Substandard Conditions at Va. School for Deaf, Blind, and Multi-Disabled

See this article. The first few grafs:

The Virginia School for the Deaf, Blind and Multi-Disabled is operating under a provisional state license after nearly 100 violations over the past three years.

From 2001 through February 2004, the Hampton school violated 97 standards outlined for children's residential schools by the Office of Interdepartmental Regulation.The violations -- ranging from unreported student injuries to understaffing -- were contained in a study the Daily Press obtained from the state Department of Education.

This article describes some of the problems:

On-site inspections in November 2003 and again in February found:

• systemic deficiencies with staff development. Staff, for instance, was not trained annually in the use of physical restraints, and many hearing staff members could not communicate with deaf students and staff;
• reports of fight resulting in injuries;
• a male staff member, who was later named in allegations of sexual misconduct with a student, impersonated a student to get another student's address.

As this article notes, folks at the school disagree that there are major problems and say that they are working to address the problems that exist.

A Less Hopeful View of the IDEA Reauthorization

See this fair-and-balanced (really!) editorial in the Wichita Eagle. The upshot: The law has some provisions that might improve educational opportunities, but the new discipline provisions and the continued failure to provide the full federal share of funding are potentially serious problems.

Statistics on Special Education in Israel

See this interesting article from Haaretz. It's full of numbers. Here's the lede:

The number of boys in special education is nearly twice as high as the number of girls, according to data published yesterday by the Central Bureau of Statistics (CBS).

Northwest Airlines Agrees to Conduct Individualized Assessments in Epilepsy, Diabetes Cases

This article (and this one) reports on a settlement into which Northwest Airlines and the EEOC recently entered. The EEOC had claimed that Northwest violated ADA Title I by engaging in a blanket policy of refusing to hire people with epilepsy or diabetes for baggage-handling and aircraft-cleaning positions. Under the agreeement, Northwest commits to engaging in an individualized analysis of the qualifications of applicants with these conditions (something the airline maintains it's been doing all along). Northwest also agrees to pay a total of $510,000 to 28 individuals whose offers of employment were withdrawn after the airline discovered they had seizure disorders.

ADA v. Family Farms?

See this article (and this one) on a new lawsuit challenging Nebraska's "anti-corporate farming law." (The law, which was adopted as an amdendment to the Nebraska Constitution, is reprinted here.) The principal claim is that the law violates the dormant Commerce Clause (the Eighth Circuit recently invalidated a similar South Dakota law on that ground), but there is also an ADA claim. One of the provisions of the law requires that, for a farm to be exempt from the general prohibition on corporate ownership, at least one member of the family who owns the farm must "resid[e] on or [be] actively engaged in the day to day labor and management of the farm or ranch." Plaintiffs, who include two farmers with physical disabilities, challenge that aspect of the law as violating the ADA. FWIW, I'd want to see a lot more about the operation of this law before I thought the ADA claim was plausible.

Tenth Circuit Rules Hostile Environment Claims Are Actionable Under the ADA

Yesterday, in Lanman v. Johnson County, 2004 WL 3017258 (available for free on the web here), the Tenth Circuit expressly ruled that hostile work environment claims may be brought under Title I of the ADA. That ruling is in line with the holdings of the other circuits to have addressed the question. (On the merits, not surprisingly, the court ruled that the plaintiff -- who had alleged that her employer and co-workers regarded her as having a psychiatric impairment -- did not satisfy the ADA's definition of disability.)

Happy Holidays and Blog Hiatus

I'm off with the family for a week-long vacation, so don't expect to see much in the way of posting until New Year's.

Winter 2005 Issue of Disability Studies Quarterly

is now online here. I was particularly interested in the piece about personal assistance policy in the UK. There are also other interesting articles, book reviews, etc.

Disability Discrimination In Canada

The Winnipeg Sun has this article today entitled "Disability Complaints Increase." The first couple of grafs:

Complaints to the Manitoba Human Rights Commission based on physical or mental disabilities have more than doubled during the past decade, according to the organization's annual report. In 1993, the percentage of complaints filed under disability was about 19%, and in 2003 the figure reached more than 40%, executive director Dianna Scarth said yesterday.

Al Hunt on Disability Law and Policy

See today's "Politics and People" column here (you need a subscription) -- or go out and buy a copy of the Journal. Hunt is one of the few mainstream reporters who really "gets" issues of disability rights.

Consent Decree in Pennsylvania Special-Ed Integration Litigation

See this article. The first couple of grafs:

The state Department of Education has settled a federal class-action lawsuit that advocates for the disabled say they hope will result in more disabled students being placed in regular classrooms with the support to help them succeed.

The settlement, filed in federal court in Philadelphia this week, still requires approval by Judge Eduardo Robreno.

Twelve disabled children and their parents and six advocacy organizations are plaintiffs in the suit, which was originally filed in 1994 and certified as class action in 1995.

Under the terms of the settlement, the state Department of Education must introduce policies and practices under which schools will try to find ways to place disabled students in a regular class with the aid of a modified curriculum or other such support.

British Airline Access Opinion

The opinion, about which I posted yesterday, appears here.

Nice

See this article, which begins:

Some school administrators are calling for the removal of Rep.-elect and current Sen. Ed Butcher, R-Winifred, from the Montana Legislature's House Education Committee after he called severely disabled students "vegetables" during a public meeting last week.

Butcher, who characterized his comment as an "unfortunate choice of words," is also being criticized for the comments he made about minority students during the same meeting.

Minn. Secretary of State on Secret Ballots for People with Disabilities

In this column today, Minnesota's (Republican) Secretary of State, Mary Kiffmeyer, made the following remarks:

Perhaps the greatest personal inequality is experienced by voters with disabilities. For many voters with disabilities, voting privately and independently is only a dream. Few of us can know what it's like to be blind and to have to tell someone else aloud how we want to vote and trust that our vote is being cast the way we want. Few of us can know what it's like to be disabled and therefore unable to mark a ballot independently. Few of us can know, either, when we'll be in that situation, temporarily or permanently.

With technological advances that have been made in recent years, old excuses for treating voters with disabilities differently are no longer valid. The interface between most of us and our ballots always will be a simple pen. With new technologies, people with disabilities now can have what effectively amounts to a sophisticated "pen" to mark their ballots privately and independently, too. The new technologies really are quite marvelous — they preserve the standard paper ballot that we all want to keep, and they give everyone privacy, independence and accuracy.

New Suit Over Inaccessible Bus Service in Colorado

This article begins:

An advocacy group for disabled people filed a lawsuit Tuesday against the city of Colorado Springs, alleging the city's new round-trip bus service from Colorado Springs to Denver is not accessible to people in wheelchairs.

The Colorado Cross-Disability Coalition, which has 3,200 members, said in the suit filed in U.S. District Court that most of the buses used by the Front Range Express, or FREX, are not equipped with wheelchair lifts.

"Our members are just angry as blazes," said Kevin Williams, attorney for the coalition. "This is a system that would enable a lot of our members who use wheelchairs to get to and from Denver with the same ease that everyone else using the service does."

The complaint can be found here.

D. Minn. on Stuttering as Disability

New on Westlaw (and for free on the web here): Judge Donovan Frank of the District of Minnesota ruled last week that a plaintiff with a stuttering disorder presented sufficient evidence to overcome summary judgment on the question whether she had an ADA "disability." The court said that the evidence, taken in the light most favorable to the plaintiff, would establish that her severe stuttering disorder substantially limited the major life activity of speaking. The case is Andresen v. Fuddruckers, Inc., 2004 WL 2931346 (D. Minn., Dec. 14, 2004).

Fourth Circuit on Title III "Elevator Exemption"

The Fourth Circuit yesterday issued this opinion in Laird v. Redwood Trust. The plaintiff argued that the defendant -- which operated a restaurant/nightclub with a first floor, second floor, and finished basement, all of which spaces had been renovated since the enactment of the ADA -- violated Title III by failing to provide an elevator. The defendant argued that it came within Title III's elevator exemption, which provides that an elevator need not be installed in "facilities that are less than three stories or have less than 3,000 feet per story." Each of the levels had well over 3,000 square feet: the basement had 6,500, the first floor 6,400, and the second floor 5,100. But the Fourth Circuit held, in a deeply fractured opinion, that the second floor was not a separate "story"; because the second floor had a hole in the middle that looked down on the dance floor of the first floor, the court held that the second floor was simply a "mezzanine" within the same story as the first floor. The court applied the definition of "mezzanine" in the relevant DOJ regulations: "[t]hat portion of a story which is an intermediate floor level placed within the story and having occupiable space above and below its floor."

What's interesting about the opinion is the way the court fractured. Judge Allyson Duncan dissented; she argued that under the majority's approach any floor with a hole in it is a "mezzanine," which could provide a giant loophole for Title III's accessibility requirements. For example, she said, under the majority's reading a floor-to-roof atrium in a 10-floor building would mean that, although the building had 10 floors, 9 of them would be mezzanines and the building would therefore only have one "story." Judge Dennis Shedd, in his concurring opinion, essentially said "nuh-uh" to that, and Judge Duncan called him on it: "Judge Shedd’s conclusion that such floors are separate stories simply because he says they are, offers little comfort to the disabled, and certitude strikes me as an inadequate substitute for analysis."

Wichita Settles Title II Access Suit

So says this article in the Wichita Eagle. The first few grafs:

The city of Wichita this morning unanimously approved a lawsuit settlement that likely will change the way the disabled access city buildings and parks.

Among many steps will be to hire a consultant who will take inventory of city-owned buildings and property to see what needs to be improved, said Jeanne Goodvin, the city's Americans with Disabilities Act coordinator.

Items to be fixed will be prioritized and addressed over several years, she said.

Earlier this year, the Independent Living Resource Center filed a suit listing more than 650 alleged violations of the Americans with Disabilities Act on city property.

NYT on Insurance Coverage for Applied Behavioral Analysis

Today's Times has this interesting article, which shows how insurance companies can circumvent legal mandates to provide particular treatments. Link via Ann Althouse, who has an interesting post about yesterday's Times article on autism (about which article I posted here).

More on Disability and Development

Amartya Sen and James Wolfensohn have this piece today in the Korea Times.

South Carolina Supreme Court Declines to Recognize "Wrongful Life" Doctrine

See this article. Here's the first couple of grafs:

South Carolina children born with disabilities cannot sue doctors for failing to tell their mothers about those conditions before birth, the state’s top court said Monday.

Jennie Willis of Marion County contends she would have legally aborted her now 8-year-old son, Thomas, had she known when she was pregnant that most of his brain was missing, said her lawyer, O. Fayrell Furr Jr. of Myrtle Beach.

The opinion is here.

More British Disability Law

It looks like Britain's Disability Discrimination Act is more effective than the Air Carrier Access Act. See this article from the Guardian. The first couple of grafs:

Travellers with disabilities won a major legal victory today when the court of appeal ruled that both an airline and airport authority are responsible for providing a free wheelchair service.

Budget airline Ryanair had appealed after it was ordered to pay damages to a disabled man charged for using a wheelchair at Stansted airport in Essex.

The BBC also has this story.

Disabled Driver Gets Spot, But Fight Rages

The New York Daily News yesterday ran this article about the MTA's decision to give a bus driver with a disability a parking spot close to his depot. The twist: the spot would not be marked as a spot for people with disabilities; it would be marked with the name of a (nonexistent?) manager at the MTA. The bus driver's Member of Congress, Gary Ackerman, was not pleased:

"They're looking to buy off Mr. Torres with a secret spot," Ackerman said. "Their argument is that he's the only one who needs the spot and they'll accommodate him, but the law doesn't say that. The Americans with Disabilities Act says that you have to provide at least one handicap spot for every 25."

And that's not even Rep. Ackerman's best quote, but this is a family weblog.

National Disability Housing Lawsuit

This press release informs that: "The Washington Lawyers' Committee for Civil Rights and Urban Affairs announced today the filing of a lawsuit against one of the nation's largest residential apartment developers, the Archstone-Smith Trust (NYSE:ASN), alleging discrimination against persons with disabilities. The complaint, filed in federal court in Baltimore, Maryland today, charges Archstone and other defendants with continuous and systematic civil rights violations of people with disabilities in the design and construction of more than 100 apartment complexes in 18 states and the District of Columbia."

The press release says that a copy of the complaint can be found at http://www.fairhousing.cmht.com, but I can't make the link work.

Kibbutzim Say No to People With Disabilities

The article by that title in Maariv is heartbreaking for someone like me who grew up with the idealized Hebrew-school story of the kibbutz. Some highlights (lowlights?):

Although the principal of equality in kibbutzim is not what it used to be since the era of privatization dawned on the socialist communities, it seems a new low has been reached: “Maariv” has found that many kibbutzim have ceased accepting people with disabilities as new members.

Na’amah and Uri lived as members of kibbutzim their entire lives. Thirty years ago, their son Sharon was born with a physical and mental disability. Following constant battles with their kibbutz’s secretary, they decided to form a movement of parents of children with disabilities.

“We came to realize that the kibbutz does not intend to enlist the people with disabilities as new members”, Uri said, adding, “They prepared an agreement that every parent had to sign in order to guarantee the child’s benefits. We objected to the paper since it did not include a guarantee of becoming a kibbutz member”.

According to Uri, “My son is eligible to vote for Knesset elections but cannot do so in members’ meetings”. Na’amah added, “Weak individuals weaken the kibbutz. They told me this explicitly. My son cannot become a member since he is disabled”.

Surprisingly, the National Kibbutz Movement did not even attempt to deny the serious allegations.

According to a senior movement official, “It is true the mentally disabled people can vote for the Knesset, but in a country with 6.5 million the damage can be spread out. Not so in a kibbutz. Just as no family that owns a company would accept the appointment of retarded individuals, and give him the right to vote”.

In an official response, the movement issued the following statement: “It is true that since the membership in the kibbutz has ceased to become automatic, people with mental disabilities have not been accepted as new members. Regarding those physically disabled, we do not see it as a phenomenon, but it could happen”.

NYT on Autism

So maybe my criticism of the Times was a bit hasty. Tomorrow's edition contains this interesting article about people with autism who do not want to be "cured." The piece does a good job, for a newspaper story, of presenting the perspectives of both self-advocates and parents who want a cure and of suggesting some of the diversity that is encompassed within the population of those with autism.

As in Canada, So in America

The (New London, CT) Day has this article today entitled "Thousands with Psychiatric Disabilities Locked Away in Nursing Homes."

NYT on Medical "Fixes" for Disabilities

The Week in Review section has this article today. The lack of a disability rights perspective is unsurprising, but disappointing.

Some Hesitant to Back Disabilities Law Overhaul

The Salt Lake Tribune runs today the Cox News Service article by that title Michael Waterstone sent me a few days ago.

Young People in Nursing Homes

The (Toronto) Globe and Mail has this report about people with disabilities being forced to live in nursing homes in Canada.

Seventh Circuit on Definition of Disability

The Seventh Circuit Friday issued its opinion in Branham v. Snow. The court ruled that an individual with insulin-dependent diabetes satisfied his summary judgment burden on the issue of whether he had a "disability" as defined by the Rehabilitation Act (which is the same for these purposes as the ADA). The court found that the plaintiff had presented sufficient evidence of substantial limitation in the major life activity of eating on the basis of the following:

He is significantly restricted as to the manner in which he can eat as compared to the average person in the general population. His dietary intake is dictated by his diabetes, and must respond, with significant precision, to the blood sugar readings he takes four times a day. Depending upon the level of his blood sugar, Mr. Branham may have to eat immediately, may have to wait to eat, or may have to eat certain types of food. Even after the mitigating measures of his treatment regimen, he is never free to eat whatever he pleases because he risks both mild and severe bodily reactions if he disregards his blood sugar readings. He must adjust his diet to compensate for any greater exertion, stress, or illness that he experiences.

The court also concluded that the plaintiff, who had been rejected by the IRS for a criminal investigator's position on the basis of his diabetes, had presented sufficient evidence to overcome summary judgment on the questions whether he was "otherwise qualified" and would pose a "direct threat."

As this case shows, Sutton's mitigating measures ruling doesn't mean that all plaintiffs with controlled, insulin-dependent diabetes will lose on the disability question. Courts must still consider whether the mitigating measures themselves impose substantial limitations. Although some courts seem to have missed that point, the Seventh Circuit's decision in Branham is a good example of the approach Sutton calls for.

Disabled Students Struggle with Mobility on Campus

An article by that title, which discusses accessibility at the University of Alabama, appears here.

Baltimore Special Ed Consent Decree Developments

The Baltimore Sun has this article on the long-running litigation today, which begins: "A federal judge ruled yesterday that inadequate state funding and financial missteps by city school officials are hurting Baltimore's disabled students."

More Molski

The Salinas Californian has this article.

Sixth Circuit on Applied Behavioral Analysis and IDEA

On Thursday, the Sixth Circuit issued its opinion in Deal v. Hamilton County Board of Education. In this potentially quite significant case, the court held that the school district had violated IDEA 's procedural requirements by adopting a de facto policy of simply refusing to consider applied behavioral analysis (ABA) as an educational tool for kids with autism. And the court held that the school district might have been required to provide ABA as a substantive matter, notwithstanding Rowley, though it remanded to the ALJ for further consideration of that question.

ADA "Shotgun" Suits Criticized

The Florida Times-Union had this article by that title a couple of weeks ago, which article I just saw today.

Workplace Disability Coverage Hit By Judge

Westlaw has an article by that title from the (Quincy, MA) Patriot-Ledger. I can't find it on the web, but it's available at 2004 WL 62252289. Here are the first couple of grafs:

A federal judge in Boston has suggested that disability coverage for millions of American workers may illegally discriminate against those with mental illness.

In the first ruling on the issue in this region, Chief U.S. District Judge William Young allowed a former Digital Equipment Co. worker to go forward with her complaint that Digital's disability insurance policy violated federal law by offering fewer benefits to workers with psychiatric problems than to those with physical illness.

Judge Young's typically thorough opinion, which can be found here, runs against the great weight of the case law. (Though, for what it's worth, I criticize that case law in my recent Future of Disability Law piece.)

More on Molski

Maybe this isn't the best time for Judge Rafeedie's favorite ADA plaintiff to be opening up a new front. But I guess Carmel isn't in the Central District.

D.C. Circuit on Definition of Disability

The D.C. Circuit issued this opinion involving the ADA's definition of disability. As the court viewed the record, the case involved a person who had some kind of itching reaction to something at his workplace. The itching reaction would last long after the plaintiff got home at night and therefore make it impossible for him to get a good night's sleep. The court held that the plaintiff had not raised a genuine issue of fact regarding whether he experienced a substantial limitation in (what the court assumed to be) the major life activity of sleeping, because he was limited in sleeping only if he continued to work in his current job. Although the plaintiff had itching reactions in other locations, he presented no evidence that the itching reactions he experienced outside of his workplace were severe enough to make him lose sleep. Thus, if he worked in another job, there's no reason to think he'd be limited in sleeping. This decision is very similar to the Supreme Court's decision in Toyota in that it bars an ADA plaintiff from invoking a non-work major life activity to get around Sutton's restrictive reading of the concept of substantial limitation in the major life activity of working.

Voting Accessibility in Westchester

See this article on a recently filed suit challenging inaccessible polling places throughout Westchester County, NY.

Polling Place Access Limits Assailed

While I'm cleaning up old business, the Patriot-Ledger had an article by that title last week. Here's the lede:

An advocacy group has filed complaints with the secretary of state against Plymouth and Rockland for polling places that do not meet federal guidelines on access for disabled people.

Deaf Woman Sues Mall

I missed this article from the Boston Herald on Sunday. A too-common story. Some key grafs:

A deaf Massachusetts woman claims a New Hampshire mall store clerk had her arrested and ``humiliated'' her after she requested pen and paper to communicate and refused to leave the store.
* * *
Susan Wolf-Downes, executive director of Northeast Deaf and Hard of Hearing Services in Concord, N.H., said she believes Abbott's experience is credible.
``It's doesn't surprise me. It's sad to say, but things like this happen all the time to us,'' she said through an interpreter. Asked whether Abbott should have been carrying her own pen and paper, Wolf-Downes replied, ``Why should she?''

To the Community in Louisiana

This article in today's Times-Picayune begins: "Taking the first major steps to moving Louisiana away from its heavy reliance on nursing homes and institutions, Gov. Kathleen Blanco will announce a plan today to shift long-term care for the elderly and disabled to more community-based options."

A Thought

How does she feel about stories like this?

Article on NCD's Proposed "ADA Restoration Act"

Michael Waterstone passes along an interesting article from Cox News Service that neither he nor I can find on the web. Here are the first few grafs:

Leaders of several national disability groups are hesitating to endorse a recommendation by President Bush's disability advisers that he and Congress rewrite the Americans With Disabilities Act next year.

The National Council on Disability, whose 15 members were nominated by Bush and confirmed by the Senate, reported this month that "many Americans with disabilities feel that a series of negative court decisions is reducing their status to second-class citizens, a status that the ADA was supposed to remedy forever."

Most disability advocates agree. But some fear that if Congress takes up the council's proposed "ADA Restoration Act," it might end up making the law weaker, instead of stronger.

A Flood of Troubled Soliders is in the Offing, Experts Predict

See this article by that title in today's New York Times. Not exactly about disability law, but it's important to remember that politically active soliders returning from Vietnam with disabilities were an important part of the 1970s disability rights movement in America. This war, with its high rate of amputations, and the psychiatric issues discussed in this article, may lead to something similar.

New (to Me) Medicaid Website

Families USA now has an online Medicaid Action Center that promises to contain up-to-date information on the debates over Medicaid that are beginning on Capitol Hill.

Ragged Edge on C.D. Cal. "Vexatious Litigant"

Ragged Edge online reprints here a November 2004 article about the plaintiff, with updates reflecting Judge Rafeedie's ruling and the coverage it has received.

Spector Topside Briefs Online

The folks at SCOTUSblog have posted the topside (i.e., plaintiffs'-side) briefs in Spector v. Norwegian Cruise Lines, which asks whether ADA Title III applies to foreign-flagged cruise ships.

Disability Policy in Africa

This article reports on a study of Namibia, Zimbabwe, and Malawi. Bottom line: these countries have very little disability policy to speak of, much less effective disability policy.

Medicare and Power Wheelchairs

The GAO issued this report on the subject today. It's a complicated issue. The trick is to make sure that in cracking down on fraud the government doesn't keep people from getting the equipment that enables them to live independent lives.

Other Morning News

The South Florida Sun-Sentinel contains this article, which begins:

The parents of a diabetic student at Chancellor Charter School in Lantana have sued the Palm Beach County School Board, accusing it of violating the Americans with Disabilities Act. The parents say their son was prevented from checking his blood-sugar levels in class and prohibited from administering his own medications in the classroom.

Pruden on C.D. Cal. Vexatious Litigant Ruling

Wesley Pruden of the Washington Times has this column on Judge Rafeedie's opinion. He obviously doesn't agree with my point of view.

Judge Pares Jury's Award in ADA Case

An article by that title discusses what has to be one of the largest verdicts I've ever seen in a disability discrimination case (here, a disability employment discrimination case): $8.6 million, reduced to just over $1 million because of state and federal damages caps.

Puff Piece on TWWIIA

In honor of the statute's fifth anniversary. See this article in the Palm Beach Post.

Accessibility in the British Isles

This article reports that "A lack of accessibility continues to hamper the social lives of many disabled people in Ireland, according to the National Disability Authority." It goes on to discuss some of the findings.

And this article reports that public-accommodations provisions of the British Disability Discrimination Act have "done little to improve access to Ipswich shops."

GAO on People with Disabilities and WIA

The Government Accountability Office (in case you missed it, that's the new name of the GAO) today released this report entitled "Workforce Investment Act: Labor Has Taken Several Steps to
Facilitate Access to One-Stops for Persons with Disabilities, but These Actions May Not Be Sufficient."

Pataki Vetoes Bill on Out-of-State Schools for Disabled

Newsday has an AP article by that title today. Here's the lede:

Gov. George Pataki has ordered a state commission to report seven months earlier than scheduled on ways to avoid having to send young, disabled New Yorkers to out-of-state residential schools for education and training. The work group was appointed in 2003 and was to have made recommendations by the end of 2005. But Pataki moved up that timetable to June 1, 2005 as he vetoed legislation that would have mandated heightened regulation of the out-of-state schools for the disabled by the New York state Education Department and other New York agencies.

More on the C.D. Cal.'s Title III "Vexatious Litigant" Ruling

The Santa Maria (CA) Times has this editorial supporting Judge Rafeedie's decision.

DDA Backlash?

See this intriguing article about an exaggerated claim regarding the burdens imposed by Britain's Disability Discrimination Act. Folks who have followed the implementation of the ADA will see a lot that's familiar.

Medicaid Cuts on the Way

See the lede of this AP article: "Michael Leavitt, President Bush's choice to be secretary of Health and Human Services, may have to cut billions of dollars from the government's mammoth health programs for the elderly, poor and disabled to pare the budget deficit."

Selective Nontreatment of Infants with Disabilities

Now on SSRN: Janet Read & Luke Clements, Demonstrably Awful: The Right to Life and the Selective Non-Treatment of Disabled Babies and Young Children, 31 J.L. & Soc. 482 (2004). Here's the abstract of the article, by two British scholars:

Twenty-five years ago it was common practice to bring about the deaths of some children with learning disabilities or physical impairments. This paper considers a small number of landmark cases in the early 1980s that confronted this practice. These cases illustrate a process by which external forces (social, philosophical, political, and professional) moved through the legal system to effect a profound change outside that system - primarily in the (then) largely closed domain of medical conduct/practice. These cases are considered from a socio-legal perspective. In particular, the paper analyses the reasons why they surfaced at that time, the social and political contexts that shaped the judgments, and their legacy.

Attitudes of People with Disabilities About Physician-Assisted Suicide

New on Westlaw, the Journal of Health Politics, Policy, and Law contains an article entitled Attitudes of People with Disabilities Toward Physician-Assisted Suicide Legislation: Broadening the Dialogue, 28 J. Health Pol. Pol'y & L. 977 (2003). From the abstract:

For close to half of the participants, the desire for autonomy in making end-of-life decisions was a primary concern, yet fear that PAS legislation could violate this autonomy in various ways was a deep concern as well. Also reported were widespread accounts of disability-based discrimination and frequent expressions of fear about openly discussing positions that diverge from the official, publicly held opinions of disability leaders who oppose such legislation. The findings support those of a recent Harris poll demonstrating considerable diversity of opinion about PAS legislation among people with disabilities. The findings further suggest the need for additional research on the apparent disjunction between the diversity of attitudes held by those interviewed and the more unified position taken by many disability activists.

Casey Martin Hits . . . the Golf Course

This article begins: "A discrimination complaint has been filed with the Justice Department alleging that the Robert Trent Jones Golf Trail refuses to provide golf carts for the disabled." The complaint was filed by an individual with paraplegia and an organization that aims to introduce people with disabilities to golf.

Group Homes in New York

See this interesting article about New York's increased funding for group homes.

Effects of New Special Ed Laws Remain Unclear

The Atlanta Journal-Constitution had an article by that title yesterday about the IDEA reauthorization. Maybe it's just me, but is the fact that the Gwinnett County school system had to pay $250,000 for attorney's fees out of a $109 million annual special education budget such good evidence that IDEA lawsuits are imposing a crushing burden on school districts?

Olmstead Plaintiff Dies

The Atlanta Journal-Constitution has this obituary of Elaine Wilson (referred to as E.W. in court papers). Thanks to the Justice for All listserv for the pointer.

Along the Same Lines . . .

New on Westlaw is an article entitled "Mentally Ill Criminal Offenders and the Strict Liability Effect: Is There Hope for a Just Jurisprudence in an Era of Responsibility/Consequences Talk?" It appears at 57 Ark. L. Rev. 447 (2004).

How the Justice System Criminalizes Mental Illness

Brent Staples has an illuminating "Editorial Observer" column by that title in today's New York Times.

Job Coaching v. Sheltered Workshops

The Capital Times (Madison, WI) has this interesting article about an ADA lawsuit by a woman with severe developmental disabilities and her parents, who allege that their county imposes spending caps on job coaching services that, combined with "a near-monopoly arrangement with one private contractor," skews "county services toward placing disabled workers in sheltered workshops where they remain segregated from their able-bodied peers."

Institutionalized Judge Faces Own Ruling

An AP article by that title begins:

More than 20 years ago, federal Judge Bruce Van Sickle issued a landmark decision that led to the release of hundreds of mentally retarded people from two North Dakota institutions. Now, 87 years old and stricken with Alzheimer's, the retired judge is himself at the center of a legal fight to remove him from an institution.

Disabled Man's Suits Restricted

An article by that title appears in today's LA Times. The article discusses an order issued by Judge Rafeedie of the Central District of California prohibiting a man from filing any further lawsuits under the ADA without first seeking leave of court. The man had filed approximately 400 prior public-accommodations suits under Title III and the parallel California antidiscrimination law, settling the majority. The article quotes three of my favorite experts on these issues -- one of whom, shockingly, seems to share my views exactly.

Waterstone on Medicaid Cuts and the ADA

Michael Waterstone passes along this op-ed he wrote for the Clarion-Ledger regarding Mississippi's Medicaid cuts and why they might violate the ADA.

Deaf Win Rights As Patients

The St. Paul Pioneer-Press has an article by that title. The article discusses a consent decree just filed in ADA litigation challenging practices at a number of hospitals that failed adequately to communicate with deaf patients. The Minneapolis Star-Tribune also has an article on the same subject.

Ervin Op-Ed on International Disability Law

ADAPT's Mike Ervin has this op-ed today urging the Bush Administration to change its current position and support the international disability rights treaty that is currently being drafted.

More Post-Lane Case Law

New on Westlaw, though not so new in fact, is a decision from the Western District of Texas holding that Title II does not validly abrogate state sovereign immunity in a case involving a bar applicant's request for extra time on the bar exam. Lane is distinguished because there is no fundamental right to sit for the bar. The case is Simmang v. Texas Board of Law Examiners, 2004 WL 2108240 (W.D. Tex. Sept. 15, 2004), and it shows why it was a good thing the Supreme Court considered Title II's constitutionality in Lane rather than Hason.

More on NJ Special Ed. Study

With a particular focus on racial disparities. See this Newark Star-Ledger article.

Health Disparities and People with Disabilities

This article from the BBC reports on the British Disability Rights Commission's decision to open an inquiry into health disparities involving people with learning disabilities and psychiatric disabilities. According to the article,

The DRC says that initial research shows that:

• People with learning disabilities are four times more likely to die as a result of a preventable condition
• People with diagnosed schizophrenia die, on average, nine years before the rest of the population
• Fewer than 20 percent of learning disabled women attend cervical screening
• People with learning disabilities are 58 times more likely to die before the age of 50

The DRC is anxious to determine the causes of these health inequalities and will make recommendations about how they can be reduced when it reports in 18 months' time.

NCD Releases Annual Progress Report

The National Council on Disability today released the latest installment of National Disability Policy: A Progress Report, covering the period from December 2002 through December 2003. Can anybody explain the one-year time-lag in the preparation of these things?

Casey Martin Hits the Streets

This article discusses the efforts of one Peoria Heights (IL) man with Freidrich's Ataxia to get city authorities to allow him to get around by driving his golf cart on the streets. The man, who wants to be able to spend time outside with his kids -- and take them to the park or country club -- is at least making noises about a suit under the ADA.

Disability Law in Wales

This article begins: "VICE-CHANCELLORS across Wales will be having sleepless nights as they contemplate how their institutions will comply with the requirements of the Disability Discrimination Act which now applies to the university sector."

On Burgdorf on ADA Restoration Act

This past Sunday, the Evansville (IN) Courier-Press had this article on law professor (and apparently Evansville native) Bob Burgdorf's role in the drafting of the ADA and the new proposed ADA Restoration Act.

Judge Sweet on Abrogation Under the ADA/Rehabilitation Act

In a decision issued Monday, now available on Westlaw, Judge Sweet of the Southern District of New York held that the Second Circuit's decision in Garcia v. SUNY Health Sciences Center, 280 F.3d 98 (2d Cir. 2001), applies to bar an ADA Title II/Rehabilitation Act suit by a prisoner who alleged that correction officers destroyed his hearing aids. Degrafenreid v. Ricks, 2004 WL 2793168 (SDNY Dec. 6, 2004). Judge Sweet held, without much discussion, that nothing in Tennessee v. Lane contradicts Garcia's Title II holding -- that "a private suit for money damages under Title II of the ADA may only be maintained against a state if the plaintiff can establish that the Title II violation was motivated by either discriminatory animus or ill will due to disability." Garcia, 280 F.3d at 112. And the court held that Garcia's Rehabilitation Act holding -- that there was no valid waiver of sovereign immunity because at the time it accepted federal funds the state couldn't have known it had any immunity to give up -- applied in full force. The Rehabilitation Act point is especially curious, because Garcia involved conduct that ended by 1995. Crucial to the Second Circuit's ruling in that case was the conclusion that by 1995 -- pre-Boerne and pre-Seminole -- "even the most studied scholar of constitutional law would have had little reason to doubt the validity of Congress's asserted abrogation of New York's sovereign immunity as to private damage suits under Title II." Garcia, 280 F.3d at 114 n.4. The Second Circuit reasoned that a state that accepted federal funds at that point would have thought that its immunity was already abrogated by the ADA and thus would not have made a knowing decision to waive its immunity by accepting federal funds. But the conduct at issue in Degrafenreid occurred in 2002, well after Seminole and Boerne, and even after Garrett and Garcia itself. A state that accepted federal funds at that point would have known that there was at least a real chance that the ADA didn't validly abrogate its immunity. Garcia's Rehabilitation Act holding is already pretty hard to defend; Degrafenreid takes it well past even the defense the Second Circuit offered.

Report says N.J. Lags in Mainstreaming

Today's Newsday contains this article discussing a new report by the state's developmental disabilities council on that topic. The lede captures the basic thrust of the story: "New Jersey buses more special education students to classes outside their districts than any other state in the nation and classifies a disproportionate number of minority students as disabled, according to a state watchdog agency."

Rep. David Dreier on IDEA Reauthorization

See this op-ed the California Republican published in today's LA Times.

Seniors and the Fair Housing Act

I hadn't noticed this before, but the Bazelon Center has posted online a copy of a forthcoming Iowa Law Review article by Robert Schwemm & Michael Allen entitled For the Rest of Their Lives: Seniors and the Fair Housing Act.

Interacting With Others

New on Westlaw: Mark DeLoach's note, Can't We All Just Get Along? The Treatment of "Interacting with Others" as a Major Life Activity in the Americans with Disabilities Act, 57 Vand. L. Rev. 1313 (2004).

There's been great work done recently on related issues. See Ann Hubbard, The Major Life Activity of Belonging, 39 Wake Forest L. Rev. 217 (2004); Ann Hubbard, Meaningful Lives and Major Life Activities, 55 Ala. L. Rev. 997 (2004). And Elizabeth Emens has an enlightening discussion of, among other things, the "interacting with others" issue in her piece forthcoming in Georgetown, The Sympathetic Discriminator.

ADA Compliance at SUNY

Professors' union asserts here that SUNY campuses are not in full compliance with the ADA: "while SUNY buildings are accessible, safety, barrier and classroom deficiencies remain. Problems include poorly designed sidewalks, lack of accessible restrooms and elevators, and building emergency evacuation plans that don't account for disabled students and employees."

Farmers with Disabilities

See this article about an organization in Wisconsin that helps farmers with disabilities accommodate their farms to keep working.

California Supreme Court to Define Mental Retardation

For purposes of determining whether an individual is eligible for the death penalty. See this article (via How Appealing). An interesting window into how states are implementing Atkins, and the weight that decision places on the disability labeling process.

Paying for Long-Term Care

Richard Kaplan of the law school at the University of Illinois has just posted on SSRN a paper entitled "Cracking the Conundrum: Toward a Rational Financing of Long-Term Care." The key policy proposal, as summarized in the abstract, is to "expand Medicare to cover long-term care in nursing homes but maintain responsibility for other long-term care settings with the affected individuals and their families." That wouldn't be my policy preference, but it's an important issue.

The Disability Dilemma

An article by that title appears in today's Kansas City Star. It's a good treatment of some of the issues involved in getting some people with disabilities into the workforce.

Disability Benefits Reform in Britain

This article describes a recent report that concludes that the British system of incapacity benefits imposes severe work disincentives and should be reformed. As I argued in my recent Yale piece, these are the kinds of issues American disability law has been dealing with at least since the 1999 enactment of the Ticket to Work and Work Incentives Improvement Act, and we'll be dealing with them more and more in the future.

Inclusive Schools in Charlotte-Mecklenburg

On a happier note, this article discusses the Charlotte-Mecklenburg (NC) School District's new policy of pairing special-education and regular-education teachers to co-teach classes that include students with and without disabilities.

Students with Cerebral Palsy

This article from a Louisiana newspaper discusses the difficulty the parents of a few kids with cerebral palsy are having in getting their local school district to take their kids seriously academically. An altogether too common problem.

Faking Learning Disabilities?

There's an interesting article on that subject from the UCLA Daily Bruin. Tidbits, which you can take for what they're worth: Psychologists in the field seem to agree that it's really hard to fake learning disabilities to obtain accommodations on standardized tests; "malingering is most common among law school applicants," who want extra time on the LSAT; and "[i]n recent years, testing companies have set more stringent guidelines for obtaining accommodations."

SCOTUSblog on "Terri's Law" Appeal

Lyle Denniston has a good post on SCOTUSblog discussing Florida Governor Jeb Bush's petition seeking cert. from the Florida Supreme Court's judgment invalidating "Terri's Law." This so-called "right-to-die" case has attracted national attention, though as Denniston shows it is hard to see the federal issue that Bush is in a proper position to raise before the Court.

DC Circuit Holds Buckhannon Applies to IDEA

So no attorneys' fees for private settlement. The opinion, per Judge Rogers, with Judges Tatel and Garland joining, is here. A number of other courts of appeals have reached the same conclusion.

News from up North

This press release reports that the Accessibility for Ontarians with Disabilities Act -- a comprehensive disability access law -- has passed second reading in the provincial legislature. Thanks to Ravi Malhotra for the tip.

Senator Clinton on IDEA Reauthorization

She likes the discipline provisions. See this Newsday article.

Spector Petitioner's Brief

The folks at SCOTUSblog have posted the petitioners' brief in Spector v. Norwegian Cruise Lines, in which the Supreme Court will decide this Term whether Title III of the ADA applies to foreign-flagged cruise ships. (Disclosure: I offered some minor assistance to Goldstein & Howe and Pam Karlan's Stanford Supreme Court clinic, who are counsel to the petitioners.)

IDEA Signing Statement

The President made these remarks this morning on signing the IDEA reauthorization.

Morning News

Today's New York Times has an article on the problems kids with disabilities and their parents are having with NYC's system for transporting special education students -- presumably, though the article doesn't say this, those special education students who are not placed with the general student population -- to school.

Eduwonk points to this analysis of the IDEA reauthorization from the conservative Fordham Foundation.

Has the ADA Reduced Employment for People with Disabilities?

My essay by that title is now available at 25 Berkeley J. Emp. & Lab. L. 527 (2004). It's on Westlaw, but the journal webpage doesn't link to a PDF version. My bottom line, reviewing the major empirical studies on the ADA's employment effects, is: Contrary to the views of many in the legal academy and the field of economics, the ADA probably hasn't reduced employment for people with disabilities, and its long-term effects are likely to be positive. But it hasn't had that significant a positive effect on the overall employment rate for people with disabilities so far, it has clearly helped some people with disabilities more than others, and it may have helped some people with disabilities at the expense of others.

Waterstone on Comparative Voting Accessibility

Just posted on SSRN: Michael Waterstone's recent piece "Civil Rights and the Administration of Elections - Toward Secret Ballots and Polling Place Access," which is alread in print at 8 J. Gender, Race, & Just. 101 (2004). It's a very interesting comparative treatment of ways of guaranteeing people with disabilities a right to vote independently, in secret, at accessible polling places.

Book Recommendation

I just finished reading Alice Domurat Dreger's new book One of Us: Conjoined Twins and the Future of Normal. Dreger, a medical historian by training, takes what's basically a disability-rights approach to the question of how medicine and society should deal with conjoined twins. Her basic argument is that the "problem" of conjoinment is most basically a social, not a medical one. She contends that doctors ought not to treat surgical separation as the "normal" response to conjoinment but that we should instead focus on changing social attitudes that treat conjoinment as a tragedy. It's a really fabulous book, one that's enriched by the fact that the author has obviously worked hard to listen to -- and communicate to us -- the voices of conjoined twins themselves. The last paragraph of the book captures the basic tenor of her argument:

But what if we understood such twins as people who are no more broken than anyone else? What if we stopped thinking of biological anomalies as sworn enemies of humanity, and started recognizing their full social nature, perhaps even their social potential? In the long run, we can do better than try to guarantee every child a "normal" body. We can try to guarantee a just world. If you take seriously what conjoined people have said about their bodies and their lives, you realize they are still experiencing what Mary Wollstonecraft felt in the late eighteenth century: "It is justice, not charity, that is wanting in the world." Let us now stop referring to children who undergo massive normalizations as "real fighters," and start recognizing that we are the ones who construct what they are fighting against.

I certainly don't agree with everything in the book, and the 155 pages of text often left me hungry for elaboration, but I think anyone who is interested in disability rights and disability studies ought to read it.

Sen on Disability and Development Policy

This Financial Times article reports on a speech Amartya Sen gave to the World Bank urging that development policy take account of disability.

Two From the DLC on IDEA

New Democrats Online has released this statement praising the IDEA reauthorization (and highlighting the role of the Democratic Leadership Council's Progressive Policy Institute in developing some of the principles that motivated it). And Eduwonk has an interesting post entitled "Bait and Switch on Ed Funding?" which discusses the budget Congress is about to pass. About IDEA funding particularly, Eduwonk notes:

FY05 level is $10.6 billion, an increase of approximately $500 million, or 5.2%, over FY04. This puts IDEA spending at about 19% of average-per-pupil-expenditure and less than half the “full funding” level of 40%. The final figure is $600 million less than the FY05 Senate bill level and almost $500 million below the FY05 President’s budget.

EEOC Suit in Kansas City

This article discusses a suit just filed by the EEOC under ADA Title I challenging UMB Bank's refusal to hire a person with quadriplegia for a customer support or sales agent position. There doesn't seem to be any systemic piece to the case.

Judge Gettleman and the ADA

Underneath Their Robes has an interesting interview with Judge Robert Gettleman of the Northern District of Illinois. Scroll down to question #16 to read his views about the Supreme Court's ADA decisions.

NCD "Righting the ADA" Report

The National Council on Disability has released its report, "Righting the ADA." This lengthy report, drafted by Professor Robert Burgdorf of the University of District of Columbia Law School., offers the proposed text for an "ADA Restoration Act" that would overturn the Supreme Court's decisions in Sutton, Murphy, Toyota, Chevron, US Airways, Barnes, and Buckhannon. An interesting opening bid in the disability community's efforts to undo the limitations the Supreme Court has placed on the ADA.

More IDEA News

AP article on discipline provisions in the IDEA reauthorization, written largely from Sen. Jeff Sessions's perspective as a key advocate of those provisions. (Via Eduwonk.)

Soliders with Amputations Returning to Duty

This article in the Washington Post discusses the U.S. Military's emerging policy of allowing soldiers who lose limbs in war injuries to remain on duty, provided they can pass physical fitness tests and the like. I wonder how this development will affect the policies of police departments and the like stateside who refuse to hire people with prosthetic limbs.

Eating Disorders "Not Otherwise Specified"

Interesting article in the NYT about the evolution of psychiatric diagnoses, and the process of determining what conditions do and don't count as diagnosable psychiatric conditions.

EdWeek Article on IDEA Reauthorization

EdWeek has an article about the IDEA reauthorization bill that awaits the President's signature. Quotes from, inter alia, Paul Marchand.

Hello

Welcome to the disability law blog. This is an experiment. My basic goal with this blog is to provide periodic updates on cases, news, and scholarship dealing with disability law. I don't intend to be as comprehensive as a Howard Bashman or Rick Hasen, and I don't intend to offer lots of opinionated commentary. Instead, I intend basically to provide a frequently updated, probably incomplete, but hopefully helpful, source of information about the developing jurisprudence of disability law.