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Volume 2, Number 1
CONGRESS PASSES IMPORTANT CIVIL RIGHTS STATUTE
State agencies that violate major civil rights laws can now - or once again - be held liable in federal court for damages. The Civil Rights Remedy Equalization Act, a provision authored by Senator Alan Cranston (D-CA) and passed by the Congress in early October as part of the Rehabilitation Reauthorization bill, overturns the Supreme Court's June 1986 decision in Atascadero State Hospital v. Scanlon, 53 U.S.L.W. 4985. The Court's opinion created a large loophole in civil rights protection by ruling that the States' Eleventh Amendment immunity to suit in federal court had not been lifted by Section 504 of the Rehabilitation Act of 1973.
Section 504 prohibits federal and federally-assisted programs from discriminating against otherwise qualified handicapped persons. Other major civil rights laws - Title VI of the Civil Rights Act of 1964 (race), Title IX of the Education Amendments of 1972 (sex), and the Age Discrimination Act of 1975 - have the same basic structure as Section 504 and could have been construed in the same fashion. Cranston's legislation has removed that possibility and plugged the loophole.
The Atascadero decision surprised many in Congress and in the civil rights community who had interpreted the law as lifting the States' immunity. In each of the civil rights statutes, State agencies receiving federal assistance are included in the category of those covered by the antidiscrimination mandates - and none of the laws contains any suggestion that Congress intended States to be exempted from federal court jurisdiction for violations.
Based on a doctrine that has been evolving over the past several years, the Supreme Court in a 5-4 decision held that Congress can lift the bar of the Eleventh Amendment only through legislation expressly making the States answerable in federal court.
The provision faced an 11th hour attack by the National Governors' Association, which tried to get House members of the conference committee to object to it. However, a strong bipartisan coalition of Senators Weicker, Simon, Stafford, Hatch, and Thurmond stuck by the measure and, with help from Congressman Gus Hawkins, succeeded in having it included in the final version of the legislation which passed the House on October 2 and the Senate the next day.
Arlene Mayerson, Directing Attorney, Disability Rights Education and Defense Fund, stated that the passage of the bill was "extremely important because states are one of the primary recipients of federal monies, and because of the carryover effect the decision could have had on the other civil rights laws. Disabled persons, once again, have redress against state agencies found to have discriminated."
  
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