Utah State Settles ADA Suit

See this article, which begins:

A discrimination lawsuit filed against Utah State University by deaf students who claimed the school was not providing adequate interpreting services has been settled.

Dale Boam, the attorney representing the students, said the lawsuit was settled in April with a promise by the school to have three full-time interpreters and keep deaf students involved and informed of interpretation issues.

"The biggest point of contention -- and it had gone on for years and years -- the students felt the school was not making an effort to provide adequate services," Boam said. "Having three full-time interpreters gives them a much stronger base to work from."

Twelve students filed the lawsuit in May 2006, contending the school was violating the Americans with Disabilities Act because it was not providing them with appropriate services.

The students would request an interpreter for a class and would arrive to find someone not qualified for the task or a stenographer would be there to take notes for the student but not be able to help them participate in discussion, Boam said.

"One of the points of the agreement was a philosophical agreement that these note takers are not an interpreter. They don't provide an equivalent service," he said.

Angie Olsen, Utah State University deaf services coordinator, said the goal is to have one staff interpreter for every two students using interpreter services. Currently, USU has seven deaf students using interpreters and about 25 deaf or partially deaf students using notetakers.

California Supreme Court Responds (Indirectly) to Businesses Complaining About Serial Disability Discrimination Litigation

And they say: Take it to the legislature!

On Thursday, the California Supreme Court issued an opinion in Angelucci v. Century Supper Club. Here's how the court described the issue and its holding:

We granted review in the present case to determine whether, in order to state a claim under Civil Code section 52, subdivision (a), the relevant remedial provision of the Unruh Civil Rights Act (Civ. Code, § 51 et seq; also hereinafter sometimes referred to as the Act), plaintiffs must demonstrate that they affirmatively requested nondiscriminatory treatment and were refused.

As we shall explain, we conclude that the text of the Act does not support defendant’s and the Court of Appeal’s assertion that, in order to recover under the Act, plaintiffs who are discriminated against when they present themselves at a business establishment and pay the price of admission also must demand equal treatment and be refused. Nor do we believe it would be consistent with the policy of the Act, or with our case law, to read such a requirement into the language of the Act. Accordingly, the judgment rendered by the Court of Appeal is reversed.

"Great decision," I hear you saying, "but what does this have to do with disability law?" Well, flip to Part III of the court's decision, and you read:

The trial court’s and the Court of Appeal’s interpretation of section 52(a) reflects in part defendant’s assertion that Angelucci and the other men involved in the present case are professional plaintiffs who “shake down” business entities on the basis of assertedly technical violations of civil rights laws and similar enactments, and that they and their attorneys engage in this practice simply to make a living — unmotivated by any desire to eliminate discrimination or to redress any actual injury. Defendant claims that plaintiffs made repeated unannounced visits to defendant’s business establishment in order to increase the statutory damages they could seek for multiple violations of the Act, and defendant accuses plaintiffs and their attorneys of being “bounty hunters” who have been involved in numerous similar lawsuits. Defendant also contends that meritless, abusive litigation of this type is proliferating in California and generally results in the extortion of a settlement on the basis of the plaintiff’s unsupported factual allegations.

[Here, the court dropped a footnote that referred to the ADA serial litigation issue: "Some writers have argued that compliance with the ADA remains elusive, justifying the continued use of the private right of action in spite of occasional abuse. (See Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation (2006) 54 UCLA L.Rev. 1, 15, 21 [“whether a class of litigation unduly burdens the courts necessarily depends on a normative assessment of the importance of that class”].) Other commentators chronicle instances in which a single plaintiff or law firm filed hundreds of ADA claims, some alleging assertedly technical or de minimis variations from applicable accessibility standards, and the authors consider whether such asserted litigation abuse warrants restriction of remedies under the ADA. (See Becker, Private Enforcement of the Americans with Disabilities Act via Serial Litigation: Abusive or Commendable? (2006) 17 Hastings Women’s L.J. 93, 97-99, 113 [describing assertedly abusive ADA litigation in Pennsylvania, Florida, and California and suggesting adoption of “safe harbor” provision in the ADA to protect businesses that undertake good faith efforts to make premises accessible]; McCabe, California Disability Anti-Discrimination Law: Lighthouse in the Storm, or Hunt for Buried Treasure? (2005) 36 McGeorge L.Rev. 661, 679-681, 686-689 [noting the problem and describing the debate]; see also Milani, Go Ahead, Make My 90 Days: Should Plaintiffs Be Required to Provide Notice to Defendants Before Filing Suit under Title III of the Americans with Disabilities Act? (2001) 2001 Wisc. L.Rev. 107, 185 [arguing that title III of the ADA already incorporates a notice provision from another statute].)"]

Although we share to some degree the concerns voiced by the trial court and the appellate court below and by defendant and its amici curiae regarding the potential for abusive litigation being brought under the Act, these concerns do not supply a justification for our inserting additional elements of proof into the cause of action defined by the statute. It is for the Legislature (or the People through the initiative process) to determine whether to alter the statutory elements of proof to afford business establishments protection against abusive private legal actions and settlement tactics. It is for the Legislature, too, to consider whether limitations on the current statutory private cause of action might unduly weaken enforcement of the Act or place unwarranted barriers in the way of those persons who suffer discrimination and whose interests were intended to be served by the Act.

Eighth Circuit Adds to Circuit Split on Reassignment

Today, in Huber v. Wal-Mart Stores, the Eighth Circuit ruled that the ADA requires that an employee with a disability be reassigned to a vacant position as an accommodation only if the employee is the most qualified applicant for that position. This decision adds to a longstanding circuit split on the question.

In my view, the Eighth Circuit got it wrong. The ADA explicitly lists reassignment to a vacant position as a possible accommodation. If the Eighth Circuit is right, however, Congress accomplished absolutely nothing by adding the language about reassignment. Under the Eighth Circuit's interpretation, the employer is required to reassign an employee only if it would have reassigned her anyway, in the absence of the ADA. But Congress clearly meant to accomplish more than that, and the Supreme Court in US Airways v. Barnett seemed to recognize the point.

Ninth Circuit: Prior Notice Not Necessary to Get Attorneys' Fees in Title III Case

Earlier this week, in an unpublished memorandum in Doran v. Del Taco, Inc., the Ninth Circuit issued yet another good decision on attorneys' fees in Title III cases. (See earlier discussion here.) The district court had denied thet plaintiff attorneys' fees, even though he had prevailed, because he had not given the defendant restaurant notice and an opportunity to cure the accessibility problems without litigation. The Ninth Circuit reversed. It held that the district court abused its discretion when it "denied fees by subjecting Doran to a [notice] requirement not found in the ADA or the case law."

En Banc Third Circuit: Can't Enforce IDEA Through Section 1983

Yesterday, the en banc Third Circuit unanimously ruled, in A.W. v. Jersey City Public Schools, that the Individuals with Disabilities Education act cannot be enforced through 42 U.S.C. 1983. This is an important decision, because it means that kids and parents can't get money damages for violation of the IDEA, and it makes it nigh-impossible to maintain class-based claims for violation of the IDEA. The court's decision overrules its own prior precedent, and is inconsistent with decisions of a number of other circuits. (The court also took a bit of a leap in concluding that it had appellate jurisdiction to decide the issue in the first place.) Oh yeah, and the court concludes with a ruling, that also creates a circuit split, that Section 504 of the Rehabilitation Act cannot be enforced through Section 1983 either. All told, a significant and problematic decision.

Samaha on the Social Model

New on SSRN: Adam Samaha, What Good is the Social Model of Disability? (U. Chicago L. Rev., forthcoming). The abstract:

A social model of disability relates a person's disadvantage to the combination of personal traits and social setting. The model appears to have had a profound impact on academics, politics, and law since the 1970s. Scholars have debated the model's force but its limitations are more severe than have been recognized. This Article claims that the model, like all social construction accounts, has essentially no policy implications. Its impact depends on normative commitments developed by some other logic, such as membership in the disability rights movement or adherence to versions of libertarian, utilitarian, or egalitarian theory that are triggered by the model's causation story. At the same time, a normative framework within which the social model is relevant will suggest not only policy goals but also an institutional design. These points are illustrated by recent controversies involving genetic screening technology, cochlear implants, and sign language communities. Contrary to impressions left in the law literature, the social model has nothing to say about the proper response to such developments, although the model might have a mediated influence on our sense of the best decisionmakers.

This is a very good paper, and I think it will be an important paper. Nevertheless, I think this whole "nothing to say" business is quite a bit overstated -- and the paper itself seems to acknowledge the point. Some social-model scholars might think that the causation story (that disability is caused by an interaction between physical/mental traits and the environment) itself answers all the key normative questions about disability policy -- and even more might write things that might be interpreted that way -- but I think the overwhelming majority of social-model scholars understand that our broader normative views ought to influence how we respond to that causation story. Most social-model scholars start with liberal-to-left egalitarian views, as well as an affiliation with the disability rights movement, and those normative commitments obviously have a great deal to do with what they think are the policy implications of the social model. I doubt anyone would deny that. I think a lot of social-model scholars use the term "social model" as a shorthand description for both the causation story and these normative commitments. Read that way, the social model obviously has quite a bit to say about disability policy, and I don't think Samaha denies that.

Moreover, the social-model causation story itself has something to say about disability policy, because it helps to expand our understanding of the possible policy responses to disability. If you think of disability as a medical condition, inherent in the person with a disability, then your only possible responses are some combination of cure and charity. What the social-model causation story said was that there's another set of options -- alter the aspects of the environment that make certain physical and mental traits disabling. Obviously, which environmental alterations we make (and whether we want to make them at all) depends on some deeper normative commitments, and for some impairments there is no conceivable set of environmental alterations that can remove the disabling effect, but the point of the social-model causation story is that the option is there far more often than people think. The social model was speaking to policymakers who believed that people with disabilities were unfortunates who were appropriate targets of largesse and saying that charity and cure isn't the only answer. And I think it's been quite effective in that regard. (And Samaha acknowledges the point in the paper.)

So pace Samaha, I think the social model has quite a bit to say. It's not a complete answer to any policy question -- but neither, I'd say, are any of the normative theories Samaha discusses in his paper. Adherents to the social model may overstate its implications, but Samaha overstates its limitations.

Supreme Court: Parents Have Enforceable Rights Under IDEA

Today, the Supreme Court issued its opinion in Winkelman v. Parma City School District. The case presented the question whether parents can proceed in federal court pro se (that is, without a lawyer) to enforce provisions of the Individuals with Disabilities Education Act relating to their child's education. The Court, in a 7-2 decision, held that parents can proceed pro se in federal court. Justice Kennedy wrote the majority opinion, which concluded that the IDEA gives parents exactly the same rights relating to their children's education as it gives to their children. In an opinion concurring in the judgment in part and dissenting in part, Justice Scalia (joined by Justice Thomas) argued that parents have only two classes of enforceable rights under the IDEA: (1) a right to reimbursement if the school district denied a free appropriate public education and the parents sent the child to private school as a result; and (2) certain procedural rights.

It's nice to see the Court rule for the parents in an IDEA case, and the Court's holistic approach to reading the statute will be probably be helpful in future cases.

Ed. Department Releases IDEA Part C Rules

See this article, which begins:

The U.S. Department of Education has released long-awaited proposed regulations for the portion of the federal special education law that focuses on infants and toddlers with disabilities.

Referred to as Part C of the Individuals with Disabilities Education Act, the $436 million early-childhood program was established in 1986 to serve children from infancy to age 2. About 265,000 children nationally, representing about 2 percent of the population of babies and toddlers, were served under Part C, according to data collected by the Education Department in 2002.

Proposed regulations were introduced once before, in 2000, but were withdrawn from consideration in 2002 because, the department said, the special education law was too close to reauthorization for the regulations to be useful.

Among the new changes, according to the department, are clarifications in areas such as confidentiality and the use of insurance to pay for Part C services.

Eleventh Circuit: Mental Retardation is Not a Disability Under the ADA

Is this case a parody? No, it's an outrage. The Eleventh Circuit held, in an unpublished per curiam opinion, that an individual with mental retardation did not have a "disability" as defined by the ADA. Not only that, it held that the district court properly granted summary judgment against him on the "disability" issue. Here's a taste of the court's analysis:

The record shows that Littleton is able to read and comprehend and is able to perform various types of jobs. It is apparent that Littleton is somewhat limited in his ability to learn because of his mental retardation. However, he has pointed to no evidence which would create a genuine issue of material fact regarding whether he was substantially limited in the major life activity of learning because of his mental retardation.

It is unclear whether thinking, communicating and social interaction are “major life activities” under the ADA. We acknowledge that a review of Littleton’s deposition testimony is not inconsistent with his assertion that he sometimes has difficulty thinking or communicating. Even if thinking and communicating are major life activities, however, Littleton has not shown that he is substantially limited in those activities. As Wal-Mart contends, moreover, the fact that Littleton drives a car might be determined to be inconsistent with his assertion that his abilities to think and learn are substantially limited. Additionally, Littleton’s mother and Agee testified that Littleton is capable of being interviewed for a job without any accommodation, is “very verbal,” and would not need a job coach to communicate effectively with other people in the workforce. This bolsters Wal-Mart’s contention that any difficulty Littleton has with communicating does not appear to be a substantial limitation.

We do not doubt that Littleton has certain limitations because of his mental retardation. In order to qualify as “disabled” under the ADA, however, Littleton has the burden of proving that he actually is, is perceived to be, or has a record of being substantially limited as to “major life activities” under the ADA. 42 U.S.C. §§ 12102(2)(A), 12112(a), 12132; see also Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220, 1227 (11th Cir. 1997). Assuming that thinking, communicating and social interaction are “major life activities” under the ADA, we conclude that Littleton has failed to create a genuine issue of material fact that he is substantially limited in those pursuits. Thus he has failed to assert a prima facie case of discrimination under the ADA.