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Greg Abbott Loves and Hates the Americans with Disabilities Act

by: Chaille Jolink

Tue Feb 18, 2014 at 01:13 PM CST

Greg Abbott, the Republican favorite for Governor and current Texas Attorney General has a long history of challenging the rights of the disabled in court. Abbott, who uses a wheelchair to get around, told the Houston Chronicle when he was first elected Attorney General that:

"There's no person who personally is more appreciative of the ADA than myself," Abbott said in a telephone interview. "I'm in a wheelchair myself, and I need to get into more government buildings than anybody as I crisscross the state." - Greg Abbott

Yet strangely he sees fit to vehemently defend the state's ability to not have to enforce the ADA. In fact Texas's own Supreme Court building did not have to comply with the ADA, until of course Abbott was appointed to the Supreme Court in 1995.

According to the Dallas Morning News in an article published last Saturday:

"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."

This was one of the only times the state has settled a claim regarding enforcement of the ADA and since Abbott was elected Attorney General in 2002, he has a long record of fighting tooth and nail ensuring Texas doesn't spend any money on the equal protection of its most vulnerable citizens. (He's just spending the money on court battles defending the state's noncompliance instead).

Click below the jump to read more about the specific cases Abbott has fought to keep Texas from enforcing the ADA.  

According to the DMN Abbott acting as Attorney General plead the 11th Amendment in most of these cases, citing that the State is impervious to lawsuits, and essentially cannot be sued without express exceptions that the state gives itself.

The Dallas Morning News published a long list of previous court grievances regarding folks with disabilities suing the State of Texas:

"Some cases during Greg Abbott's tenure as attorney general, his office has fought lawsuits that disabled people have brought against state agencies. In numerous instances, the attorney general has made sovereign immunity claims - that states are shielded from these suits under the 11th Amendment. The state has lost on that argument repeatedly but has continued to push such claims.

A sampling of cases:

McCarthy vs. Hawkins

Details: In September 2002, the state was sued on behalf of 25,000 disabled Texans stuck on years-long waiting lists to obtain community-based services. The suit contended the state was violating the Americans with Disabilities Act by failing to provide appropriate accommodations.

Abbott's argument: The state is immune from lawsuits brought under the ADA.

Ruling: In September 2004, the 5th U.S. Circuit Court of Appeals said state officials are liable and do not have immunity from lawsuits brought under the ADA. Two years later, the state settled the suit with a pledge to greatly increase Medicaid-funded services in the community over the next six years.
Miller vs. Texas Tech University Health Sciences Center

Details: As part of a larger case, a legally blind Texas Tech professor accused the university in 2000 of failing to accommodate her by, among other issues, denying her voice-recognition software for her computer and declining to place reflective tape on the stairs leading to her office.

Abbott's argument: The state is immune from such lawsuits.

Ruling: The issue of sovereign immunity from the disability law went to the 5th Circuit, which ruled against the state in August 2005. "If the involved state agency or department accepts federal financial assistance, it waives" sovereign immunity, the court said. At the subsequent trial, a jury found the university discriminated against the professor based on her gender but not her disability.
Meyers ex rel. Benzing vs. Texas

Details: Disabled drivers filed a class action suit in 1997 arguing that Texas was violating the ADA by charging fees for handicapped parking placards.

Abbott's argument: A state judge rejected sovereign immunity arguments, and the state sought to have the case moved to federal courts, making a sovereign immunity claim again.

Ruling: The 5th Circuit called the state's argument "novel" but pointed to a U.S. Supreme Court decision that found once a state asks for and is granted federal court jurisdiction, it has waived sovereign immunity. In 2009, the state settled the lawsuit, agreeing to pay $24 million, including refunds for the placard fees.
Espinoza vs. Texas Department of Public Safety

Details: A woman who used crutches or a motorized scooter after contracting rheumatoid arthritis as a child went to renew her driver's license in 2000, after 17 years of driving without incident. Because of her mobility issues, DPS declared her a potentially dangerous driver and required that she would have to take the driving test again.

Abbott's argument: Sovereign immunity should prevent a suit.

Ruling: The 5th Circuit denied immunity in August 2005. The case proceeded to trial, and the state won.
Durrenberger vs. Texas Department of Criminal Justice

Details: Jeremy Durrenberger, whose hearing is impaired, tried repeatedly to visit his inmate friend in Hughes prison unit. The visiting room had glass dividers, and Durrenberger was supposed to use a phone system to communicate with his friend. He asked for a voice amplifier to be installed on the phone used by visitors so he could hear. The department said it could not afford the devices, estimated to cost between $15 and $100 each, throughout the prison system.

Abbott's argument: The case should be dismissed based on sovereign immunity.

Ruling: A federal judge granted Durrenberger summary judgment in December 2010, with further hearings ordered on lawyers' fees and damages.
Little vs. Texas Department of Criminal Justice

Details: Evelyn Little, who had her left leg amputated at the knee, used a prosthetic and was able to complete long work shifts. She had worked as a food manager at nationally recognized restaurants. She applied for state jobs as a food manager on more than 14 occasions between 1995 and 1999 but was never hired. She sued for employment discrimination.

Abbott's argument: Little was not disabled because the prosthesis solved her disability.

Ruling: The Texas Supreme Court found in October 2004 that she was disabled and ordered a trial on the merits. A jury found that issues other than Little's disability led to her not being hired."

Elliott Naishtat, during the time of the lawsuit with 25,000 disabled Texans suing the state for basic access to services, wrote an op-ed published in many statewide newspapers.

Here Naishtat states:

"What is perplexing is that the attorney general is not challenging the part of the ADA that bars discrimination by private interests. In other words, Abbott agrees that private entities should continue to be required by law to provide access to individuals with disabilities, but public entities, including state and local governments, should not. Since when are civil rights protections important in relation to the private sector, but not the public sector? Abbott's response: The office of the attorney general is trying to protect the state's interests, namely, its limited financial resources. Once again, the issue is state money, or the lack thereof."

Abbott needs to set the record straight and decide once and for all if he is truly for protecting the rights of the disabled, or simply pandering to state and party interests.

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Do not republish without express written permission.

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