The Americans with Disabilities Act applies to most employers and public buildings. State agencies can claim sovereign immunity and avoid an ADA lawsuit entirely. But, states waive that sovereign immunity if the agency accepts federal funding. In the past ten years or so, there have been a surge of ADA lawsuits seeking access to public buildings on behalf of folks with disabilities. Even when Greg Abbott was first appointed to the Texas Supreme Court in 1995, there was such a lawsuit pending against the Texas Supreme Court. The Texas Supreme Court wisely settled that suit when Mr. Abbott was appointed to the court. Wheelchair ramps were quickly installed to the Supreme Court building. Greg Abbott, as most Texans know, is confined to a wheelchair. He sustained a bad back injury some thirty years ago.
In 1995, the new Supreme Court justice even said that people with disabilities must sometimes secure access via lawsuits. Mr. Abbott approved of lawsuits in such circumstances. But, now he sings a different tune.
In some nine lawsuits seeking public access, the Attorney General asserted sovereign immunity as a defense. He lost each time. One former Texas Tech professor simply wanted reflective tape on the stairs in her building. Elaine King Miller was suffering from a degenerative eye disease. The AG’s office fought that one issue regarding state immunity five years before the Fifth Circuit Court of Appeals in New Orleans finally rejected the defense in 2005. The AG lost. Yet, even after that loss, the Attorney General has continued to plead state immunity to public access lawsuits.
In 2003, the new AG inherited an old lawsuit against the state regarding services not provided by the state to persons with mental retardation. Regarding that lawsuit, AG Abbott claimed state immunity. My former employer, Advocacy, Inc. and the Arc of Texas were forced to appeal to the Fifth Circuit. A federal court rejected that claim also, saying in 2003 that there was plenty of precedent for waiver of state immunity. See Austin Chronicle report.
And, now, in his campaign for governor, the Attorney General often points to his disability to show how how he has had to overcome great obstacles.
The Deputy AG defends the use of this meritless defense on the grounds that a lawyer should use all tools available. The AG’s office points to one case that says whether state immunity is waived must be decided on a case by case basis. So, with a wink, the AG’s office persists in asserting a defense it knows will lose simply because one cases suggests case by case review is necessary. This defense has barely enough merit to avoid the "frivolous" label and sanctions from the judge.
But, what this "tool" does do is delay public access lawsuits. While the plaintiff is forced to appeal a preliminary issue that has no relationship to the merits of a case, the person with a disability must wait even longer for necessary accommodations. One appeal to the Fifth Circuit will typically take one to two years. In the meantime, to a professor with failing vision who fears falling own the stairs, that one to two years for a mere preliminary issue must seem like an eternity.
See Dallas Morning News report.