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Anita Silvers and Michael Ashley Stein From Plessy (1896) and Goesart (1948) to Cleburne (1985) and Garrett (2001) A Chill Wind from the Past Blows Equal Protection Away What are the standards of care and conduct, of risk and liability , to which [the disabled] are held and to which others are held in respect to them? Are the standards the same for them as for the [nondisabled]? —Jacobus tenBroek, 1967 In its 1948 decision in Goesart v. Cleary,1 the United States Supreme Court upheld the constitutionality of a Michigan statute that prohibited women from working as bartenders, unless they were the spouse or daughter of the establishment’s male owner. While the Court acknowledged that the preceding years had wrought vast social and legal changes in women’s status and roles, it nonetheless held that Michigan had acted “reasonably” in excluding women lacking on-site male patronage from bartending jobs. Because the statute had a “rational basis,” the Court held, it did not violate the Fourteenth Amendment’s guarantee of equal protection of the laws. In the Court’s view, the equal protection clause did not require the states to accord equal treatment to members of different groups whose situations were “different in fact or opinion.”2 No matter how skilled a woman might be at pouring drinks or tallying sums, to the Court, her situation was self-evidently different from a man’s. For the justices, the mere thought of a female serving drinks evoked the image of a “sprightly and ribald” Shakespearean alewife. So, they believed, the mere presence of a female dispensing intoxicating beverages behind the bar could not help but trigger the very “moral and social problems” that the state intended to prevent by excluding women from bartending jobs in the ‹rst place. Because, in the Court’s view, the distinction between men and women 221 drawn by the Michigan legislature was not wholly lacking in reason, the disadvantage it imposed on women did not violate the Constitution. However exclusionary the law might be, equal protection considerations could not upend it, the Court concluded, because the state had a “rational interest ” both in protecting women from the limitations of their ability to maintain the peace and in protecting the public from the raucous disruptions that would no doubt be provoked by their presence.3 More than ‹fty years later, in University of Alabama v. Garrett,4 the Supreme Court, in eerily similar fashion, upheld the constitutionality of a state university’s demotion of a nursing supervisor to a poorer paying job because she had undergone treatment for breast cancer. Patricia Garrett had sued the University of Alabama, an arm of the state, under Title I of the Americans with Disabilities Act. Title I prohibits disability discrimination in employment, and it provides a private right of action for injunctive and monetary relief for a person who claims that his or her rights under the ADA have been violated by a covered employer. The University’s Board of Trustees responded to Garrett’s suit by claiming that, as a sovereign state, it was accorded immunity from private suits for money damages by the Eleventh Amendment to the United States Constitution. The Supreme Court agreed. It held, by a now familiar ‹ve-to-four margin ,5 that in providing a disabled individual with a private ADA claim for money damages to remedy disability discrimination in state employment, Congress had accorded disabled persons rights beyond those to which they were constitutionally entitled under Section 1 of the Fourteenth Amendment ’s equal protection clause.6 With a logic chillingly similar to that applied in Goesart almost half a century earlier, the Garrett majority held that, so long as a state had some “rational basis” for treating persons with disabilities less favorably that members of the nondisabled public, its action would not deprive the disabled of the equal protection of the laws. Af‹rming its earlier decision in City of Cleburne v. Cleburne Living Center ,7 the Garrett majority held that disability does not constitute a “suspect classi‹cation” for equal protection purposes. Accordingly, states may pass legislation or take other action disadvantaging persons with disabilities without running afoul of the equal protection clause, so long as they have a “rational basis” for doing so. By prohibiting “rational” discrimination against persons with disabilities, and by requiring state employers to accommodate an employee’s disability, the ADA provided remedies that were, in the Court’s language, “incongruent and disproportional” to disabled people...

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