As Virginia’s Attorney General Bob McDonnell Supported Turning Back the Clock on the Civil Rights of Persons with Disabilities

In 2007 then-Attorney General McDonnell Organized a States’ Brief Asking Supreme Court to Bar Lawsuits Against States for Violations of the Americans with Disabilities Act Rights in Case Involving Rights of Persons with Disabilities in Higher Education. VAYD Disabilities Caucus wants to know: What does Bob McDonnell have against young Virginians with Disabilities?

Over the course of this campaign, we learned a lot about Bob McDonnell’s troubling 1989 master’s thesis at what is now known as Regent University and his extremely radical views on the right to privacy, the role of working women in society, and other issues. This came on the heels of the revelation that as a State Delegate in 2002, McDonnell introduced legislation HR 158 advocating reinstituting “American Citizens Handbook” – a book that advocated eugenics – in Virginia’s public schools educational curriculum. Showing just how outmoded the American Citizens Handbook was, 2002 was the very same year that Governor Mark Warner issued a formal apology for the involuntary eugenic sterilization of 8,000 Virginians – many persons with disabilities – from the 1920s until the 1970s. If that wasn’t ample reason for concern about McDonnell’s misplaced priorities and lack of regard for discriminated against constituencies, yet another troubling revelation has now come to light.

The latest development involves Bob McDonnell’s authorship and submission of an amicus brief to the US Supreme Court trying to undermine the civil rights of persons with disabilities experiencing discrimination by state governments – including state universities! This wasn’t in 1989 when he was a master’s student, or even in 2002 when he was a state delegate, but only two and a half-years ago in his official capacity as Attorney General! On Feb 5, 2007 then-Attorney General Bob McDonnell submitted a brief in the name of Virginia and 13 other states (in his name) supporting Puerto Rico's petition for certiorari to the US Supreme Court in the Title II Americas with Disabilities Act/ Higher Education case University of Puerto Rico v. Toledo. McDonnell’s Virginia brief urged that the court invalidate ALL lawsuits for money damages against states and state entities under Title II of the ADA unless the states are found to have explicitly violated the constitution – an extremely high standard. McDonnell wrote:

[T]he States, like the University of Puerto Rico, dispute whether Congress may abrogate sovereign immunity for ADA damages claims that do not involve constitutional violations. Put another way, if state officials violate the law, but do not violate the Constitution, the State should not be exposed to monetary damages.

McDonnell’s brief clearly asks the court to include cases regarding disability discrimination in higher education among the “broad classes of claims that do not involve constitutional violations.” It is disturbing McDonnell authored a brief that explicitly would have undermined crucial safeguards for persons with disabilities under Title II of the ADA – particularly in a case involving access to higher education – an issue of such importance to young persons with disabilities, including disabled veterans. The press should ask and the public is entitled to know: which other rights of persons with disabilities does Bob McDonnell feel are in the “broad classes of claims” not protected by the Constitution:

Equal Access to Public Education : Does Bob McDonnell feel that it is a violation of the constitution when the state education system violates the ADA by not making schoolhouses accessible (a problem which persists in many school districts such as Richmond and Charlottesville)?

Community Integration : Does McDonnell believe the constitution ensures the right of people with disabilities to get long-term Medicaid services and supports in the community rather than nursing homes?

Emergency Shelters : A frequent problem in emergencies is the failure to provide accessible emergency shelters that meet the needs of persons with disabilities so that they have equal access to safe haven . Does McDonnell believe the constitution ensures the right of people with disabilities to shelter that can accommodate their disability needs?

Medical Services at State-Run Hospitals : Often, hospitals aren’t designed for those who rely upon wheelchairs to get around, fail to offer sign-language interpreters for the deaf, or brailled informational materials for the blind. Does Bob McDonnell believe it is a constitutional violation that when hospitals at state universities (such as VCU and UVA) fail to meet their needs?

McDonnell’s brief went even further. It requested clarification of the significance of legislative history and the meaning of a pattern of constitutional violations both issues that were addressed positively and clearly in the landmark Supreme Court case, Tennessee v. Lane (2004), in which the Supreme Court upheld the fundamental right of access to the courts for people with disabilities. McDonnell also complained that, “Under this Court’s [the Supreme Court’s] current jurisprudence, a constitutional violation by a few States can cause all States to lose the immunity.” Since the Bush administration sided with disability rights advocates in the Toledo case and Tennessee v Lane, this puts Bob McDonnell’s views far to the right of the very conservative Bush Administration Department of Justice!

Fortunately, the Supreme Court rejected McDonnell’s brief and declined to hear University of Puerto Rico v, Toledo, allowing the pro-disability rights decision by the First Circuit Court of Appeals to stand. Yet, this positive outcome should not obscure the disconcerting reality that McDonnell’s brief was submitted to the Supreme Court in effort to reverse a pro-disability rights decision in a recent Virginia case. Just a year before, the very conservative 4th Circuit had already rejected Virginia’s claim of state sovereign immunity in a case involving reasonable accommodations for a law student with disabilities, Carin Constantine, who suffered from an autoimmune condition and debilitating migranes at George Mason University Law School. In Carin Manders Constantine v Rectors and Visitors of George Mason University (2005), Judge Dennis Shedd, a staunch conservative, appointed by President George W Bush wrote a unanimous decision upholding Constantine’s right to have her day in court to hold GMU’s Law School accountable for complying with Title II of the ADA. Several other federal courts have issued similar decisions in higher education cases. See the Washington Post article about this case and a story in the George Mason legal newspaper, Docket .

That Bob McDonnell could not accept this as the final word on the matter and instead sought to weaken the constitutional rights and access to the courts for persons with disabilities who’ve experienced discrimination by the states raises serious questions about McDonnell's commitment to equal justice for all, and the rights of discriminated against groups. In view of this record and his apparent endorsement of eugenics, Bob McDonnell has raised serious concerns that he does not consider the rights of Virginians with Disabilities to be a priority.

Virginians with Disabilities have a right to know why, as Attorney General he asked the highest court in the land to rule against our civil rights. Since he’s done so little to advance our community’s interests and so much to set them back, the burden of proof now falls on Bob McDonnell to explain why young people with disabilities should trust him to promote our opportunities as the chief executive of this commonwealth!