Eleventh Circuit Opinion Denying Rehearing in Schiavo . . .

. . . is here. Judge Birch filed a concurrence that argues that the statute passed last week by Congress is unconstitutional.

Ninth Circuit on Medicaid Waiver Caps and ADA Title II

Yesterday, the Ninth Circuit issued its opinion in The Arc of Washington State v. Braddock. In an opinion by Judge Fernandez, the court held that the integration mandate of Title II of the ADA could not be invoked to require a state to expand its Medicaid Home and Community-Based Waiver program beyond the number of slots approved in the state's Medicaid plan. The court argued that the Medicaid Act expressly contemplates that states might impose caps on the number of people eligible to participate in waiver programs, and that the statute's implementing regulations require states to adhere to the caps that appear in their state plans. Although ADA Title II's integration mandate sometimes requires states to create new community placements for people with disabilities, the court held that in this context the specific provisions of the Medicaid Act and its implementing regulations took precedence over the general terms of Title II.

That reasoning, it seems to me, can only go so far. Because the Medicaid Act permits states to impose a cap on waiver slots, it might make sense to say that the simple fact that the state has imposed such a cap cannot in and of itself violate the ADA, lest the two statutes come into conflict. But states have pretty broad discretion in deciding where to set the cap. I don't think there would be any conflict with the Medicaid Act in saying that the ADA requires the state to seek a waiver with a higher cap. From the way the opinion is written, it looks like the plaintiffs challenged the mere existence of a cap rather than the size of the cap (or at least that's how the court was reading the complaint). That means that the case does not stand as precedent against an ADA claim that seeks an increase in the size of a state's Home and Community-Based Waiver cap.

Post-Schiavo Legislation?

See this AP dispatch:

Congress is turning to more traditional means to help protect the rights of the incapacitated after failing in its efforts to intervene in the Terri Schiavo case by staging emergency midnight votes and summoning the brain-damaged woman to testify.

* * *

Sen. Tom Harkin, D-Iowa, an advocate for the disabled, is working on a bill to provide for additional federal court review in cases where the wishes of the incapacitated person are not known and there is a dispute among family members.

Harkin's spokeswoman, Allison Dobson, said the senator is talking to legal experts and members of the disability community and wanted to make sure that his bill would respect the advance directives of patients and would apply to a limited number of circumstances.

Andrew Imparato, president of the American Association of People with Disabilities, said he was pleased that Harkin, one of the more liberal senators, might work with conservatives such as Sens. Sam Brownback, R-Kan., and Mel Martinez, R-Fla., to come up with legislation that would be acceptable across the political spectrum.

Imparato said their hope was that "we can set aside the politics of the culture of life and abortion, and focus on the implications for people with disabilities."

Israeli Disability Bill Advances

I missed this piece from Haaretz last week:

The Knesset voted 36-0 Tuesday to approve one of the most sweeping social laws in the history of the state, which makes residential buildings, workplaces, commercial areas, public institutions, schools, clinics, recreation and nature sites, and even traffic intersections and sidewalks accessible to individuals with physical, sensory and mental disabilities.

"Some 750,000 disabled individuals live in Israel. The law will allow us to live in a progressive society in which individuals with disabilities have full equality," said MK Shaul Yahalom, chairman of the Knesset Labor and Welfare Committee, which approved the bill Monday for its final readings in the legislature.

Yahalom's committee has been discussing the huge legislative initiative on an almost weekly basis for the past two years.

The issue of accessibility occupies the largest and most complex section of the equal rights for people with disabilities bill that was initiated some 10 years ago by Bizchut - The Israel Human Rights Center for People with Disabilities. The clauses of the bill that deal with equality in the field of employment, accessibility to public transport and the establishment of an equal rights commission for people with disabilities were approved in 1998.

Under an agreement reached this week between Yahalom and representatives of the treasury, the accessibility project will be implemented over a period of up to 14 years from today, at a total cost of some NIS 2.5 billion. Work on the project will begin 18 months from now, following the formulation of all the relevant ordinances for implementing the law.

According to Finance Minister Benjamin Netanyahu, implementation of the law will be "a real revolution for the disabled public, and has an important educational message."

The proposed law also packs a punch, to ensure its enforcement: An individual who fails to uphold his obligation vis-a-vis accessibility for disabled people can be fined up to NIS 50,000. Office holders who break the law could face criminal proceedings - an unusual sanction in the public sector.

Study on Consumers with Disabilities and the ADA

See this press release:

Respondents were asked to report on their awareness of the ADA and to evaluate whether conditions had improved over the years 1994-1998 in public transportation. A study publishing in the latest issue of the Journal of Consumer Affairs is the first to present the perspectives of people with disabilities regarding the effectiveness of the Americans with Disabilities Act (ADA). The study asks those for whom the policy was designed how well the policy works. The authors examined the responses from a national sample of 1000 noninstitutionalized persons with disabilities. The study found that respondents who perceived greater access to the marketplace are more satisfied with life and the more consumers with disabilities interact in the market place, the more satisfied with life they are. "This indicates the value behind efforts designed to empower consumers with disabilities by offering services that assist them… and by creating environments that enable them to experience full participation in society," the authors Carol Kaufman-Scarborough and Stacey Menzel Baker state.

Respondents were asked to report on their awareness of the and to evaluate whether conditions had improved over the years 1994-1998 in public transportation, public facilities/theaters/stores, public attitude toward the disabled, and portrayals of disabled people in the media and advertising. Slightly more than half (54.3%) of the respondents reported knowing about a "law" regarding disabilities that was passed within the ten years before their interviews. Approximately that same number could identify it as the ADA. Those that did name the ADA were more likely to perceive positive changes and improvements over those who could not name it or were unaware of a law being passed. Yet, the respondents' level of life satisfaction did not vary with their awareness of the ADA. Their level of satisfaction and dissatisfaction varies regardless of their knowledge of the act. The author's findings support that the legislation is beneficial and that access to public facilities has an impact on life satisfaction. "However our findings do indicate that the implementation of the ADA is incomplete, especially educating consumers with disabilities about their consumer rights," the authors conclude.

This study is published in the current issue of Journal of Consumer Affairs. Media wishing to receive a PDF of this article please contact journalnews@bos.blackwellpublishing.net

Harkin on Disability and Social Security Privatization

Last Friday, Sen. Tom Harkin had this op-ed in the St. Paul Pioneer Press, which began:

Something big has been left out of the great national debate over privatization of Social Security. Most Americans don't realize that Social Security is more than a retirement program; it is also an insurance program for workers who become disabled before they retire.

The privatizers have painted a rosy picture of young Americans riding a bull market to a bountiful retirement. But what about the nearly 7 million workers with disabilities and their dependents who currently rely on Social Security disability benefits, often for 100 percent of their income? And what about the three in 10 now-young Americans who will become disabled at some point in their life? Under privatization, will their disability benefits be slashed by the same 30 percent to 50 percent as retirement benefits, pushing them below the poverty level?

The privatizers are not the only ones dodging these momentous questions. President Bush's Commission to Strengthen Social Security devoted just two pages in its 256-page final report to the topic of disability benefits, despite the fact these payments account for 17 percent of all Social Security expenditures. The commission urged the president to initiate a "separate policy development process" to address the disability program, but he opted not to touch this hot potato.

The problem is that all the commission's budget projections assume that disability benefits will be cut the same as retirement benefits. In the commission's final report, according to the Associated Press, "disability benefits get reduced along with retiree benefits, in some cases up to 46 percent. The cuts were used to make the plan's finances add up in the report."

New NCD Listserv

The National Council on Disability has issued this press release:

WASHINGTON, March 28 /U.S. Newswire/ -- The National Council on Disability (NCD) today launched a new disability listserv that will provide critical information on issues affecting people with disabilities, including a monthly newsletter known as the NCD Bulletin, news releases, legislative updates, and other newsworthy items.

The NCD listserv will be maintained by the U.S. Government Printing Office (GPO), which currently operates 19 government listservs ( http://listserv.access.gpo.gov/ ). Use of GPO as the site administrator will help maintain system integrity.

To subscribe to the NCD’s listserv, send the following command: SUBSCRIBE NCD-NEWS-L (FIRSTNAME LASTNAME) to LISTSERV@LISTSERV.ACCESS.GPO.GOV or go to http://listserv.access.gpo.gov/ and click on "Online mailing list archives," then select "NCD-NEWS-L" and complete the short subscription form.

NCD is an independent federal agency making recommendations to the President and Congress to enhance the lives of people with disabilities and their families. In 1986, NCD first proposed and then drafted the original ADA.

NCD’s overall purpose is to promote policies, programs, practices, and procedures that guarantee equal opportunity for all individuals with disabilities, regardless of the nature or severity of the disability; and to empower individuals with disabilities to achieve economic self-sufficiency, independent living, and inclusion and integration into all aspects of society.

NCD is currently working on a series of reports known as "Investing in Independence," which interrelate with centerpiece initiatives presented in President Bush's New Freedom Initiative. These reports focus on transitioning people from social security income to work; long-term supports and services; the impact of the Americans with Disabilities Act; and, financial incentives related to employment and living independently.

For more information, contact Mark Quigley at 202-272-2004 or 202-272-2074 TTY or visit NCD’s award-winning Web site at http://www.ncd.gov.

Dorf on Schiavo

Michael Dorf has this very good Findlaw piece on the legal aspects of the Schiavo case. In it, he gives attention something that hasn't been much reported, but that folks following the case certainly noticed, that the first complaint filed by Theresa Schiavo's parents contained claims that were much, much, weaker than the claims in the amended complaint. The frivolousness of the first complaint may well have led the courts to be far more skeptical of the amended complaint and give it less attention than perhaps it was due.

Schiavo Update

See this report from SCOTUSBlog. Looks like the federal appeals are over.

Schiavo Update

SCOTUSBlog has the latest on the Eleventh Circuit proceedings.

Latest Schiavo Opinion

Howard Bashman at How Appealing has posted the district court's latest opinion in the Schiavo case, issued this morning, here. The district court denied the renewed request for a TRO. So it looks like the case goes back to the Eleventh Circuit.

Third Circuit on Integration Mandate

Yesterday, the Third Circuit issued its opinion in Pennsylvania Protection and Advocacy, Inc. v. Pennsylvania Dep't of Pub. Welfare. The court's decision elaborates on the requirements of ADA Title II's "integration mandate," which the Supreme Court held in the Olmstead case to require deinstitutionalization of individuals with disabilities in certain circumstances. Yesterday's Third Circuit case involved a case brought on behalf of residents of South Mountain Restoration Center, a state nursing facility for individuals with psychiatric disabilities, who contended that the state did not have a sufficient plan in place to move them to more integrated settings. After a very useful discussion of what Olmstead requires, the Third Circuit held that the district court had erred in granting summary judgment to the state. In particular, the court of appeals concluded that the district court had erroneously treated the state's short-term budgetary constraints as eliminating the integration duty, and that there was no evidence that the state had made a "reviewable commitment to action" to move South Mountain residents to more integrated settings.

Latest on Schiavo

Theresa Schiavo's parents have filed a second amended complaint in the federal district court, plus a renewed request for a TRO. The district court is holding a hearing on that request right now, as far as I can tell. Here's SCOTUSBlog's report.

Supreme Court Denies Schiavo Parents' Stay Request

See this CNN story.

Update: Here's SCOTUSBlog's coverage. Note that Justice Kennedy, the Circuit Justice for the Eleventh Circuit, referred the stay application to the full Court, and the full Court denied the stay. So this really exhausts Theresa Schiavo's parents' options on the TRO application they filed Monday (though I suppose they could file a renewed TRO/PI application in the district court on the basis of the new claims in their amended complaint that were not before the district court when it denied the first TRO application).

Schiavo's Parents File Motion for Stay in Supreme Court

You can access the stay application here. SCOTUSBlog has coverage here.

Harriet Johnson on Schiavo Case

Disability rights lawyer and activist Harriet Johnson has this piece in Slate discussing the Schaivo case. It's a really powerful piece that I hope everyone -- regardless of their ultimate view of the wisdom of the law Congress passed Sunday night -- reads.

Tennessee v. Lane Settled

See this article in the Nashville City Paper. (Disclosure: I was one of Lane's counsel in the Supreme Court.)

En Banc Denied in Schiavo Case

See this post on How Appealing (and this one) for the latest.

Rulli & Leckerman on Poverty, Disability, and ADA Title I

New on Westlaw: Louis S. Rulli & Jason A. Leckerman, Unfinished Business: The Fading Promise of ADA Enforcement in Federal Courts Under Title I and its Impact on the Poor, 8 J. Gender Race & Just. 595 (2005). From the introduction:

In this article, we explore the relationship between enforcement of the ADA in federal courts and the reasons that the ADA has not, so far, been as successful in opening the doors of the workplace as many had hoped. In doing so, we emphasize how the ADA's failure to live up to its potential in this respect has had, and will continue to have, great ramifications for people who are poor. We have divided the article into two parts. Part I analyzes the general goals of the ADA and the success that the ADA has had in achieving those goals. We begin our analysis by discussing Professor Thomas Stoddard's thoughtful framework for analyzing legislation in which he identified the narrow rule-shifting capacity and the much broader culture-shifting capacity of law. We conclude that the ADA was intended to be culture-shifting. Next, we measure the success of Title I and the other provisions of the Act in achieving this goal and conclude that the ADA, mainly due to the failure of Title I to play its part, has only partially begun to fulfill its culture-shifting purpose and likely will not be able to achieve this ultimate goal without substantial change. We then address why Title I's contributions to a culture shift have failed to materialize. In doing so, we focus heavily on judicial outcomes in filed cases under Title I. We compare our findings with those of other published studies assessing reported cases under Title I and conclude that, year after year, employers continue to win in 92% to 97% of cases that reach a final judicial outcome. We close the first part of our article by examining the impact that such one-sided outcomes have on the willingness of lawyers to undertake new federal litigation under Title I. Relying on current statistical evidence, we conclude that lawyers are quickly retreating from Title I enforcement in our federal courts.

In the second part of the Article, we look more closely at the nexus between disability and poverty and ask whether the poor are able to confront discrimination in the workplace by turning to the federal courts. We discuss the special problems that the poor face in obtaining access to counsel and in trying to litigate on their own. Once again, based on statistical evidence, we conclude that poor people with disabilities have largely turned away from federal courts as a means of enforcing their rights under Title I.

Finally, in an epilogue, we summarize our findings and offer some suggestions that, if adopted, might bring us closer to the day when culture-shifting change arrives in the workplace for people with disabilities.

My recent work has a somewhat different take on these problems, but the problems are certainly important.

Silvers on "Misrecognition" and ADA Accommodations

New on Westlaw: Anita Silvers, Protection or Privilege? Reasonable Accommodation, Reverse Discrimination, and the Fair Costs of Repairing Recognition for Disabled People in the Workforce, 8 J. Gender Race. & Just. 561 (2005). From the introduction:

Recent Supreme Court decisions suggest that accommodating disabled workers under the Americans with Disabilities Act (ADA) may impose misrecognition costs on their nondisabled peers. Historically, disabled people have suffered misrecognition through lack of accommodation to their differences. Yet, replacing the misrecognition of disabled people as a group with the misrecognition of individual nondisabled people also is not fair. The possibility that accommodating a disabled employee may withdraw preferment from nondisabled employees could be a defense for an employer sued under Title I of the ADA. By conceptualizing reasonably accommodating disabled workers as a shift of preferment from nondisabled to disabled individuals, the Court not only sets up the disabled for resentment from fellow workers, but also targets for failure the policy of directing employers to respond affirmatively to disabled workers' differences.

This article argues that programs designed to remedy the misrecognition of one group need not discriminate against individuals who are not members of the group. An alternative strategy for dislodging misrecognition exists. Ideas originally developed to address ethnic minorities' rights within the philosophical framework of the politics of recognition provide a framework for differentiating fair from unfair approaches to accommodating disabled people's differences. What is important, from an egalitarian point of view, is determining when differential treatment is privileging and when it is not. What distinguishes fair from unfair remedies, according to this point of view, is whether the remedy redresses bias by sharing recognition among more kinds of people in a more diverse workforce, or instead by shifting recognition from nondisabled to disabled workers. This article argues that the Court's Title VII Civil Rights jurisprudence evokes a similar distinction between sharing and shifting recognition. The distinction between sharing and shifting marks the difference between acceptable and unwarranted affirmative accommodation of minority group differences.

This article extends the distinction between programs that share, and programs that shift, recognition to resolve the dilemmas of resentment and misrecognition costs that an employer otherwise could cite to defend against certain charges of disability discrimination.

Lederman on Developments in the Schiavo Case

Over at SCOTUSBlog, Marty Lederman posts here on developments in the Schiavo case, including the 11th Circuit's 2-1 decision affirming denial of the TRO, and the amended complaint filed by Theresa Schiavo's parents.

Mary Johnson on the Schiavo Case

Disability rights activist and author Mary Johnson has this op-ed in today's San Francisco Chronicle on the Schiavo case. A taste, that gives the essence of her argument:

"It's one thing to refuse a feeding tube for ourselves, but it's quite another when someone else makes that decision," says Diane Coleman, head of Not Dead Yet, a national disability-rights group. "Disability groups don't think guardians should have carte blanche to starve and dehydrate people with conditions like brain injury, developmental disabilities -- which the public calls "birth defects" -- and Alzheimer's. People have the right not to be deprived of life by guardians who feel that their ward is as good as dead, better off dead or that the guardian should make such judgments in the first place.

More than two dozen national disability-rights groups -- including the American Association for People with Disabilities, the National Coalition on Self-Determination, Self Advocates Becoming Empowered and the World Institute on Disability -- have been worried about the Schiavo case. Many have been following this case for years, feeling that crucial questions remain unanswered. The case echoes other, less public ones: It's a rare week that passes without some report of a spouse killing his or her elderly mate, or parents ending the life of their disabled child. Is it any wonder disability- rights activists are alarmed? Guardians too often value the life of their ward far less than the ward values his or her own life.

More Althouse on Schiavo

As yesterday, Ann Althouse has a couple of great posts on the Schiavo case (here and here). I don't always agree with what Prof. Althouse writes on her blog -- sometimes I really disagree -- but these posts are among the most thoughtful treatments I've seen of the case. There is, in my opinion, no good argument that the statute is unconstitutional. But that doesn't mean the statute is a good idea, or that the interests of anyone but some politicians are well served by the process by which the statute was enacted (and the way this family's tragedy has been and is going to be flogged for partisan purposes). For a good introduction to some of the hypocrisy we've seen on this issue, see the Center for American Progress's "Progress Reports" from yesterday and today.

Opinion Denying TRO in Schiavo Case

The federal district court's opinion denying a TRO in the Theresa Schiavo case appears here. The court assumed that the federal statute enacted yesterday was constitutional, but concluded that Schiavo's parents had no substantial likelihood of succeeding on the merits of their claims that the state-court process violated Schiavo's constitutional and federal statutory rights.

Althouse on Schiavo

Wisconsin law professor and federalism guru Ann Althouse has interesting posts on the Schiavo case here and here.

NYT on Proposed Deaf Town

Howard Bashman, who obviously stays up later than I do, points me to this article, which begins:

Standing in an empty field along a wind-swept highway, Marvin T. Miller, who is deaf, envisions the town he wants to create here: a place built around American Sign Language, where teachers in the new school will sign, the town council will hold its debates in sign language and restaurant workers will be required to know how to sign orders.

Nearly 100 families - with people who are deaf, hard of hearing or who can hear but just want to communicate in sign language - have already publicly declared their intention to live in Mr. Miller's village, to be called Laurent, after Laurent Clerc, a French educator of the deaf from the 1800's.

Planners, architects and future residents from various states and other countries are gathering at a camp center in South Dakota on Monday and through the week to draw detailed blueprints for the town, which could accommodate at least 2,500 people. Mr. Miller, who has been imagining this for years, intends to break ground by fall.

Readers of disability studies literature of course will see the parallels to the Martha's Vineyard described by Nora Groce in Everyone Here Spoke Sign Language -- a really great, short book.

Schiavo Bill Passed by Congress, Signed by President

See this NYT story. According to Marty Lederman, this is the text of the bill as enacted:

AN ACT

For the relief of the parents of Theresa Marie Schiavo.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO.

The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 2. PROCEDURE.

Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.

SEC. 3. RELIEF.

After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 4. TIME FOR FILING.

Notwithstanding any other time limitation, any suit or claim under this Act shall be timely if filed within 30 days after the date of enactment of this Act.

SEC. 5. NO CHANGE OF SUBSTANTIVE RIGHTS.

Nothing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States.

SEC. 6. NO EFFECT ON ASSISTING SUICIDE.

Nothing in this Act shall be construed to confer additional jurisdiction on any court to consider any claim related--

(1) to assisting suicide, or
(2) a State law regarding assisting suicide.

SEC. 7. NO PRECEDENT FOR FUTURE LEGISLATION.

Nothing in this Act shall constitute a precedent with respect to future legislation, including the provision of private relief bills.

SEC. 8. NO AFFECT ON THE PATIENT SELF-DETERMINATION ACT OF 1990.

Nothing in this Act shall affect the rights of any person under the Patient Self- Determination Act of 1990.

SEC. 9. SENSE OF THE CONGRESS.

It is the Sense of Congress that the 109th Congress should consider policies regarding the status and legal rights of incapacitated individuals who are incapable of making decisions concerning the provision, withholding, or withdrawal of foods, fluid, or medical care.

Molski Standing Opinion

Last Monday (but just out now on Westlaw), Judge Carney of the U.S. District Court for the Central District of California issued his opinion in Molski v. Arby's Huntington Beach, 2005 WL 608739 (C.D. Cal., Mar. 14, 2005). After Judge Rafeedie issued his first opinion declaring Molski a vexatious litigant back in December, Judge Carney issued orders to show cause in six cases brought by Molski that were pending before him at the time. Following briefing and argument from all parties, Judge Carney's opinion last Monday discharged the orders to show cause (and therefore allowed the suits to proceed). Judge Carney explained:

In response to the Court's Order to Show Cause, Defendants argue Mr. Molski's litigious activities demonstrate that his ADA claim in this case is brought in bad faith. Defendants assert that Mr. Molski did not visit the restaurant to eat and enjoy the food, but instead visited it to manufacture a lawsuit so he could extort a monetary settlement. According to Defendants, the Court should dismiss Mr. Molski's ADA claim for lack of jurisdiction and standing.

The Court, however, cannot dismiss Mr. Molski's ADA claim for lack of jurisdiction and standing at this early stage of the case. There is no legal authority to support the proposition that a District Court can dismiss an ADA claim on jurisdictional and standing grounds because of a plaintiff's motive for visiting a place of public accommodation. It simply does not matter, from a jurisdictional and standing point of view, what Mr. Molski's motivation was for visiting Arby's. All that matters is that Mr. Molski alleges he did visit the restaurant, he was denied full access to and enjoyment of the premises because of architectural barriers, and he would return to the restaurant if those barriers are removed. Mr. Molski clearly has pled these essential allegations in the Complaint he filed in this case. Therefore, regardless of whether Mr. Molski is a vexatious litigant out to extort a monetary settlement from Defendants, or whether he is a sheriff policing Defendants' restaurant to ensure compliance with the ADA, Mr. Molski has properly alleged standing to assert his ADA claim and this Court has jurisdiction over that claim.

This seems to me exactly right. If Molski is lying about having visited a restaurant or about the accessibility of the restaurant or any other material fact, reject his claims on the merits, sanction him, hold him in contempt, even prosecute him for perjury or false statements. But there's no legal basis for rejecting his claims simply because he brought a lot of them or because he visited restaurants with the purpose of bringing suits to force them into compliance with the ADA. The restaurants have an obligation to comply with this (15 year old) law, and if it's Molski's lawsuit that makes them comply they have nothing to complain about.

Linda Greenhouse Feature (!) on the Spector Case

Linda Greenhouse has written the "Practical Traveler" feature for tomorrow's NYT. It focuses on the issues raised by Spector (does the ADA apply to cruise ships), and can be found here.

NYT on Schiavo Maneuvering

The latest on Congress's effort to pass a law, limited to the Schiavo case, to permit a federal district court to engage in collateral review of the state-court judgment that led to withdrawal of her feeding tube, is here. The key grafs on the procedural maneuvers:

The Schiavo case was striking a particular chord among social conservatives because, they asserted, it showed the power and what Mr. Perkins called "the arrogance" of the judiciary involved in the case. They were all the more enraged on Friday, after a showdown between Congressional leaders and Judge George W. Greer of Pinellas-Pasco Circuit Court, the presiding judge in Ms. Schiavo's case since 1998. When the House and Senate failed to agree on legislation earlier in the week, House and Senate committees tried to block the removal by issuing subpoenas to Ms. Schiavo and her husband.

Judge Greer rejected those efforts, saying Congress had no jurisdiction in the case. After his ruling, the House committee made an emergency request to the Supreme Court to try to reinsert the feeding tube while pursuing appeals in lower courts, but the Supreme Court rejected the request, without explanation.

Until now, the House and Senate had been divided over how far to go in giving federal courts new jurisdiction over medical issues like those in the Schiavo case. Conservative House Republicans had raced through a bill that would apply to all "incapacitated persons" and transfer their cases to federal courts if all state legal efforts had been exhausted and they had not executed a living will. The Senate enacted a much narrower bill that deals only with Ms. Schiavo's case.

The changes reached in the compromise were intended to reduce objections by clearly spelling out that the legislation was not intended to set a new precedent. Though it applies only to Ms. Schiavo, the measure will also not be labeled a "private relief" bill to ease traditional House objections to passing bills for specific individuals. It is rare but not unheard of for Congress to act on behalf of individuals; lawmakers last session passed about a dozen such bills, most of them related to immigration.

In an effort to pass this bill, a series of procedural steps were initiated Saturday night, when the Senate met briefly and passed an adjournment resolution. That cleared the way for House and Senate leaders, whose members are scattered around the country and the world, on what was to have been a two-week recess, to call an emergency session.

The House will meet on Sunday to try and pass the new measure with the unanimous agreement of both parties. If an objection is raised -- and a Democratic congressman from Florida indicated Saturday night that he would object -- the House will then wait until immediately after midnight to try again. Should a roll call vote be demanded, members would have to be summoned back. But if the House is able to act immediately, the Senate is prepared to follow suit under special streamlined procedures that would not require most senators to return.

The Gimp Parade on Molski

The blog "The Gimp Parade" has this take on the Molski case. Most notable for my purposes is this excerpt:

In my hometown, both the local post office and the renovated screening rooms of the movie theater are inaccessible to me. To be clear, the only post office for miles around has no way for me to enter and no current plans to change because of the age and historic nature of the building. Dozens of other local businesses are inaccessible too, and this is not unique to this current residence of mine. Like other mobility-impaired individuals, when I consider going somewhere new -- when friends or family discuss a social outing with me -- the first consideration we must have is whether or not the place we wish to go is accessible. If it complies with the law. As often as not, we must alter our plans. If I decided to sue every business I came across that was truly violating the law just by failing to give me entrance into their front door (never mind restroom accessibility, which is equally important, really), I would not have to exert myself to become a serial plaintiff too. Noncompliance is everywhere.

AP on "Drive-By" ADA Lawsuits

See this article.

Dyson on Game Theory and Education

New on Westlaw: Maurice R. Dyson, Playing Games With Equality: A Game Theoretic Critique of Educational Sanctions, Remedies, and Strategic Noncompliance, 77 Temp. L. Rev. 577 (2004). The abstract:

In this article, Professor Dyson offers a game theoretic analysis of the strategic effect of coalition formation and coercive commitment on bargaining outcomes within contemporary educational policy. The author suggests, however, that the increasing strategic dimension of educational policymaking is not a favorable development for equity advocates. Rather, he contends that it leads to the marginalization of an equity agenda when suburban coalitions are able to routinely employ exclusionary cooperative strategies using race, class, and home ownership as key focal points in a sophisticated prisoner's dilemma. Professor Dyson rigorously examines how policy outcomes are strategically shaped by tactical avoidance and tacit cooperation of state and private market actors under the No Child Left Behind Act, the Individuals With Disabilities Education Act, and within controversial state school finance schemes. In this regard, it is significant that public choice theorists such as Dennis Meuller or Anna Kruger have long suggested that tactical behavior often creates significant waste. These various educational acts, for example, often lead to the expenditure of a large amount of resources for a relatively smaller number of privileged constituencies. Moreover, tactical behavior by elected officials in the form of strategic delay results in prolonged impasses in negotiations that ultimately harm and divide stakeholders. Furthering this unequal result is the strictly enforced localized control of school reform, sophisticated sorting and signaling techniques of school policies, and the selective capture of legislative power in a way not fully explained by public choice theory. This article, therefore, attempts to answer two key questions. First, using insights derived from applied game theory, how can advocates encourage suburbanites and legislators to fully cooperate with egalitarian educational policy measures? Secondly, how do we discourage the monopolization of distributed educational benefits and the tactical avoidance of equalizing measures? In the process of addressing these concerns, Professor Dyson suggests some novel but promising strategic approaches to advocacy that may yield positive results for disadvantaged communities and their strategic ability to extract pivotal civil rights concessions from educational policymakers.

The piece has some interesting discussion of the way richer white folks benefit from the IDEA, though I'm not sure the game theory analysis adds much to that discussion.

House, Senate Split Over Medicaid Cuts

See this article from today's New York Times, which article begins:

The House and Senate passed competing versions of a $2.57 trillion budget for 2006 on Thursday night. The two chambers provided tens of billions of dollars to extend President Bush's tax cuts over the next five years, but differed sharply over cuts to Medicaid, the government insurance program for the poor.

The votes, 218 to 214 in the House and 51 to 49 in the Senate, set the two chambers on a collision course. The House budget included steep cuts in Medicaid and other so-called entitlement programs. But in the Senate, President Bush's plans to reduce the explosive growth in Medicaid ran into a roadblock when lawmakers voted 52 to 48 to strip the budget of Medicaid cuts and instead create a one-year commission to recommend changes in the program.

I guess we'll see what happens in conference (though I've got a guess).

Progress Report on Medicaid Cuts

The Center for American Progress's daily "Progress Report" features the issue of Medicaid cuts here. Lots of links.

SCOTUSBlog on Cert. Petitions in Post-Lane Cases

See Kevin Russell's long post here.

Marcosson on the "Title VII-ization" of the ADA

New on Westlaw: Samuel Marcosson, Of Square Pegs and Round Holes: The Supreme Court's Ongoing "Title VII-ization" of the Americans with Disabilities Act, 8 J. Gender Race & Just. 361 (2004). From the introduction:

In this Article, I will explain first how the Court deployed the 43 million figure in Sutton and Williams, exploring in Section I the extent to which the Court's use of this number, and the statutory interpretations it has produced, distort rather than illuminate Congress's purpose and meaning. In Section II, I will propose an explanation for the Court's approach. The decisions in Sutton and Williams indicate that the Court, uncomfortable with what it sees as the ambiguity of the ADA's terms (and perhaps unsympathetic to the policy choices reflected in those terms), has embarked on a course of "interpreting" the ADA's key provisions so as to make the ADA resemble the Title VII template with which the Court is familiar and relatively comfortable. In Section III, I will test this thesis by assessing whether it fits the decision rendered by the Court in Barnett. As I will show, Barnett provides further evidence of the "Title VII-ization" understanding of the Court's work in ADA cases. Finally, in Section IV, I will explore a potentially significant counter-example to my thesis. The Court's decision in Chevron U.S.A. Inc. v. Echazabal did not follow and apply Title VII precedent to the ADA. Instead, the decision conflicts at multiple levels with the Court's 1991 decision in Automobile Workers v. Johnson Controls, Inc. Nevertheless, as I will explain, this one counter-example does not substantially undermine the "square peg" explanation for the Court's ADA case law. Ultimately, there is strong reason to believe the Court has embarked on a path that has led it to ignore crucial differences between the statutes, and to reduce the impact of those attributes Congress included in the ADA in recognition of the distinctive nature of disability discrimination.

Hubbard on the Major Life Activity of Caring

New on Westlaw: Ann Hubbard, The Myth of Independence and the Major Life Activity of Caring, 8 J. Gender Race & Just. 327 (2004). The introduction:

In some respects, sex discrimination and disability discrimination are variations on a theme: same struggle, different difference. Like non-disabled women, men and women with disabilities are stigmatized or devalued because they deviate from society's unspoken norm: a white, heterosexual, "able-bodied" male. They fight similar paternalistic and disabling assumptions about their "natural" weakness, dependency and (in)ability to participate equally in all of society's roles. Not surprisingly, feminist theory and disability theory have much to offer one another, reinforcing each other where their perspectives overlap, informing each other where their interests diverge.

In that spirit, this essay addresses questions of family care - needing and providing it - from both feminist and disability perspectives. It builds from a disability law objective: to enlist feminist scholarship to demonstrate that caring for others should be deemed a "major life activity" under the Americans with Disabilities Act (ADA). This would mean that an individual with an impairment that substantially limits her ability to care for her loved ones could qualify as "disabled," and therefore protected by the ADA. To that end, Part II analyzes and synthesizes feminist literature that establishes the critical role of caring in the perpetuation and flourishing of individuals, families, communities and society and its principal institutions.

That, in itself, is a valuable contribution. But lawyers, scholars and activists alert to the potential of interdisciplinary inquiry to achieve the law's transformative promise need not stop there. Feminist teachings about dependency needs and family caretaking responsibilities, along with feminism's success at creating public and political awareness of these issues, offer broader insights to challenge the social structures and cultural myths that perpetuate stereotypes and misconceptions about the concept and consequences of "disability." Several of these insights are discussed in Part III. We begin in Part I with the doctrinal framework for identifying major life activities under the ADA.

This is one of a series of recent pieces in which Hubbard has had very interesting things to say about the "major life activity" definition in the ADA. That recent body of work is, to my mind, among the best disability-law work being published in the law reviews these days.

Francis on Employment and Intellectual Disability

New on Westlaw: Leslie Pickering Francis, Employment and Intellectual Disability, 8 J. Gender Race & Just. 299 (2004). From the introduction:

This essay begins with an overview of the problem of employment for people with life-long intellectual impairments. It then argues for the importance of employment for people with cognitive impairments. Although a number of commentators have addressed the case for employment of people with disabilities generally, less has been said about employment of people with intellectual disabilities specifically. The essay then explores anti-discriminationism, welfarism, and assumptions about the structure of employment as explanations of why current ADA jurisprudence has left people with intellectual impairments largely unprotected. The analysis focuses on several recently reported decisions in employment discrimination claims brought by people with intellectual impairments. These decisions raise typical problems concerning employment discrimination for people with intellectual disabilities. In these cases, courts make assumptions about the structure of employment and what it means to be a qualified employee that disadvantage people with intellectual disabilities. This essay thus defends the third interpretation-- that courts have failed to understand the structure of work--as an unexplored possibility for many people with intellectual impairments: as long as anti-discrimination policy is seen as applying to individual employees and employers, people with intellectual disabilities remain at risk of clustering at the third vertex, erroneously and dishearteningly viewed as unqualified for employment they seek.

Third Circuit on Section 5 Basis for ADA Title II in Prison Context

Today, the Third Circuit issued this opinion in Cochran v. Pinchak. By a 2-1 vote, the panel held that Congress lacked power under Section 5 of the Fourteenth Amendment to apply Title II of the ADA to cases involving irrational disability-based discrimination in the prison context. Judge Alidsert wrote the majority opinion, joined by Judge Fisher. Judge Scirica wrote the dissent.

This decision opens up a 2-1 split in the circuits regarding the Section 5 basis for applying ADA Title II to prison conditions cases. Cert. petitions are currently pending in cases from the Ninth Circuit (in which the court of appeals ruled for the plaintiff) and the Eleventh Circuit (in which the court of appeals, like the Third Circuit here, ruled for the defendant) on that issue. (Disclosure: I'm one of the counsel for the private petitioner in the Eleventh Circuit case.)

State Medicaid Watch: Tennessee

See this article. An excerpt:

The cost of living with a disability could increase with possible TennCare cuts facing more than 320,000 people on the program.

''Most people don't realize they could be cut off,'' said Tony Garr, executive director of the Tennessee Health Care Campaign, headquartered in Nashville.

''A few disabled people who have Social Security will stay on the program but will be subject to the limits of the program that require a situation be a medical necessity, and that the provider gives what is least costly and only what is adequate,'' Garr said.

* * *

''I think it just baffles them (the people of Tennessee) that the governor will cut them off, but that is exactly what he wants to do,'' said Garr, who believes the biggest loss for TennCare recipients will be the loss of prescription drug coverage.

''Most people don't have the resources to pay for their medications,'' Garr said. ''Of the 1.3 million on TennCare, only 17,000 are twice above the poverty level. Most of the people, 121,000, are below poverty or near poverty.''

Voting Inaccessibility in Missouri

See this article, which begins:

Nearly a quarter of Missouri’s polling places were inaccessible to disabled voters, according to a survey conducted for the secretary of state’s office.

Of the polling places that were accessible, nearly half had at least one significant barrier to voting for the disabled, according to an analysis of the survey results by The Associated Press.

The results illustrate the obstacles disabled Missourians face when heading to the polls, said Kelly Anthony, director of the Missouri Disability Vote Project, led by Paraquad Center for Independent Living in St. Louis.

"We’ve got some hard, indisputable numbers on how inaccessible polling places are for people with disabilities, and this is something we’ve known as a community forever, but we’ve only known about it anecdotally," Anthony said.

Some of the "hard numbers":

An analysis of the results by the Missouri Disability Vote Project found that 20 of Missouri’s 114 counties have no polling places that are highly accessible. They also discovered that rural areas tended to have a higher number of inaccessible polling places.

Fear of Disability Discrimination in the UK

See this report, which begins:

More than a quarter of workers in the UK think their boss would be unlikely to help them to keep their job if they became disabled, a report has said.

The findings come from a MORI poll carried out for the Disability Rights Commission (DRC).

Researchers found that 28% of non-disabled employees thought their company would not make any adjustments to help them to stay at work.

But another survey of employers found most were willing to retain staff.

The fear of dismissal is worst among people who work for small companies - almost 40% thought it would be unlikely that they would keep their job after developing a disability.

When the DRC spoke to small firms, 85% said they would be flexible provided the employee had the right skills and enthusiasm.

NYT Editorial on Medicaid

See the editorial, entitled "Medicaid in the Cross Hairs," here. An excerpt:

Medicaid is performing a critical service that the public supports - making sure that poor children get proper medical care, that working families have health coverage and that old people get quality care. The driving force behind the recent upsurge in costs, according to an analysis by researchers at the Urban Institute, was a big increase in the number of people enrolled. The wobbly economy left more workers with incomes low enough to qualify for Medicaid and fewer employers offering affordable health coverage. That is hardly an indictment of Medicaid. The program was doing what it was meant to do, filling a gap for people in real need.

There is a difference between real spending cuts and simply moving the bills into a different account book. People's health needs won't disappear just because Medicaid stops paying for treatment. People will turn instead to hospital emergency rooms, adding to the huge burden of charity care at hard-pressed medical institutions. Medicaid itself is the ultimate victim of cost shifting. A great deal of its cost is due to Medicare's failure to cover some vital services for the elderly - particularly nursing homes. As a result, people of modest means routinely impoverish themselves on nursing home bills, until they qualify for Medicaid. When Medicare begins paying for prescription drugs for the elderly, states will continue to provide the bulk of the money for coverage for the elderly poor. Congress insisted on that to keep down the cost of the new program.

Despite loose talk about Medicaid providing Cadillac services when a Chevy would do, the program is extremely parsimonious in big ways. Most of its beneficiaries are in health maintenance organizations that are often shunned by better-off Americans. It typically pays hospitals and doctors far less than Medicare or private plans, making many doctors unwilling to accept Medicaid patients. Its spending per enrollee has increased more slowly than private insurance spending, and it delivers care more cheaply than a private plan. It's a pretty safe bet that few of the critics talking about overly generous benefits would be willing, in real life, to exchange health plans with a Medicaid recipient.

Third Circuit on Definition of Disability

The Third Circuit yesterday issued this opinion in Emory v. Astrazeneca Pharmaceuticals LP. In this ADA employment case, the district court had granted summary judgment to the defendant on the ground that the plaintiff's cerebral palsy did not constitute a "disability." The Third Circuit reversed. The court of appeals held that the plaintiff had presented sufficient evidence to create a triable issue on two theories: that his condition substantially limited the major life activity of performing manual tasks, and that it substantially limited the major life activity of learning. On the manual tasks theory, the court engaged in the following analysis:

So, while the District Court stressed that Emory could “operate a cleaning business, perform as a clown, counsel families as a mediator, and assist his community as a firefighter,” it ignored evidence that Emory cannot tie his shoes or necktie, open a jar, cut his nails, perform various household chores and repairs, remove heavy dishes from the oven, change a diaper, carry his children up the stairs, or cut his own meat with a knife and fork. These latter activities, which are but a few examples demonstrative of how very manually impaired Emory is, are “of central importance to people’s daily lives,” and Emory is either completely without ability or severely
restricted in his ability to perform them.

The crux of the inquiry lies in comparing the way in which Emory is able to perform activities, if at all, with the way in which an average member of the general population performs the same activities. An average person, for example, thinks nothing of getting dressed, whether or not the task includes buttons, zippers, laces or sleeves. For Emory, the act of dressing presents huge hurdles, some of which he can overcome through accommodations or the help of another person, and many of which he cannot. “That [a plaintiff], through sheer force of will, learned accommodations, and careful planning, is able to perform a wide variety of activities despite his physical impairments does not mean that those activities are not substantially more difficult for him than they would be for an unimpaired individual.” Ordahl v. Forward Tech. Indus., Inc.,
301 F. Supp. 2d 1022, 1028-29 (D. Minn. 2004). What a plaintiff confronts, not overcomes, is the measure of substantial limitation under the ADA.

Here too, AstraZeneca has offered evidence of Emory’s force of will, perseverance, and some learned accommodations; however, the fact that Emory has been able to become a productive member of society by having a family, working, and serving his community does not negate the significant disabilityrelated obstacles he has overcome to achieve, nor does it undermine his inability, or significantly restricted ability, to learn and perform numerous manual tasks of central importance to daily life.

On the learning theory, the court reasoned as follows:

Emory presented evidence in the record that he completed high school, but on a special education track; during his sophomore year of high school he was reading at a secondgrade level. He has had his I.Q. tested three times, with the highest score registering in the mid-eighties (the two other scored registered in the seventies), falling into the borderline range of intellectual functioning. Emory’s limitations interfere with his ability to read and process information, as well as basic math skills or the filling out of paperwork. Emory can complete exams only if given orally, and even then, requires additional time – this seems to be a result of both his own difficulty with reading and his inability to express himself in writing. Experience has proven that Emory is incapable of learning as do other employees, through manuals or brief instruction or training. Diagnostic tests administered over a span of years establish that Emory’s math, reading and cognitive skills are far below those possessed by average persons in the general population – test results reveal poor calculation and computational abilities, literacy skills which place him in the bottom of the first percentile according to one test, and a deficient learning curve.

I like the result in this case -- it's a welcome break from the more typical pattern of unduly narrow readings of the ADA's disability definition. But I can't say I'm thrilled by the congratulatory tone of "overcoming" that runs through the opinion. In some ways, though, it's inevitable that courts reading the ADA's definition of disability are going to interpret the term in the light of their own preconceptions about disability, including the idea that people with disabilities are either to be pitied or to be praised as courageous.

HealthLawProf Blog on Schiavo Developments

Thomas Mayo at the HealthLawProf Blog has this useful collection of recent developments in the Terri Schiavo case.

Mabbett on Disability Rights in the EU

Just out on SSRN: Deborah Mabbett, The Development of Rights-Based Social Policy in the European Union: The Example of Disability Rights. The abstract:

This article examines the development of non-discrimination rights in the EU, with particular reference to disability. It outlines the origins of Article 13 TEC, which extended the competence of the Community institutions to combat discrimination, and traces the history of other initiatives in the disability policy area. Programmatic and juridical methods of promoting equality are described and compared. The analysis considers both the different institutional obstacles to programmatic and juridical methods, and the different consequences for the substantive content of policy of pursuing programmatic and juridical approaches.

NYT on Killing Newborns with Disabilities

See this article, which begins:

Babies born into what is certain to be a brief life of grievous suffering should have their lives ended by physicians under strict guidelines, according to two doctors in the Netherlands.

The doctors, Eduard Verhagen and Pieter J. J. Sauer of the University Medical Center in Groningen, in an essay in today's New England Journal of Medicine, said they had developed guidelines, known as the Groningen protocol. The guidelines have been described in some news reports over the last several weeks, and the authors said they wrote their essay to address "blood-chilling accounts and misunderstandings."

"We are convinced that life-ending measures can be acceptable in these cases under very strict conditions," the authors wrote. Those conditions include the full and informed consent of the parents, the agreement of a team of physicians, and a subsequent review of each case by "an outside legal body" to determine whether the decision was justified and all procedures had been followed.

Stephen Drake, a research analyst at Not Dead Yet, an organization based in the United States that views euthanasia and assisted suicide as threats to people with disabilities, said "there's nothing surprising about the medical profession wanting to formalize and legitimize practices that have wide acceptance in the medical community worldwide," and added, "Obviously, we're against that." The Groningen protocol, he said, is based on "singling out infants based on somebody else's assessment of their quality of life."

Seventh Circuit Decides Odd IDEA Stay-Put Case

Yesterday, the Seventh Circuit issued this opinion in Casey K. v. St. Anne Community High School District No. 302. The case applies IDEA's stay-put rule to unusual facts. While in Eighth Grade, based on the settlement of a dispute between the parents and the school district over the proper educational placement, the plaintiff child was placed in a private school setting. Apparently, Illinois divides middle schools and high schools into separate school districts. When Eighth Grade ended, the plaintiff child thus became the responsibility of a new school district -- the local high school district. The new district argued that the private school was not the child's "current" placement once he left Eighth Grade, because the child was no longer assigned to the same school district, so the "stay-put" provision did not apply.

The Seventh Circuit, in a very sensible opinion by Judge Posner (and I'm not often heard to say that!), held that the private school placement, being the placement the kid was currently in at the time Eighth Grade ended, was his "current" placement; the stay-put rule thus applied. If Illinois placed middle schools and high schools in the same school district, there would be no doubt that the private school placement remained the child's "current" placement once he left Eighth Grade, and Judge Posner argued that the state's choice about how to organize its school districts shouldn't change that result. Judge Sykes dissented.

Molski/Frankovich Sanctions Opinion Issued

Judge Rafeedie of the Central District of California just issued his sanctions opinion in Molski v. Mandarin Touch Restaurant, 2005 WL 535357 (C.D. Cal. March 8, 2005). The opinion makes a strong case that Molski made a number of almost incredible allegations about injuries he had suffered at restaurants he sued. In some instances, he claimed to be injured at multiple establishments, separated by over 100 miles, in a single day; in others, he included in his the complaint boilerplate allegations that he experienced physical injury in a particular restaurant even though other paragraphs of the complaint alleged that he could not even get into the restaurant because the entrance was blocked by stairs. The opinion also makes a strong case that Molski's attorney, Franikovich, engaged in unethical conduct by, among other things, giving legal advice to unrepresented defendants he was suing. (The advice seemed to consist of: Settle now, because the price tag only goes up; and certainly don't hire your own lawyer.) The court then reached the following conclusion:

This Court has an obligation and a duty to protect the public from an unscrupulous practitioner. The record before the Court establishes that The Frankovich Group has engaged in a pattern of unethical behavior designed ultimately to extort money from businesses and their insurers. The Court believes that the record before it is sufficiently egregious to justify the suspension, or even disbarment, of the lawyers constituting The Frankovich Group. Accordingly, the Court has requested that the State Bar investigate the matter and consider disciplinary action if appropriate. In the meantime, the Court believes that the public can be adequately protected by a less restrictive and drastic measure: a pre-filing order that requires The Frankovich Group to seek leave of court before filing any new complaints under Title III of the Americans with Disabilities Act.

A pre-filing order is the least restrictive sanction that protects both the public and the courts. Some sort of pre-filing notice to the courts is necessary because of The Frankovich Group's history of filing lawsuits and then quickly settling the matter. If a court is not allowed to examine the complaint before it is served on the party, the matter may be settled and dismissed before the court has a chance to determine the issues of standing and jurisdiction discussed herein. Moreover, it is not sufficient merely to require Plaintiff Molski to seek leave of court before filing a complaint, because The Frankovich Group has demonstrated an ability to recruit additional serial plaintiffs who make nearly identical claims. Therefore, it is the order of the Court that The Frankovich Group, as presently constituted, and as it may hereafter be constituted, including all shareholders, associates and employees, is hereby required to file a motion requesting leave of court before filing any new complaints alleging violations of Title III of the Americans with Disabilities Act in the United States District Court for the Central District of California. Such a motion must include a copy of this order.

Based on the facts as described in the court's opinion, it's kind of hard to find fault with the result. Nobody should approve of unethical, sharp lawyering or filing complaints containing incredible allegations. And a preclearance requirement, in these limited circumstances, does seem narrowly tailored to prevent abuse of the judicial process.

But as I've said all along on this case, I think there's a bigger point here that shouldn't be lost. The lack of compliance with ADA Title III in this country is a scandal. The statute has been on the books nearly 15 years, but large numbers of retail stores and restaurants remain inaccessible to people with disabilities in every city in America. I don't have much sympathy for business owners who have been violating what is after all a federal law for so long but who want people with disabilities to give them notice before bringing lawsuits. We should all be on notice -- and we should have been for a decade and a half.

Nor do I think there's necessarily anything wrong with serial plaintiffs. The public accommodations title of the ADA does not authorize an award of money damages. Without that financial incentive, it's hard to find plaintiffs or lawyers who believe it worth their time to file ADA public accommodations suits. Even people who really were excluded from stores or restaurants that were really in violation of the ADA often will not want to go through the stress and hassle of an ADA suit if the best they can do at the end of the day is get a court to tell the defendant to go and sin no more. So the plaintiffs in ADA public accommodations suits are likely to be disproportionately ideological plaintiffs -- people who see it as in some ways their mission to make their communities accessible. Ditto for the lawyers. Such people are likely to file lots and lots of suits. There's nothing inherently suspect about that. One of the reasons why there's such scandalous noncompliance with the ADA's public accommodations title is because there's not a sufficient incentive for plaintiffs and lawyers to bring suits; the existence of ideological, even serial, plaintiffs helps a tiny, tiny bit to compensate for the underenforcement of the statute.

What makes this case different is that the plaintiff and his lawyer were not just suing under the ADA. They were also suing under state law, which (unlike ADA Title III) authorizes awards of damages -- though Judge Rafeedie's opinion suggests that the state-law damages claims were stretches here. The existence of a damages remedy obviously changes the calculus and makes extortionate litigation more of a threat. On the other hand, it also may provide a necessary incentive for meritorious suits. Without a damages remedy, the widespread noncompliance with ADA Title III is likely to continue. And, at the end of the day, it's the fact that so many stores and restaurants have failed to comply with the ADA that enables lawyers and plaintiffs like these to do what they are doing.

Businesses Come Together to Fight Disabled Lawsuit Abuse

See this story by that title on the website of Sacramento's News 10.

Colorado Supermarket Accessibility Suit

See the coverage here. For what it's worth, it's my sense that physical accessibility in supermarkets is a huge problem, so it's good to see ADA Title III used to address it.

Money Follows the Person Act Reintroduced in Senate

You can find the bill's text, as introduced by Senator Harkin and cosponsored by Senator Smith, here.

Fifth Circuit Issues En Banc Opinion in Pace

After a long wait, the Fifth Circuit finally issued this en banc opinion in Pace v. Bogalusa City School Board. The crucial issue on which the Court granted rehearing en banc involved the validity of the waiver of sovereign immunity that two federal statutes demand of state programs that receive federal funds: Section 504 of the Rehabilitation Act, which prohibits disability-based discrimination by any program or activity that receives any kind of federal funds; and the Individuals with Disabilities Education Act, which requires states that receive federal special-education funds to guarantee all children with disabilities a free appropriate public education and any related services that are necessary to give them access to school. The Supreme Court has held that Congress may demand that states waive sovereign immunity in exchange for receiving federal funds, but only if the condition is (among other things) voluntarily accepted by the state. The panel in Pace held that a state that accepted federal funds prior to the Supreme Court's Garrett decision in 2001 did not knowingly and voluntarily waive its sovereign immunity under Section 504 and the IDEA. Under the panel's cockamamie theory, before Garrett a state would not have known it had any sovereign immunity to waive, because the state would have thought its sovereign immunity had already been abrogated by the ADA. In other words, because the state thought it was getting something for nothing (federal funds without giving up sovereign immunity), it was unfair to hold the state to the plain terms of Section 504 and the IDEA, which clearly require states that accept federal funds to waive sovereign immunity. In so holding, the panel relied on, but extended, the Second Circuit's decision in Garcia v. SUNY Health Sciences Center, 280 F.3d 98 (2d Cir. 2001), which held that a state that accepted federal funds prior to the 1996 decision in Seminole Tribe did not knowingly and voluntarily waive its sovereign immunity under Section 504.

Prior to the panel opinion in Pace, no other court of appeals had followed Garcia on the Section 504 issue, while a number of courts of appeals had explicitly rejected Garcia's reasoning. In today's en banc decision, the Fifth Circuit brought itself back into the mainstream. The majority opinion (jointly written by Judges Davis and Weiner) holds that the only kind of knowledge necessary to make a sovereign-immunity waiver effective "is a state's knowledge that a Spending Clause condition requires a waiver of immunity, not a state's knowledge that it has immunity that it could assert. At bottom, we conclude that if Congress satisfies the clear-statement rule" -- that is, if Congress makes clear that acceptance of federal funds will be deemed a waiver of sovereign immunity -- "the knowledge prong of the Spending Clause waiver analysis is fulfilled." And the majority concluded that "during the relevant time period," Section 504 and the IDEA "put each state on notice that, by accepting federal money, it was waiving its Eleventh Amendment immunity."

Reaching the merits, the majority ruled that the plaintiff was not entitled to relief under the IDEA, and that his claims under the ADA and Section 504 were barred by issue preclusion.

Judge Jones, joined by five of her colleagues, dissented on the sovereign immunity question. Notably, the dissent seems to take the position that Tennessee v. Lane, which upheld the abrogation of sovereign immunity under Title II of the ADA where the statute is applied to guarantee access to courts, should not be extended beyond the access-to-courts context.

Machan: ADA is a "Bad Law"

Tibor Machan, who "holds the R.C. Hoiles Professorship in business ethics and free enterprise at Chapman University," has a very interesting take on the recent ADA-vexatious litigant controversy from a certain kind of libertarian perspective. A taste:

But here is the lesson: Once a bad law gets on the books, there is probably no way to nail anyone for abusing it since one can only abuse what is generally good. The ADA law is generally bad, not because disabled people do not often deserve a break -- although, again, this may not include people who go out of their way to engage in risky conduct or, especially, those who act recklessly. It is bad because it is coercive, conscripting vendors to benefit the disabled, something no one deserves, not even for the sake of providing such help.

Ninth Circuit Reinstates HIV Suit Against American Airlines

See this article by that title in the Recorder. A few excerpts:

The 9th U.S. Circuit Court of Appeals reinstated a lawsuit Friday against American Airlines filed by three California men who claim they were denied flight attendant jobs because they're HIV-positive.

The unanimous appellate panel – 9th Circuit Judges Raymond Fisher and Susan Graber and 7th Circuit Senior Judge Richard Cudahy, sitting by designation -- sent the case back to district court.

The 9th Circuit panel wasn't charged with determining whether the airline violated state and federal anti-discrimination laws. Nevertheless, the judges lambasted the airline in their ruling and said American's hiring practices appear at odds with the Americans With Disabilities Act and California's Fair Employment and Housing Act, as well as the state constitutional right to privacy.


* * *

Schneider said the 9th Circuit opinion sets out a standard under which potential employers can ask applicants about their medical status.

None of the men disclosed their HIV status until the end of the application process. All had received conditional job offers. After blood tests uncovered elevated "mean corpuscular volumes," which can indicate a variety of medical conditions, the airline asked the applicants if they were HIV-positive. When each answered yes, American Airlines rescinded their job offers.

The airline told the men that the offers were retracted because they did not disclose their HIV status earlier in the application process, essentially lying.

But the 9th Circuit panel explained that anti-discrimination laws allow people to keep their medical conditions private until just before getting hired.

"Many hidden medical conditions, like HIV, make individuals vulnerable to discrimination once revealed. The ADA and FEHA allow applicants to keep these conditions private until the last stage of the hiring process," according to the opinion, which was written by Judge Fisher. "Applicants may then choose whether or not to disclose their medical information once they have been assured that as long as they can perform the job's essential tasks, they will be hired."

The judges said the job offers were "not real" because the applicants were also still undergoing background checks along with the medical screening. Thus, they should not have been penalized for refusing to disclose their HIV status, according to the judges.

The Ninth Circuit's opinion can be found here.

Accessibility on the Williamsburg Bridge

See this article from the NY Daily News, which begins:

It's not just bicyclists who are calling on the city to remove allegedly dangerous expansion joint covers on the Williamsburg Bridge bike and pedestrian path.

Now advocates for the disabled have joined the fray - charging the pathway violates federal accessibility guidelines for people with disabilities.

"These expansion joint covers clearly violate the Americans with Disabilities Act," blasted James Weisman, head attorney for the United Spinal Association, the leading disability rights group in the city.

Patmore on Australian Disability Law

New on SSRN: Glen Patmore, The Disability Discrimination Act (Australia): Time for Change, 24 Comp. Lab. L. & Pol'y J. 533 (dated 2003, but published 2004). The abstract:

The Australian Parliament enacted the Disability Discrimination Act ("DDA") in 1992. This article explores how effectively the DDA eliminates discrimination against people with disabilities in the employment context. It addresses some key problems with the DDA by considering the need for reform of the purposes, definitions, prohibitions, exemptions, and remedies of disability discrimination provided for in the Act. One of the aims of the article is to assess some key findings and recommendations of a Productivity Commission's report, entitled, "Review of the Disability Discrimination Act 1992," taking legislative developments and judicial interpretation of the Act into account. The paper concludes that there is a compelling case for reform of the key provisions of the DDA to better promote the protections against employment discrimination and enhance the equality of people with disabilities in the employment context.

Secunda on Bullying and the IDEA

New on SSRN: Paul Secunda, At the Crossroads of Title IX and a New 'IDEA': Why Bullying Need Not Be A 'Normal Part of Growing Up' for Special Education Children, 12 Duke J. Gender L. & Pol'y (forthcoming). From the abstract:

Indeed, research studies and anecdotal evidence suggest that those victimized by bullying are typically students who do not fit stereotypical notions of what it is to be masculine or feminine, athletic, cool, or in at school. Classic examples include not only children who are smaller, younger, gay or effeminate, obese, or from different countries, but also children who look and/or act differently from other children as a result of physical and/or mental impairments (i.e., special education children). It is the legal ramifications for verbally and physically abused special education children, mostly by members of their own gender, upon which this article focuses. Presently, most observers, and even the Supreme Court in its seminal student-on-student sexual harassment decision, Davis v. Monroe County Bd. of Educ., have yet to undertake a sufficient evaluation of the complex legal issues surrounding the bullying of special education children. To date, commentators and lower courts have primarily focused on the Title IX implications for students subject to same-sex harassment by other students and then, mostly in the context of harassment based on the actual, or perceived, sexual orientation of the student. Yet, when another student bullies a special education child based on that child's appearance, behavior, or failure to live up to stereotyped notions of gender, it is necessary to consider the intersection between Title IX and the primary, federal special education law, the Individuals with Disabilities in Education Act (IDEA). Under IDEA, children with disabilities are entitled to a free and appropriate education (FAPE) in the least restrictive environment practicable. In turn, a FAPE includes special education and related services which are reasonably calculated to permit a child with a disability to benefit educationally. Consequently, actions taken by school districts to alleviate an unpleasant bullying situation for a special education child in order to comply with Title IX's dictates concerning peer sexual harassment may inadvertently also violate a child's right to a FAPE by altering that child's placement and/or programs. In order to prevent placing school officials in this legal Catch-22, a legal model needs to be developed which ties the overlapping statutory frameworks of Title IX and IDEA together in one hybrid legal cause of action. Alternatively, if Title IX's stringent legal standards for peer sexual harassment cannot be met in a given bullying case even after incorporating IDEA concepts, IDEA may also provide legal bases for special education children to obtain monetary damages against school officials who have failed to protect them from bullying, which, in turn, has violated that child's right to a FAPE under IDEA. With these issues at the forefront, this article advocates two IDEA-based legal models to increase the legal protections available for special education children who are the subject of same-sex harassment/bullying at school. The first proposal attempts to provide this additional protection by strengthening the Davis Title IX framework for peer sexual harassment at school by incorporating IDEA concepts directly into that framework. Under this hybrid model, a school is liable for the same-sex harassment of a special education child where (1) the school had actual notice of the harassment; (2) the character of the harassment was severe, pervasive, and objectively offensive; (3) the school's response to the known harassment was clearly unreasonable in light of its obligations under Title IX and IDEA; and (4) the student was denied a free and appropriate education in the least restrictive environment practicable or otherwise denied access to appropriate educational opportunities and benefits as a result of the harassment. Next, after addressing the lack of effective legal theories of recovery outside the Title IX context because of various procedural and substantive limitations on such claims, this article sets forth a second legal model. The second legal model involves an IDEA-based Section 1983 action for money damages, while at the same time recognizing that special education plaintiffs should normally have to first exhaust their administrative remedies under IDEA before bringing such a claim.

Strange and Troubling Florida Case

Just out on Westlaw: the opinion of the Florida Court of Appeals for the Fifth District in Department Of Corrections v. Harrison, 2005 WL 430356 (Feb. 25, 2005). In this criminal case, the trial court issued an order of probation that required the defendant to undergo sex offender treatment. The defendant, who has a hearing impairment, said that he could not effectively undergo such treatment without an interpreter, so the trial court ordered the state department of corrections to pay for an interpreter. The Department of Corrections appealed that part of the trial court's order. Sustaining the Department of Corrections' appeal, the appellate court ruled that the trial court's order violated the separation of powers doctrine by requiring DOC to pay for an interpreter. The court did suggest that if the defendant ultimately can't afford an interpreter that he may raise a claim under the ADA or the Constitution, but it seems to me quite troubling that the DOC would resist paying for an interpreter that was necessary for a defendant effectively to comply with a condition of a criminal sentence.

Krueger on Disability Insurance and Social Security Privatization

The prominent economist Alan Krueger has this "Economic Scene" column in today's New York Times. The column begins:

DISABILITY insurance could be the Achilles' heel of President Bush's efforts to carve personal accounts out of Social Security (although there is a lot of competition for that distinction). The program faces challenges that are at least as daunting as those on the retirement side of Social Security, and fitting the existing program into a system of personal accounts could have serious unintended consequences.

Blunt’s budget backs disabled in Missouri into tough corner

See this op-ed column by that title in the Columbia Daily Tribune. The first few grafs:

Gov. Matt Blunt’s first budget is his million-dollar baby.

The brutal document landed on the legislative canvas with the thud of a boxer going down for the count. It’s not pretty, but that doesn’t bother the governor, who promised his constituents a government that would cut back and not raise taxes. Having promised not to take money from the mouths of school babes, Blunt had no choice but to target the biggest heavyweight of all: Medicaid.

He slashed with impunity, lowering qualifying levels to those who don’t even have the federal poverty line in sight. He added co-pays and cut entire programs. His targets were the fringes of society, folks whom most of us don’t want to think much about anyway. The elderly. The poor. The disabled.

EdWeek on IDEA Cert. Grant

See this article on Schaffer v. Weast, on which the Court granted cert. last week. Here's an excerpt that gives a sense of the parties' arguments:

In their own brief to the Supreme Court, the Schaffers say many parents find the process of pursuing administrative hearings “too daunting and simply capitulate.” They cite a 2003 report from the U.S. Government Accountability Office, the audit arm of Congress, that said that more than 11,000 hearings were requested in 2000, but that only 3,000 were held.

“Placing the burden on the parents significantly strengthens the hand of often-intransigent school district bureaucracies,” the parents’ brief says.

But the district says people who sue under federal statutes that prohibit discrimination based on race, sex, and age must bear the burden of proof, and it is reasonable for parents of children with disabilities to meet a similar legal standard.

“It is highly unlikely that a parent who believes that his or her child is not receiving sufficient services will forgo a challenge merely because of an evidentiary rule that is common to most litigants,” the district’s brief says.

Disabling the ADA, One Nominee at a Time

See this op-ed by that title in the San Francisco Chronicle. The first couple of grafs:

In 1990, the first President Bush signed the Americans with Disabilities Act and proclaimed, "Let the shameful wall of exclusion finally come tumbling down."

Fifteen years later, George W. Bush is apparently rebuilding that wall by undermining the ADA through judicial appointments. Bush is nominating judges who are outspoken, if not radical, in their opposition to the ADA and the protections for people with disabilities. In an ironic Republican twist, if these judges had their way, civil rights for people with disabilities would regress, prohibiting full participation in society and putting more people with disabilities on government assistance.

A case in point is the nomination of Terrence W. Boyle to the U.S. Court of Appeals in Richmond, Va. His confirmation hearings in Washington begin this week before the U.S. Senate Judiciary Committee, on which Sen. Dianne Feinstein, D-Calif., sits. Were Boyle to be confirmed, it would further erode the protections people with disabilities have enjoyed under the ADA.

Shepherd on the Schiavo Case

New on SSRN: Lois Shepherd, Shattering the Neutral Surrogate Myth in End-of-Life Decisionmaking: Terri Schiavo and Her Family. The abstract:

In the Terri Schiavo case, different family members who want the legal authority to make decisions for Terri Schiavo have sought different treatment options - with results as opposed as life and death. Had the case not come before the courts, Michael Schiavo, Terri's husband, would have had Terri's feeding tube removed long ago; Terri's parents, Mary and Robert Schindler, if either had been named surrogate in Michael's stead, would continue feeding her indefinitely. Recognizing, as the Schiavo case highlights, that who among family members speaks for the patient can determine the course of treatment or non-treatment for a patient, it is necessary to turn renewed attention to the question of why families, whether we define them as spouses or parents, are involved in the end-of-life decisionmaking of their relatives. Are they merely a representative or even fiduciary of the patient or are they stakeholders in their own right? Do we look to family members as surrogates because they ensure a sounder process, a neutral process, for determining patient preferences and interests, or do we look to family members as surrogates because we recognize that families want to be (and perhaps should be?) involved? This paper argues that some deference to family members' own interests can be justified on the grounds of a broad notion of patient self-determination, but some degree of deference might also be justified out of respect for family members' own interests. Our law should not demand strict neutrality of these family members, but should acknowledge that their interests may have value as well. At the same time, there must be limits: the family's preferences and interests should not be allowed to overshadow those of the patient.