Eleventh Circuit Weighs in on Accommodation-for-Regarded-As Split

Today, in its opinion in D'Angelo v. ConAgra Foods, Inc., the Eleventh Circuit joined the Third Circuit in holding that people who are covered by the "regarded as" prong of the ADA's "disability" definition, but who have no "actual" disability, are entitled to reasonable accommodation in employment pursuant to Title I of the ADA. The circuits have been split on this issue for a while (the Eleventh Circuit's opinion acknowledges that four circuits have gone the other way), but the Supreme Court has passed up chances to grant cert. on the issue (including this past spring).

Shotz on Eleventh Circuit Airline Case

See this article in the Ragged Edge. It's a piece by Fred Shotz, the losing plaintiff in Shotz v. American Airlines (which I blogged about last week here), about what the case means.

Washington Court of Appeals Rejects Challenge to Deinstitutionalization

In Parsons v. Washington State Department of Social and Health Services, issued yesterday, the Washington Court of Appeals rejected a state-law challenge to the downsizing of a state residential institution for individuals with developmental disabilities. The case was brought by the guardians of three residents of the institution. The residents were to be transferred to community settings as part of the downsizing, and the guardians objected. They argued that the Department of Social and Health Services was moving people out of the institution in preparation to close the institution, and that no state statute permitted the department to close the institution. The court of appeals held, however, that the department had discretion to downsize the institution even if it couldn't close it. The court did not address any ADA issues, but it did allow the Washington P&A to file an amicus brief that made the legal and policy case for deinstitutionalization.

Medicaid Cuts and Work Incentives

Read about what's likely to be one of many sad stories from my home state here.

Commuter Bus Accessibility Settlement in Colorado

See this AP dispatch:

All buses in a southern Front Range commuter service will be made wheelchair-accessible to settle a lawsuit filed by an advocacy group.Colorado Springs city officials also agreed to pay $100,000 in legal fees to the Colorado Cross-Disability Coalition.

Front Range Express, or FREX, serves Fountain, Colorado Springs, Monument, Castle Rock and Arapahoe County and has 17 stops in downtown Denver.

The coalition's lawsuit accused FREX of discrimination because not all the buses could accommodate wheelchairs.

The city maintained FREX complied with federal laws because the Federal Transit Authority had designated it a "demand-response" service with no fixed route. Such services do not have to provide wheelchair access.

The Cross-Disability Coalition argued the service is a "fixed-route system" required to offer wheelchair access on all buses.

Specter to Ask Roberts About ADA Decisions

See this letter Specter wrote to Roberts. For what it's worth, unlike Senator Specter I think there are clear legal distinctions between Garrett and Lane that explain why Lane was right even if Garrett was right as well. I think Garrett was wrong, but Specter's also wrong to say the cases are "virtually indistinguishable." The case for upholding Title II of the ADA, particularly in contexts like access-to-courts (at issue in Lane) or institutionalized or incarcerated persons (currently before the Court in Goodman) is much, much stronger constitutionally than the case for upholding Title I of the ADA, which applies only to public employment and was at issue in Garrett.

Chicago Chamber of Commerce Taps into ADA

See this story, which begins:

Ask most people with disabilities what they want and they'll tell you they want a job. A Chicago group is making "major moves" to link employers with people who are disabled so everyone benefits.

The Chicagoland Chamber of Commerce is on a mission to re-educate employers about the Americans with Disabilities Act. The ADA fights discrimination against disabled people in many arenas, including employment.

CBS 2 disabilities reporter Jim Mullen tells us the chamber wants to show employers how the ADA can help them find loyal, hard-working employees.

I'd be interested in hearing the full story of this program.

Waiting Line Long for Mental Health Group Home Placements

See this article by that title in the Tuscaloosa News.

Now People with Disabilities Can Take a Train to Clarksville

Okay, maybe I just wanted to honor the Prefab Four, because the post has nothing to do with trains. But here's an interesting article about Clarksville, TN's development and implementation of its ADA transition plan.

Someone in the P&A Network . . .

is doing a great job of placing stories in local papers about how great the local P&A is. Here's one from the Salt Lake Tribune about Utah's Disability Law Center.

Eleventh Circuit Holds Rehabilitation Act Doesn't Apply to Airlines

In its opinion in Shotz v. American Airlines, issued yesterday, the Eleventh Circuit held that Section 504 of the Rehabilitation Act doesn't apply to airlines. What's that you say? You thought this issue had been resolved by the Supreme Court's 1986 decision in Department of Transportation v. Paralyzed Veterans, which provoked Congress to pass the Air Carrier Access Act? Well, the reasoning of Paralyzed Veterans was that the federal financial assistance that goes to airports and air traffic controllers doesn't go directly to airlines, so airlines are not recipients of federal financial assistance as required for coverage under Section 504. But the plaintiffs in Shotz argued that the post-9/11 airline bailout passed by Congress did constitute direct federal financial assistance and thus triggered coverage under Section 504. The court agreed that the airlines were direct recipients of the bailout funds, but held that those funds were not "federal financial assistance." To be "federal financial assistance," the court held, federal money must be intended as a subsidy, and here the money was (the court believed) intended as compensation to airlines for the federal government's grounding of planes after 9/11. The court also thought it would be strange to treat the post-9/11 legislation as subjecting airlines to the general nondiscrimination/accommodation rules of Section 504, when Congress already adopted industry-specific rules in the Air Carrier Access Act.

Interesting Paper on Pain and Work Disability Statistics

See this NBER paper by James Banks, Arie Kapteyn, James P. Smith, and Arthur van Soest, entitled Work Disability is a Pain in the *****, Especially in England, the Netherlands, and the United States. (Yes, the asterisks are in the title.) The abstract:

This paper investigates the role of pain in determining self-reported work disability in the US, the UK and The Netherlands. Even if identical questions are asked, cross-country differences in reported work disability remain substantial. In the US and the Netherlands, respondent evaluations of work limitations of hypothetical persons described in pain vignettes are used to identify the extent to which differences in self-reports between countries or socio-economic groups are due to systematic variation in the response scales.

Eighth Circuit Denies Rehearing En Banc in Bill M.

I said it cried out for en banc review, and I even put my money (or at least my time) where my mouth was by helping the plaintiffs with their en banc petition. But the Eighth Circuit just denied rehearing en banc in Bill M. v. Nebraska Dep't of Health and Human Services, which held that Title II of the ADA is valid legislation to enforce the Fourteenth Amendment only in the specific context of access to courts that the Supreme Court addressed in Tennessee v. Lane. Judges Murphy, Bye, and Melloy voted to grant rehearing en banc.

M.D. Fla. Says Deaf Plaintiffs Have Standing to Seek Injunction Against Hospital

In an opinion issued on Monday, the U.S. District Court for the Middle District of Florida held that two deaf plaintiffs had standing (at least at the pleading stage) to seek an injunction against a hospital that had refused to provide them interpreters on past occasions when they had sought medical care. Distinguishing other cases that have held that ADA plaintiffs don't have standing to seek injunctions on the basis of past discrimination by health care providers, the court emphasized that the plaintiffs live very close to the defendant hospital, and that the next closest hospital is forty-five minutes away; that the plaintiffs have chronic conditions that require frequent, sometimes emergency, care; and that the hospital's employees were likely to deny interpreters again when they showed up seeking care in the future. The case is Connors v. West Orange Healthcare Dist., 2005 WL 1944593 (M.D. Fla., Aug. 15, 2005).

Third Circuit (Unpublished): Lane Doesn't Apply to Access to Auction of Confiscated Property

In an unpublished opinion issued yesterday, the Third Circuit held that the Pennsylvania Attorney General had sovereign immunity against a suit under ADA Title II challenging the inaccessibility of an auction of confiscated property. Without much discussion (as makes sense in an unpublished opinion), the court ruled that access to such an auction isn't constitutionally equivalent to access to the courts, which had been the basis for upholding Title II's abrogation of state sovereign immunity in Tennessee v. Lane. The case is Douris v. Pennsylvania Attorney General, and you can find the opinion here.

Interesting Student Note on the Paralympics and the Disability Discrimination Laws

Just out on Westlaw: Jason Kroll, Note, Second Class Athletes: The USOC's Treatment of its Paralympians, 23 Cardozo Arts & Ent. L.J. 307 (2005). The introduction:

The past few years have not been kind to the United States Olympic Committee ("USOC"). The organization's credibility and reputation has been severely tarnished due to scandals and allegations involving bribery, corruption and drug use, among many other things. This has prompted Congress to investigate the organization and pass legislation requiring the USOC to reorganize its governing structure. But the USOC's problems do not end there. Recently, disabled athletes have filed two separate lawsuits in the United States District Court for the District of Colorado alleging that the USOC discriminates against the disabled by refusing to provide the same benefits and programs to Paralympians that it does for Olympians. Specifically, these Paralympians claim that USOC policy and practices violate Title III of the Americans with Disabilities Act ("ADA") and section 504 of the Rehabilitation Act--legislation passed to protect the disabled against discrimination.

The purpose of this note is to evaluate whether the USOC is indeed engaging in discriminatory behavior against the disabled. The focal point of the note will be the more recent of the two lawsuits, the Hollonbeck litigation. The note begins with an overview of both the USOC and the Paralympics, and the relationship between the two entities. Part II discusses the claims brought by the athletes in the Hollonbeck litigation and the USOC's response to these claims. Part III provides an in-depth discussion of the ADA and the Rehabilitation Act with specific emphasis on their application to the sports world. Part IV presents the legal arguments of both the athlete- plaintiffs and the USOC. Part V provides an analysis of these arguments, and based on statutory interpretation and congressional intent, concludes that the USOC's treatment of Paralympic Athletes violates both the ADA and section 504 of the Rehabilitation Act.

Fifth Circuit Upholds Section 504's Waiver of Sovereign Immunity

Resolving issues left over from its en banc opinion in Pace v. Bogalusa City School Board earlier this year, the Fifth Circuit, again sitting en banc, has upheld the waiver of state sovereign immunity in Section 504 of the Rehabilitation Act against a "relatedness" challenge. The court also held that the state officials who had authority to accept federal funds necessarily had authority to accept the waiver of sovereign immunity that went with those funds, regardless of whether state law gave them express authority to waive sovereign immunity. The case is Miller v. Texas Tech University Health Sciences Center, and the opinion is here.

Collateral Damage From Schiavo

Yesterday, the Eighth Circuit, in a two-paragraph published per curiam opinion, held that "a lawsuit under the Rehab Act or the Americans with Disabilities Act (ADA) cannot be based on medical treatment decisions." The court provided no analysis for that conclusion, simply cites to two cases -- one of which was the Eleventh Circuit's decision in the Theresa Schiavo case.

The notion that the Rehabilitation Act and the ADA simply don't apply to medical treatment decisions is one that never made sense, and one that certainly doesn't make sense after the Supreme Court's decisions in Yeskey and Olmstead. The Schiavo case's slapdash treatment of the issue -- relying on pre-Yeskey and Olmstead lower-court cases to hold that the statutes have no application to medical treatment decisions -- may end up doing real damage to disability rights claims.

Goodman Briefs

Speaking of Goodman, the Bazelon Center has this handy web page with links to the lower court opinions and briefs.

Op-Ed on Goodman

See this piece in the Athens Banner-Herald about Goodman v. Georgia, which is currently before the Supreme Court. As one of Goodman's counsel, I particularly like this excerpt:

The case is not unique in Georgia. A sad pattern has developed. In recent times, state government has lost several high-profile lawsuits relating to the mistreatment of disabled people. Perhaps none was more important than the Olmstead case, another U.S. Supreme Court case originating in Georgia, in which the court found the ADA requires that, when practical, people with disabilities must be cared for in community homes rather than institutions. Georgia apparently has failed to comply with that decision, leading to more widely publicized litigation demanding public facilities for the disabled across the state.

Ultimately, Georgia taxpayers could wind up spending astronomical sums renovating public institutions and reinventing rehabilitation programs because state government refused to budge on providing basic support for the lame and sick.

Meanwhile, as the centerpiece of its economic development strategy, the Perdue administration has pledged an estimated $25 million to build a NASCAR museum in Atlanta. The proposal, which the governor and his pals have tried to keep secret, sounds and looks an awful lot like a gigantic amusement park.

Some might wonder if those funds could not be better spent on developing a trained labor force to attract more well-paying jobs. Or how about using that money to upgrade facilities for the disabled or to add more prison beds to keep our state out of the national news and avoid expensive court-ordered remediation?

Maybe Georgia should start lobbying for royalties for constantly supplying the news and entertainment industries with the Peach State's own brand of stranger-than-fiction fodder. No doubt, a Hollywood writer already is working on a script titled, "I Was in a Wheelchair on a Georgia Chain Gang."

Thanks to How Appealing for pointing this out.

Student Note on SAT Flagging

New on Westlaw is a great student note: Nancy Leong, Beyond Breimhorst: Appropriate Accommodation of Students with Learning Disabilities on the SAT, 57 Stan. L. Rev. 2135 (2005). From the introduction:

The Breimhorst result ultimately creates an untenable situation. Although flagging was undeniably stigmatizing to students with disabilities and should not be reinstituted, simply removing the flags without modifying the format of the SAT impairs the validity of the test and creates undesirable incentives for fraud. This Comment argues that the best way for the College Board to circumvent these unappealing alternatives is to eliminate speed as a factor on the SAT.

This debate over accommodation for students with learning disabilities has made salient a larger problem: the SAT is not intended to test speed, yet for many students, the time limit affects their scores. However, the learning disability context provides a useful forum for discussing these issues, while the Breimhorst settlement creates an immediate incentive to address them.

The Comment is divided into three Parts. Part I provides background, demonstrating that some, though not all, students with learning disabilities qualify for protection under the Americans with Disabilities Act (ADA). Given the College Board's concession that the SAT is not intended to measure speed, such students consequently qualify for extended time on the SAT.

Part II addresses the tension between providing accommodation and preserving the validity of the SAT. Because some students without learning disabilities would also benefit from extended time, granting such accommodation inflates the scores of students with learning disabilities. Flagging was an undesirable way of signaling potential score incomparability because the stigmatization resulting from flagging conflicted with the spirit of the law and made disabled students vulnerable to discrimination. However, the Breimhorst solution of simply removing the flags compromises the validity of the test and encourages students to seek inappropriate accommodation.

Part III proposes two alternatives to mitigate the current situation. The more conservative approach attacks the problem of improper accommodation by restricting eligibility for accommodation to those students whose thoroughly documented learning disabilities merit accommodation under the ADA. However, this approach ultimately provides only a partial solution: even if every student who receives accommodation has a legitimate learning disability, the issue of test validity still remains. The best way for testing services to address this problem is to modify the test to reflect its stated purpose of measuring problem-solving ability rather than speed. Recent research suggesting that speed is not a factor for most students on the new SAT indicates progress toward this goal, yet ETS still retains time limits for nondisabled test takers. As long as these time limits prove to be an issue for some students, the SAT will remain an inequitable assessment.

Disability Less Likely to Hold Back Youths Following High School

See this article by that title in EdWeek. It begins:

More youths with disabilities are successfully making the transition from school to higher education, jobs, and adult responsibilities than they did in the late 1980s, according to a federally financed study that has tracked thousands of secondary school students with disabilities over time.

The percentage of students completing high school rose from 53.5 percent in 1987 to 70.3 percent in 2003, according to the report, released by the U.S. Department of Education late last month. During the same period, the rate at which students enrolled in any type of postsecondary education rose from 14.6 percent to 31.9 percent.

Similar positive gains appeared in employment; participation in core-academic courses such as mathematics, science, social studies, and foreign languages; and enrollment in a grade appropriate to the student’s age, among other areas.

You can read the study here.

Birmingham to Fix 1,000 ADA Violations

See this article, which begins:

Birmingham officials say they'll spend millions of dollars to bring city facilities into compliance with the Americans with Disabilities Act. A federal inspection in December found more than one thousand violations of ADA guidelines at 53 city buildings.

More detail here.

Cruise Industry's Reaction to Spector

See this interesting article in the Chicago Tribune.

Interesting Article on Effects of British Disability Law

is here. An excerpt:

Compensation awards for disability discrimination at the workplace have been gradually increasing since the Disability Discrimination Act came onto the statute books in 1995. However, 2004 saw the biggest increase in awards to date - up by 89% from 2003, according to research issued today (Monday 8 August 2005) by specialist journal EOR (Equal Opportunities Review), published by LexisNexis Butterworths.

Report: Disability Travel Up

See this article by that title. It begins:

Americans with disabilities spend more than $13 billion a year on travel, and hospitality and other travel service providers could see those revenues double if they removed obstacles and made their hotels, restaurants and transportation systems more accessible, a new study has found.

How People with Disabilities are Treated in Georgia

The former Soviet republic, not the state. See this BBC story, which begins:

In Georgia, many children with disabilities end up in state institutions, hidden away from the rest of society. Lack of funding means that care is often poor. But a new project launched by the United Nations children's charity, Unicef, may be about to change this.

Hardly a new story, but a powerful one nonetheless.

Interesting British Disability Discrimination Suit

See this article, which begins:

AN award-winning special constable with an outstanding arrest record has launched a landmark disability discrimination case against West Yorkshire Police because the force refuses to take him on as a regular constable.

Despite a list of achievements which already outstrips the performance of many regulars, Dennis McCoy has been blocked from his dream job because he suffers from a hearing impairment in his left ear. The force has turned him down, even though it has officers with hearing impairments in its ranks.

Mr McCoy, who has put in 1,000 hours voluntary service as a special constable in the last 12 months, has directly secured 41 arrests in the last two years and the repayment of £40,000 in unpaid fines.

In February Chief Constable Colin Cramphorn presented him with the Special Constable of the Year Award in recognition of his remarkable efforts – but at the same time West Yorkshire Police were refusing his application to become a regular because of the tinnitus Mr McCoy suffers in his left ear.

The decision has left Mr McCoy, of Allerton, Bradford, both bemused and frustrated. His role already involves most aspects of day-to-day policing, including regular use of police radio to supervise about 30 Special constables under his command, and yet the force has decided he is not fit to be a regular constable.

Louisiana HCBS Waiting List Understated

See this interesting article, which begins:

The chairman of an advocacy group says state health officials have been intentionally low-balling the size of the waiting list of developmentally disabled people seeking home and community services.

The state's health chief said Friday that two sets of numbers are kept, and the lower number -- "a best estimate on who's really out there" -- is the one used publicly.

There's a big difference between the two.

The actual number of people who have requested to be put on the waiting list for services is 13,789, according to the latest Department of Health and Hospitals report. The DHH estimate of the more-realistic number is 7,457.

"I think it's very disconcerting and actually upsetting to learn the actual numbers on the list," said Kay Marcel, president of the state Developmental Disabilities Council.

Pendo on Infertility Discrimination in Insurance

New on Westlaw: Elizabeth A. Pendo, The Politics of Infertility: Recognizing Coverage Exclusions as Discrimination, 11 Conn. Ins. L.J. 293 (2004-2005). From the introduction:

In the last few years, the federal courts have issued important decisions under Title VII of the Civil Rights Act of 1964 ("Title VII") including the Pregnancy Discrimination Act, ("PDA") and the Americans with Disabilities Act of 1990 ("ADA") regarding insurance coverage of treatments or conditions associated with sex and disability. Notably, the Supreme Court held in the 1998 case Bragdon v. Abbott that reproduction is a major life activity within the meaning of the ADA. Many lawyers, activists and scholars thought that coverage for infertility treatment would follow soon after Bragdon. However, in 2003, in the first major case applying Bragdon to health benefits, Saks v. Franklin Covey, the Second Circuit held that an employer's health plan could exclude coverage for infertility procedures performed on women only without violating Title VII or the ADA.

The decision in Saks was a disappointment to many, particularly after the successful use of Title VII to challenge a health plan exclusion of prescription contraceptives in Erickson v. Bartell Drug Company in 2001. But Saks did not shut the door on using Title VII or the ADA to challenge an employer's exclusion of infertility treatment from its plan. Although the ADA has received more scholarly attention in this context, the decisions of the trial and appellate court illustrate the relative weakness of the ADA as a tool to challenge discrimination in the content of employer health plans because of its "equal access" test, which requires only facial neutrality, and its broad "safe harbor" provision. The decisions also illustrate that Title VII can offer significant advantages over the ADA for purposes of challenging the exclusion of infertility treatment because a facially neutral policy that simply permits equal access to the same set of benefits for male and female employees is not sufficient. Instead, employers providing coverage must provide equally comprehensive coverage for both sexes, and the additional cost of offering non-discriminatory benefits, if any, is not a defense. Although the court in Saks concluded that the employer's plan could lawfully exclude coverage for infertility procedures performed on women only without violating Title VII or the ADA, this Article explains how other courts could analyze claims under Title VII differently, and provides a roadmap of alternative legal and factual analyses for Title VII and ADA claims that could be successfully adopted in other cases.

Parking Placard Case News

Two pieces of news on the parking placard front. First, yesterday the Kentucky Court of Appeals issued its decision in Lawrence v. Bushart, which held that the county clerks who collect Kentucky's fee for handicapped parking placards are not immune from a suit challenging that fee as a violation of the ADA.

Second, I have it on good authority that the Eighth Circuit has scheduled argument in the Missouri parking placard case, Klingler v. Director, Department of Revenue, after the Supreme Court's grant-vacate-remand, for September 12 in St. Paul.

Accommodating Athletes with Disabilities

New on Westlaw: Donald H. Stone, The Game of Pleasant Diversion: Can We Level the Playing Field for the Disabled Athlete and Maintain the National Pastime, in the Aftermath of PGA Tour, Inc. v. Martin: An Empirical Study of the Disabled Athlete, 79 St. John's L. Rev. 377 (2005). Despite the two colons in the title, it's a pretty interesting read.

John Roberts on Wyatt

I have this post up on the CAP's Supreme Court Extra blog about a reference in the Roberts papers to the landmark Wyatt case.

IDEA Gives Local Education Agencies No Right of Action Against States, Third Circuit Rules

In Lawrence Township Bd. of Educ. v. New Jersey, in which the Third Circuit issued its opinion yesterday, the plaintiff school district sued the state for reimbursement for the cost of paying for a private residential placement for a student with a disability pursuant to the IDEA. The court held, however, that the statute does not give local school districts a right of action to seek reimbursement from their states: "A budgetary dispute between local and state agencies is simply not among the private actions contemplated by the IDEA, and is traditionally the type of dispute left to state and local authorities."

Ninth Circuit Rejects Olmstead, Medicaid Act Deinstitutionalization Claims

Yesterday, the Ninth Circuit issued its opinion in Sanchez v. Johnson. The plaintiffs (individuals with developmental disabilities and providers of services to individuals with developmental disabilities) claimed that California provides inadequate funding for community-based services for people with disabilities. They contended that the inadequate funding violates a provision of the Medicaid Act, 42 U.S.C. 1396a(a)(30)(A), which requires that:

A State plan for medical assistance--[must] provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan . . . as may be necessary to . . . assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area[.]

They also contended that the inadequate funding violated Title II of the ADA and Section 504 of the Rehabilitation Act, pursuant to the Supreme Court's ruling in Olmstead v. L.C. that unnecessary institutionalization of individuals with disabilities can violate the disability discrimination laws.

The plaintiffs contended that 42 U.S.C. 1983 gave them a right of action to enforce the Medicaid Act, but the Ninth Circuit (in an opinion by Judge O'Scannlain) disagreed. The court ruled that, under the test set forth in Gonzaga University v. Doe, the relevant provision of the Medicaid Act did not create individual rights (a prerequisite to enforcement under Section 1983). The court reasoned that the provision did not focus on the individual beneficiaries of the statute but intsead had an aggregate, institutional focus: "A statutory provision that refers to the individual only in the context of describing the necessity of developing state-wide policies and procedures does not reflect a clear Congressional intent to create a private right of action."

On the Title II/Section 504 claim, the court upheld the district court's ruling, which granted summary judgment to the state, that the state had established the Olmstead defense of having "a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated." The Ninth Circuit's crucial analysis was this:

The district court concluded that California's commitment to the deinstitutionalization of those Developmental Center residents for whom community integration is desirable, achievable and unopposed, is genuine, comprehensive and reasonable. This conclusion was based on evidence from the record, which showed that "[o]verall, California's expenditures for individuals in community settings increased 196% [between 1991 and 2001], while caseload . . . increased fifty-five percent in the same period," that California has applied for increased places under the HCBS waiver program, and that, "[between 1996 and 2000], California reduced its institution population by twenty percent." DDS has also budgeted to develop 42 new Community Care Facilities and ten new Intermediate Care Facilities, and anticipates a reduction in institutionalization that would allow it to close at least one Developmental Center by 2007. We are satisfied, therefore, that the district court's conclusion that California's "plan is comprehensive, effective, and moving at a reasonable pace," is supported by the record.

This opinion is clearly a setback for advocates of deinstitutionalization in the Ninth Circuit, but it's more than that. The opinion is full of troubling language: It states that the Section 1983 remedy "should be applied sparingly" in enforcement of federal statutes. It states that the Supreme Court's ruling in Wilder v. Virginia Hospital Association, which held that a provision of the Medicaid Act could be enforced through Section 1983, was a "rare case" and all but endorses Justice Stevens's argument that Gonzaga effectively overruled Wilder. It also states that a state may invoke the Olmstead defense even if its deinstitutionalization plan is not "always and in all cases successful" -- language that will surely be used by states to rationalize failed deinstitutionalization plans. Moreover, by resolving the state's Olmstead defense on summary judgment despite dispute about how successful the state's deinstitutionalization plan had been, the court took some of the teeth out of Olmstead.

Special-Ed Racial Imbalance Spurs Sanctions

See this article by that title in yesterday's Washington Post. It begins:

Blacks make up one-fifth of the student population in both Montgomery and Anne Arundel county public schools. But they make up two-fifths of the group labeled mentally retarded.

The two Maryland school systems are among five that face state sanctions because they steer too many struggling black students into special education with problems that, in a number of cases, could be addressed in a regular classroom, according to federal education officials. Starting this summer, the systems must spend a combined $8 million a year on efforts to reduce the number of black students in special-ed.

Young black students with academic or behavioral problems tend to wind up in special education, educators say, based on a teacher's impulse to place such children where they will get the most help. Special-ed classes are staffed at a far lower student-to-teacher ratio than regular classes.

But some black parents and others have accused school systems across the country of using special education, a federally subsidized program tailored for children with documented disabilities, as a dumping ground for disruptive black children. The Education Department found that, in 2003, although about 15 percent of all students ages 6 to 21 were black, they made up 20 percent of all special-education students and 34 percent of those labeled mentally retarded in that age range.