When President George H.W. Bush signed the historic Americans with Disabilities Act 30 years ago, he proudly declared, “Let the shameful wall of exclusion finally come tumbling down.”
In a recent decision, the Supreme Court tossed another brick on the wall.
The ADA was enacted to level the playing field for people with disabilities and promote their full inclusion in society. The law has resulted in access to shopping malls, restaurants, movie theaters, and sports arenas – places to which, in this time of COVID-19, we all are yearning to return. The ADA has increased educational opportunities and support services for many children and adults with disabilities who live at home or with family members with disabilities. The ADA also has provided accommodations in the workplace, with little if any financial impact on the employer.
The Supreme Court’s ruling in St. James School v. Biel, one of two consolidated discrimination cases decided on July 8, 2020, abandons people with disabilities under the guise of protecting religious freedom. In this case, the Court held that any person with a disability who works for any religious organization, in basically any capacity, can be fired just because they have a disability. That is precisely the type of discrimination the ADA was intended to eradicate.
Ms. Biel wanted an adjustment to her work schedule so she could get treatment for breast cancer. She taught secular subjects at a Catholic elementary School where she, like other staff, were expected to join their students in religious services. Yet if Ms. Biel had taught the same subjects at any other private or public school in the nation, she most likely would have been allowed to get treatment as an accommodation and kept her job. Instead, the church school fired her.
Finding a job is never easy for a person with a disability. Most jobs they can find, like teaching, are not particularly lucrative. At least 26 percent of the population has a disability, but only 19.3 percent are employed, compared to 66.3 percent of people without disabilities, according to the February 2020 report of the US Bureau of Labor Statistics.
You may think that the Court’s decision will not affect many people – just those few teachers who work in religious schools. But you will be wrong. The Court’s holding applies to anyone who works in most any capacity for any religious organization. Although the ADA permits religious organizations to consider religion when making employment decisions and to require employees to conform to the entity’s “religious tenets,” nowhere in the law does it say religious institutions are free to strip their employees of civil rights protections.
Prior to this decision, all employees of religious organizations were protected from discrimination, unless the employee engaged in a “ministerial function.” Now, the hundreds of thousands of teachers, nurses, accountants, social workers, in-house lawyers, camp counselors, and others who work for religious institutions are at risk. Churches and all other religious organizations are free to discriminate against their employees on the basis of disability, as well as race, age, sex, or any other protected trait “for reasons having nothing to do with religion.” As Justice Sotomayor wrote in her dissent, joined by Justice Ginsberg, “This sweeping result is profoundly unfair…The in¬herent injustice in the Court’s conclusion will be impossible to ignore for long, particularly in a pluralistic society like ours.”
To add salt to the wound, this is hardly the time for the Court to cut back on ADA protections. At least 50 percent of people who have been killed recently by police have a disability; one in five people in our nation’s prisons have a mental disability, and the impact of COVID-19 on people with disabilities has been devastating. Scott Landes, a sociology professor at Syracuse University, has found that people with disabilities are “four times more likely…to actually contract COVID-19 than the general population…and about two times more likely to die from it.”
Other scholars will debate the constitutional implications of this case. But as we celebrate the 30th Anniversary of the ADA today on July 26, 2020, we should be wary of a Supreme Court that allows religious institutions to be shielded from compliance with our civil rights laws. Upon signing the ADA, President Bush called on Americans to “remove the physical barriers we have created and the social barriers that we have accepted. For ours will never be a truly prosperous nation until all within it prosper.” The Supreme Court just slammed the door shut on people with disabilities, including those who wish to follow their faith and teach in religious schools. That sounds less like the Court’s upholding of religious freedom and more like a free pass for religious institutions to discriminate.
Arlene S. Kanter is the Laura J. and L. Douglas Meredith Professor of Teaching Excellence and Professor of Law at Syracuse University College of Law, where she is the founder and director of the Disability Law and Policy Program and Director of International Programs.
Suggested citation: Arlene S. Kanter, Turning Their Back on People with Disabilities in the Name of Religious Freedom, JURIST – Academic Commentary, July 26, 2020, https://www.jurist.org/commentary/2020/07/arlene-kanter-ada30-st-james-v-biel/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org
