Under Tennessee v. Lane, the ADA does not apply to states unless the states waive their sovereign immunity and permit the federal cases to proceed in state court. Attorney General Greg Abbott of Texas (coincidentally enough wheelchair-bound himself), has exercised that sovereign immunity in ADA suits, and there is a movement for the legislature to repeal the immunity. I think the voters of a state can rationally decide whether they want to allow the disabled residents of the state to be able to sue the state and its agencies for alleged discrimination against the disabled; it’s a conscious decision whether the value of that access is worth the expense to taxpayers. (Of course, the ADA is poorly drafted enough that the consequences can be silly from time to time, but that’s a different issue.)
But it doesn’t seem sporting in arguing for the change to claim that such a waiver will have “no fiscal impact” on the state, as Dennis Borel and Bruce Todd argue in an Austin American-Statesman op-ed seeking a waiver in Texas. Even one suit would cost the state money that it could spend on disciplining lawyers or speeding up the licensing of doctors wishing to practice in Texas. If there’s no money to be had from state coffers by making suits available, why the need to make suits available? One would have more respect for proponents if they were forthright in telling voters how much in taxpayer dollars they want to spend annually to achieve their goals. And since Texas does have sovereign immunity from the ADA, it is under no obligation to make a full waiver: it could choose to create some rights to suit, but not others, and thus avoid the worst abuses of the Act, a possibility that does not even seem to be under consideration.
Separately in the implausible claims department: a page on the DOJ site, much repeated elsewhere, claims that there have been only 650 ADA suits in five years. Given that there are filing mills that come close to hitting that total by themselves, this seems extraordinarily unlikely.
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Ted, is it possible that the 650 suits figure refers to suits filed by the DOJ?
I had the interesting experience of working with a DOJ lawyer – Hi Janine! – regarding a stubborn gym owner who blew the DOJ off for five years or so.
Ted, googling shows that another site claims that there were only 650 ADA suits in the first five years of the law. I still don’t know whether that’s true, but that’s a lot more plausible.
All the other sites look like they copied this piece of information and dropped that qualification.