The Dallas Morning News reports that while Attorney General Greg Abbott “has said he supports the Americans with Disabilities Act,” he “has tenaciously battled to block the courthouse door to disabled Texans who sue the state.” The piece notes that Abbott, who is wheelchair-bound after an accident nearly 30 years ago, “benefits from the ADA mandates that guide businesses, builders and cities,” yet “he believes it is unconstitutional to force the state to comply,” arguing “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.”
And as a follow-up to the newspaper article, the Dallas Morning News ran this editorial, which I think is right on point:
Editorial: Abbott needs a more progressive approach on disability lawsuits
Texans should reject the notion that just because Attorney General Greg Abbott uses a wheelchair and has benefited from the Americans With Disabilities Act, he should always side with disabled litigants suing the state.
Nonetheless, this newspaper finds it problematic that Abbott so persistently attempts to stop disability lawsuits in their tracks by claiming that the state is immune from suits brought under the ADA. A Sunday story from The Dallas Morning News’ Christy Hoppe details at least nine cases in which the state asserted “sovereign immunity” in federal court — and lost.
Abbott’s job is to defend the state law in court, so it’s unwise to judge his motivation until additional information is made public. In that light, we call on the attorney general’s office to disclose three things: how many ADA-related state sovereignty cases he’s won, how many he’s lost and how these statistics compare with other states’. Abbott’s office hasn’t released that information to The News’ reporters or responded to editorial board requests.
Until he makes that information public, Abbott makes himself an easy target for critics who accuse him of callousness. Don’t the growing numbers of disabled veterans returning from Iraq and Afghanistan, not to mention other disabled citizens, deserve their day in court?
We wouldn’t expect Abbott to blindly support all disabled plaintiffs any more than we’d expect a woman to support all women or an African-American to support all African-Americans.
What bothers us is that the state continues to assert a losing argument — and bad policy. The basis for Abbott’s sovereign immunity defense is that the 11th Amendment says a state can’t be sued without its consent. Granted. However, courts have established exceptions to that: If an agency accepts federal money, it also accepts federal rules — and that means waiving immunity.
For Abbott the attorney general, we understand that he is the lawyer for the state and has an obligation to defend it. But he also has a responsibility to pursue the broader public interest of Texas residents.
For Abbott the gubernatorial candidate, we’d like him to adopt a more progressive approach on the campaign trail, with assurances that if he’s elected governor, he’ll do more for disabled Texans who believe their civil rights have been violated by the state.
Many states choose not to assert sovereign immunity claims in ADA cases. Private businesses, cities, counties and federal agencies in the state are all subject to the ADA and can’t assert immunity. Shouldn’t the state itself also step up and do the right thing to protect the rights of the disabled?