Thursday, June 30, 2005
Wednesday, June 29, 2005
Proposed New IDEA Regulations
NDNY Holds NY DOCS Sick-Leave Policy Unlawful
Rehearing En Banc Denied in ADA v. FIU
Switching Sides, U.S. Backs District in IDEA Case Before Supreme Court
I'll link to a copy of the brief when it's on the SG's website.
The Bush administration has reversed an earlier stance taken by the federal government on a legal appeal dealing with the burden of proof in special education cases, choosing to support the position taken by a Maryland school district in a case pending before the U.S. Supreme Court.
In a case that could shape the outcome of special education disputes across the country, the Supreme Court will decide in Schaffer v. Weast (Case No. 04-698) which side bears the burden of proof in disputes over children's individualized education programs, or IEPs. The question is whether parents need to prove that IEPs are inadequate, or whether school systems must show that the programs sufficiently meet students' needs.
In 2000, while the case was pending in a federal appeals court in Richmond, Va., the Department of Justice under President Clinton filed a brief arguing that school districts bear the burden of proving that the programs they develop are the best ones for particular students.
But in a friend-of-the-court brief filed with the high court on June 24, U.S. Solicitor General Paul D. Clement said that after a "a careful review" of administrative law and of the changes to the Individuals with Disabilities Education Act approved by Congress late last year, the government was "now of the view" that the burden of proof should fall on the party seeking relief in an IDEA administrative hearing.
Tuesday, June 28, 2005
The ADA is an Issue in the Virginia Gubernatorial Race
I never thought I'd see the day.
Democratic gubernatorial candidate Tim Kaine today accused Republican rival Jerry Kilgore of undermining the rights of people with disabilities.Kaine says that when Kilgore was the state's attorney general, he challenged the constitutionality of the Americans with Disabilities Act. Kaine says Kilgore took a freelance position that was not the position of the state in his 2003 challenge.
Kilgore replied by noting that Kaine served for years on Richmond's City Council and as mayor while dozens of public schools never met A-D-A requirements by providing such items as ramps, handicapped-accessible elevators, toilets and parking.
Kilgore also said his involvement in the A-D-A court challenge was a necessity to protect the state's sovereign immunity and avoid thousands of possible lawsuits.
Settlement of Cook County Medicaid Suit
State officials agreed Monday to a multimillion-dollar upgrade in basic medical care given to Cook County's poorest children.
In settling a 13-year-old lawsuit filed in U.S. District Court, the state agreed to provide greater reimbursements to doctors who accept Medicaid patients.
Many doctors turn away new Medicaid patients, because the amount physicians get for providing that care is far less than what they would get from private insurance companies, the suit claimed.
Diebold Touch-Screen Voting Machines and People with Disabilities
The Diebold voting machines being proposed for Volusia County don't meet the requirements of the Help America Vote Act. The shocking part is, they don't have to. It's only 2005 and the law doesn't go into effect until Jan. 1, 2006, so vendors are able to sell, this year, whatever type of voting systems they can get away with selling.
As I write this, states and counties across our nation -- including Volusia County -- are being sold a bill of goods with respect to their purchases of new voting-machine systems to meet the requirements of HAVA, which include accessible voting machines for all voters. Voting-machine vendors are having a heyday because they have recognized a loophole in HAVA that is large enough to drive a truck (or push a voting machine) through.
Unwitting states and counties, believing that the systems being presented to them are HAVA-compliant, are being duped. Unless vendors offer a specific guarantee of HAVA compliance, hundreds of millions of dollars in taxpayers' money may be squandered on equipment that will have to be scrapped or retrofitted at taxpayers' expense after Jan. 1, 2006.
While the proposed Diebold touch screens may provide accessibility for the blind, they are impossible to use for people with many other types of disabilities, including quadriplegics or those with severe manual impairments.
Latest Irish Disability Law Update
RETIRED High Court Judge Fergus Flood last night pleaded with the Government to scrap the Disability Bill, which is due to complete all stages through the Dáil today.
Justice Flood has chaired the Commission on the Status of People with Disabilities.
Mr Justice Flood said the Government could still withdraw the bill, which he said was flawed, and replace it with one which would equalise the situation between disabled people and everybody else.
He said: “This bill fails in that, an opportunity lost.”
And see this editorial from the same paper, which begins:
THERE is now a compelling case for President Mary McAleese to refer the Government’s skewed Disability Bill to the Supreme Court so that the constitutionality of this highly unpopular piece of legislation can be submitted to the acid test.
There are strongly-held views that in its present shape it will result in a new and dangerous form of discrimination on economic grounds being written into the Constitution, effectively denying the rights of children to be treated equally.
Special Ed Changes Concern Educators
Monday, June 27, 2005
Update on Pennsylvania IDEA Class Action
Pennsylvania is edging closer to implementing a statewide monitoring system to ensure that 250,000 children with disabilities are learning in regular classrooms whenever it's possible.
Pennsylvania Secretary of Education Francis Barnes told a federal judge in Philadelphia Friday that the Pennsylvania Department of Education has the resources for such a system, which would be in place for five years.
The monitoring system is part of the provisional settlement agreement of an 11-year class-action lawsuit between the PDE and 12 Pennsylvania families, including three from Bucks.
PDE officials and parents on the plaintiff's side spoke in support of the agreement Friday at a public hearing before U.S. District Judge Eduardo Robreno, who said he may decide on the settlement in the coming months.
Known as the "Gaskin Case," the suit was filed by 12 families who said their children were denied the right to a free public education in regular classrooms with the necessary services whenever it was possible. The federal Individual with Disabilities Education Act protects that right.
Religious Schools Look to Fill Special-Education Needs
Nice Piece on the Arizona Center for Disability Law
More Irish Disability Law Smackdown
The Government preparing to ram its contentious Disability Bill through the Dáil before the summer recess.
Hopes of scuppering the legislative package are now focused on convincing the opposition parties to tear up and rewrite aspects of this skewed law if they should succeed in forming a coalition administration after the next general election.
* * *
It would be difficult to dispute claims that the bill is extremely restrictive in its present form since it will base the entitlements of disabled people purely on the availability of funding. Shamefully, the concept of rights-based legislation has been trampled upon by the coalition.
Going on past experience, there can be little confidence that official attitudes will change given the State’s persistent record of stone-walling justifiable demands made on behalf of people with mental or physical disabilities. The hard-hearted nature of this bill does not suggest they will be treated in a more caring manner by the present administration.
Friday, June 24, 2005
E.D. Pa. Holds Title II's Reasonable Modification Requirement Doesn't Apply to Demands for Wheelchair Accommodations on Trains
Monday, June 20, 2005
S.C. Suit Challenges Treatment of Prisoners with Mental Illness
On Monday a Columbia advocacy group sued the state and the Corrections Department.
People with Disabilities said the prison agency doesn't properly care for mentally ill patients. The lawsuit alleges the prison system inflicted cruel and unusual punishment on prisoners in its custody.
The plaintiffs include three unidentified inmates in addition to the advocacy group. The group asked the court to order the state to design and pay for an adequate system of treating mentally ill inmates.
State prisons director Jon Ozmint did not immediately respond to questions Monday. The lawsuit also claimed prison guards aren't properly trained to handle mentally ill patients and that medication is often delayed or discontinued altogether.
While I Was Away, Part IV: C.D. Cal. Decides to Enact ADA Notification Act
While I Was Away, Part III: Seventh Circuit Holds MMPI is a Medical Examination
While I Was Away, Part II: GVR in Klingler
Sunday, June 19, 2005
While I Was Away, Part I: 4th Circuit Upholds Title II as Applied to Education
Wednesday, June 08, 2005
Brief Blog Hiatus
Tenth Circuit Holds Reasonable Accommodation Required in "Regarded As" Cases
Tuesday, June 07, 2005
Employment of Disabled Low in Japan
Disabled people employed in the private sector made up 1.46% of its total workforce last year, falling below the minimum rate of 1.8% set by the government, according to a government white paper released Tuesday. The number of disabled people employed by private companies totaled 257,939 as of June last year, up by 10,846 from a year earlier, the report said.
According to a 2003 survey by the Ministry of Health, Labor and Welfare, the average monthly wage of disabled people working at vocational aid centers totaled 22,000 yen, while their wage at private companies came to 250,000 yen — highlighting considerable wage disparities among disabled people. There are 6.5 million people in Japan with either physical, mental or intellectual disabilities, accounting for about 5% of the total population, the report said.
News on Spector
Monday, June 06, 2005
Partial but Significant Win for the Plaintiffs in Spector
Justice Kennedy wrote the lead opinion. In a portion that wrote for the Court (joined by Justices Stevens, Souter, Ginsburg, and Breyer), his opinion held that Title III's plain text covers foreign-flag cruise ships, but that the statute would not apply in cases where its requirements conflicted with international legal obligations. In a portion that was joined only by Justices Stevens and Souter, Justice Kennedy concluded that Title III also would not apply to foreign-flag cruise ships to the extent that it interferes with a vessel's internal affairs and operations. (Justice Thomas, in a separate partial concurrence, agreed with that conclusion.) In that part of his opinion, Justice Kennedy recognized that most of the plaintiffs' claims had nothing to do with "internal affairs and operations"; only the claims involving physical barriers to access on board the ships had any plausible effect on "internal affairs and operations."
Justice Ginsburg, joined by Justice Breyer, concurred in part and concurred in the judgment. She would hold that Title III applies even to matters involving "internal affairs and operations" of foreign-flag cruise ships, so long as the statute's requirements do not actually conflict with international legal obligations.
Justice Scalia, joined by the Chief Justice and Justice O'Connor (and in part by Justice Thomas), dissented. He would hold that because some of Title III's requirements implicate the internal ofder of foreign-flag cruise ships, the statute could not apply to such ships.
(Disclosure: I provided some minor help to Tom Goldstein and Pam Karlan and their Supreme Court clinic on this case.)
Saturday, June 04, 2005
Disability Law in New Hampshire
LATE last month, the New Hampshire Senate voted to deny citizens with disabilities equal protection when it comes to employment. In a 12-12 vote, the Senate failed to afford individuals with disabilities the same right to equal employment opportunity as racial and religious minorities and women; indeed all citizens.
It was a shocking development. All the public testimony before the House and Senate committees supported this long overdue civil rights legislation. The bill had won the support of the House, and had been recommended by the State Human Rights Commission and the Governor’s Commission on Disabilities as well as the House committee (15–0 vote) and Senate committee (4 to 1 vote).There is, however, one more chance for the 12 senators who voted against the bill and their colleagues to send a message that all of New Hampshire’s citizens deserve a fair shake when it comes to employment.
Irish Disability Law Smackdown Settling Down?
The Government has agreed to significant changes in the forthcoming disability bill, it emerged tonight.
The Disability Legislation Consultation Group (DLCG) said it had received commitments from Taoiseach Bertie Ahern which would address some of the concerns expressed by its members.
“It will go someway towards that but here are still some outstanding issues,” said chairwoman Angela Kerins.
The legislation, which is currently going through the Seanad, will now contain new cabinet procedures which will see every piece of legislation discussed with disabled people in mind.
A disabled person who is assessed for services will be able to meet face-to-face with the liaison officer reviewing their service statement.
Complaints officers will have to give timetables to disabled people who are left waiting for assessments and other services, and an annual report will be presented to the Dáil and Seanad containing the number and profile of people awaiting assessment.
Inaccessibility in India
For Nipun Malhotra, the disabled boy from Apeejay School, Noida, who scored 92 per cent in Class XII, Delhi University appears to be a “distant” dream. Admission into a college of his choice itself will not be a problem. What disturbs him and his parents is that no college in the university has facilities for the disabled.
It has been 10 years since the Disability Act, 1995 made it mandatory for a barrier-free environment and eight years since the University Grants Commission (UGC) announced a special grant for colleges to have disabled-friendly campus. But the university does not seem to have done anything other than to reserve three per cent seats in the disabled category.
Nipun, for example, has been unable to find a single college that is designed for wheelchair movement. “I am interested to pursue maths and accountancy,” says Nipun. “But I cannot study in DU as the colleges do not have the ramps.”
Disabilities Act a Big Boost to Millions
Friday, June 03, 2005
Morris on Pursuing Justice for the Mentally Disabled
This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as sanism, which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin's characterization of the problem and suggests other reasons for the phenomenon, including a belief that the civil commitment decision proved that the person was incompetent to make treatment decisions, and a belief that the decision on what treatment should be administered is a medical judgment to be made by the patient's doctor and should trump any patients' rights claim. The article concludes by considering whether aggressive advocacy would substantially improve the situation. Most patients accept - or are coerced into accepting - medication that their doctor prescribes. Because competency hearings are only conducted for those patients who assert a right to refuse medication, few patients would be affected by more aggressive attorney advocacy. Those patients who are successful in resisting coerced treatment are likely to be released from the hospital without an improvement in their mental condition and processed through the criminal justice system when they are detained in the future.
Thursday, June 02, 2005
Contribute to the Adam Milani Writing Award in Disability Law
The Adam A. Milani Writing Award in Disability Law is now accepting charitable contributions to endow the fund. The announcement of the writing award will take place in September 2005 with the first submissions due in June 2006. Award winners will be announced in September 2006 and each year thereafter. In order to be eligible to submit a paper for the award, the author must be enrolled as a law student during the academic year of the submission.
Contributions to the award should be sent to:
Office of University Advancement
1400 Coleman Avenue
Macon, GA 31207
Checks should be made out to "Mercer University" but they should either
include a note or put a note on the check that it is for the "Adam A.
Milani Award in Disability Law"
Hensel on Wrongful Birth and Wrongful Life Actions
The controversy surrounding wrongful birth and wrongful life litigation has existed for many years and is well documented. The courts faced with these issues have overwhelmingly rejected wrongful life actions while at the same time approving those for wrongful birth. In part, this has occurred because courts have found it more palatable to identify lost parental choice as the injury than to answer the metaphysical question of whether non-existence is ever preferable to life, however burdened. In contrast, many tort scholars who have addressed this issue have concluded that both wrongful birth and wrongful life actions should be permitted to go forward. They reason that both torts correspond well, if not perfectly, with traditional negligence principles.
In the midst of this robust public debate, there is one point of view that has received less attention--that of individuals with disabilities. Although much has been written about the impact of genetic testing as a general matter, surprisingly little legal scholarship has focused on the impact that wrongful birth and wrongful life actions might have on the community of people with disabilities. Often, the consideration tort scholars give to this viewpoint is confined to a discussion about the benefits of providing needed compensation to disabled individuals and their caregivers. Particularly in the wrongful life context, scholars have argued that the theoretical difficulty in identifying "life" as an injury does not outweigh the practical reality of an injured party who needs assistance.
The problematic aspects of wrongful birth and wrongful life actions, however, far exceed the conceptual difficulties that attach to these torts. Wrongful birth and wrongful life suits may exact a heavy price not only on the psychological well-being of individuals with disabilities, but also on the public image and acceptance of disability in society. Rather than focusing on a defendant's conduct, as in a traditional tort action, both wrongful birth and wrongful life suits ultimately focus on the plaintiff's disability, a status that is at least partially a societal construction. Juries in such actions are required to evaluate whether a particular disability is so horrible, from the nondisabled perspective, as to make plausible the choice of abortion or contraconception by the parent, or non-existence by the disabled child. Since only the child's diagnosis is ascertainable at this critical point in time, the centrality of impairment in defining personhood is reinforced and inescapable. Any benefits secured by individual litigants in court are thus taxed to the community of people with disabilities as a whole, placing at risk, in the drive for individual compensation, the gains secured by collective action and identity.
This Article argues that the costs of recognizing wrongful life and birth actions are too high.
Wednesday, June 01, 2005
People with Disabilities Told to Wait at Stairs in an Evacuation
Capitol Police have no specific procedures to assist in the evacuation of disabled staffers and visitors, according to a Capitol Police spokesman.An interesting example of the general problem of failure to consider people with disabilities in emergency evacuation plans.
Equal Protection of the Laws?
The court rejected that argument. Because the defendant agreed to transport only those individuals with disabilities who could not use the regular mass transit service, the court held that it was not open to all comers as required to be a common carrier. The court relied on an earlier precedent that held that a contractor who provided school bus services for special education students was not a common carrier: "the bus company provided a specific service to a specific group of people because it only transported special education students between home and school by specific agreement."