December 13, 2003
Greg Abbott vs. himself

Attorney General Greg Abbott, who once lauded a successful lawsuit that forced the State Supreme Court building to comply with the Americans With Disabilities Act, is now suing to overturn Title II, which is the section of the ADA that prohibits public entities from discriminating against people with disabilities.

The case stems from a class-action lawsuit filed by two advocacy groups over waiting lists for services but could ultimately affect other areas, including government services and the requirement that public buildings be accessible.

Ted Cruz, solicitor general for the attorney general's office, said Abbott is trying to protect the state's interests and limited economic resources. Abbott's office is not challenging the part of the act that bars discrimination by private entities.

"Our argument is that Congress lacks the authority to dictate how states operate," Cruz said. "The attorney general has a constitutional duty to defend the State of Texas. That's the oath General Abbott took."


The disabilities act provides comprehensive civil rights protections to individuals with disabilities in the areas of employment, public accommodations, government services and tele- communications.

Today, disputes over all parts of the act are being played out all over the country, with a number of states arguing that Title II is unconstitutional. The U.S. Supreme Court will hear arguments on the issue next year in the case of Tennessee v. Lane.

Texas' debate began in September 2002, when Arc of Texas and Advocacy Inc. filed a class action against the state. Their complaint: Texas did not provide community-based services to enough people with mental retardation and other developmental disabilities. More than 25,000 people have been waiting years for services such as respite, rehabilitation and group home care.

"We're talking about basic needs," said Mike Bright, executive director of the Arc of Texas.

In their lawsuit, the groups ask that the state be forced to expand services for disabled people. No one knows how much that will cost.

"That's the $64,000 question," said Garth Corbett, lawyer for Advocacy Inc.

I can actually understand this from a fiscal viewpoint. I agree with and support the ADA, but it is a large, mostly unfunded mandate, and for sure the states ain't getting any relief on that from the current Capitol Hill gang. That said, I believe the states need to check their priorities if they're unwilling to include equal access for people with disabilites in their budgets.

It's especially egregious for the wheelchair-bound Abbott to be leading the charge. He has some history of for-thee-but-not-for-me here.

Advocates for people with disabilities say they expected more from Abbott, a former state Supreme Court justice who has used a wheelchair since 1984, when a tree fell on him and crushed his spine.

"It's ironic and sad, but I stopped trying to understand people's motivations a long time ago, " said Jennifer McPhail, an organizer with ADAPT of Texas. "It just gives you a headache."

Abbott faced similar criticism during his campaign for the attorney general's post. Detractors pointed out that he championed limits on damages and sharply criticized trial lawyers, even though he had sued and received a tax-free settlement worth more than $10 million after his accident.


In 1995, Abbott lauded the act after the Civil Rights Project settled a lawsuit to make the Texas Supreme Court Building accessible to disabled people. After Abbott's appointment, the building was renovated.

"It is kind of ironic that the Supreme Court Building, the gatekeeper of the law, had to be sued," Abbott told the Austin American-Statesman at that time. "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. And in those circumstances, a lawsuit is certainly warranted."

In 1996, commenting on a Civil Rights Project report that showed that many Texas courthouses were not accessible, Abbott told the Fort Worth Star-Telegram that it was "appalling but not surprising."

In July 1999, Abbott suggested that the Civil Rights Project file suit after he could not gain access to a Houston hotel, Harrington said.

Abbott's spokeswoman, Angela Hale, says the two scenarios are totally different.

"That was a private company," Hale said. "The State of Texas is a public entity with limited resources."

Last I checked, Angela, private companies have limited resources, too, something that Republican politicians are fond of mentioning whenever a law is proposed that would add to their financial burden. One might also point out that the government belongs to and represents all of us, though one might feel some doubt about that latter item given the way things have been lately.

Posted by Charles Kuffner on December 13, 2003 to The great state of Texas | TrackBack

I recently read a very interesting argument about the nature and roles of the two main parties. I had grown up believing that "unfunded mandates" and many other fiscal matters were the purview of the Democrat party. But with recent Republican shenanigans in the Congress, that belief is sorely challenged.

The interesting argument is this: such matters as "unfunded mandates" and massive new Federal programs are not really a matter of a party's principles, but instead a function of which party is in power. The ill-considered drug benefit just passed caps Republican ascendency in the Congress, marking their move into majority party status. According to this idea, these legislative acts show the Republicans to have ensconced themselves in power and to move to cement that control.

In other words, it doesn't matter which party is in power: the nature of Congress is to spend beyond its means, to dictate to the States and the People, and meddle in matters beyond its mastery. Not a very cheering notion but an explanatory one.

Posted by: B. K. Oxley (binkley) on December 13, 2003 10:47 AM

I am the attorney for Advocacy, Inc., that was quoted in the Austin American Stateman article. I want to briefly comment on the quote that is attributed to me regarding the cost of increasing Medicaid waivers(i.e.,The 64 thousand dollar question is how much will waiver services cost?).

To be clear, we are not talking about an unfunded mandate. The context for the quote concerns two groups:those currently living in institutions and those living in the community.

It is our contention, that for those who are already receiving services in state institutions that the costs of providing waivers services at home or in a community setting would cost the same or less than what the state currently spends on providing services in an institutional setting.

And for those severely disabled residents already living in the community, but who currently receive no services, getting waiver services at home may in the long run save the State money. That is, getting needed services that will help keep people at home will (we believe) result in less people needing to being institutionalized later on. In many cases, receiving a modest array of services at an earlier point in time promotes better health and greater independence.

As an aside, persons who are part of this lawsuit but live in the community without services are nonetheless eligilbe for institutional services from the state righ now. In other words, if they were willing to leave home and move to a congregate facility funded by the state, they would be eligible to receive a whole array of services.

So, the context for the 64 thousand dollar comment is not where the money will come from. The money for additional waivers will come from the institutional budget and Medicaid related cost savings. How much additional money will be available for waiver services from these sources is unknown at this point, and that is the $64,000.00 question.

Because the state claims that we cannot sue them, we have not been able to do any discovery. Accordingly, we have not been able to get any state documents or depose any state officials. But when we are able to get this information, we are confident that the record will show that the state's policy of putting waiver applicants on a waiting list for an unspecified period of time violates the ADA. Moreover, it would not be an undue financial burden for the state to provide, at a reasonable pace, waiver services to all those requesting such services.

Posted by: Garth Corbett on December 17, 2003 7:24 PM