller’s requests weren’t unreasonable or brought in the name of activism, he said.
“She’s a businesswoman. She’s mainstream. Conservative in many respects. She didn’t make any requests that were out of bounds,” Howard said.
In the end, the state prevailed on the merits of the case. Miller and a co-plaintiff won, though, on a separate issue of gender discrimination when the jury determined Texas Tech paid them less and passed them over for tenure in favor of less qualified men.
Even in state courts, Abbott’s office has tried to block lawsuits from going to trial. In 2004, it argued before the Texas Supreme Court that a woman with one leg could not claim disability discrimination because she wore a prosthesis that remedied her mobility.
The all-Republican court rejected the argument, issuing a unanimous, written opinion just three weeks later. The court usually considers cases for months, even years.
The ruling opened the case to trial, which the state also won on the merits. The jury found that Evelyn Little was frequently passed over for a job as a food service worker in the state prison system on issues not related to her disability.
Deputy Solicitor General Andy Oldham said there are good reasons why the state tries to block lawsuits from going to court, even when it has a strong case. Good lawyers use all the tools at their disposal, he said.
“If a litigant had two valid reasons — sovereign immunity and the meritlessness of the suit — she would always assert both,” Oldham said. “Suggesting that the lawyer should waive the first argument and use only the second is akin to asking a boxer to fight with one hand tied behind his back.”
While those bringing the lawsuits might believe they are only asking for “a reasonable accommodation,” there is usually disagreement on what that entails, he said.
“It’s wrong to suggest that the state is unwilling to make any accommodation just because it refused to do everything that the plaintiff wanted,” Oldham said.
Dennis Borel, executive director of the Coalition of Texans with Disabilities, said that advocates’ frustration stems from Abbott’s office consistently seeking immunity for Texas agencies, regardless of the claim.
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