Caruso on Bargaining and Distribution in Special Education

New on Westlaw: Daniela Caruso, Bargaining and Distribution in Special Education, 14 Cornell J.L. & Pub. Pol'y 171 (2005). From the introduction:

As illustrated in the pages that follow, special education services are currently allocated on the basis of heavy parental participation in the administrative process. Bargaining power and negotiation strategies play a significant role in the ultimate determination of children's entitlements. These mechanisms are worthy of praise in many respects and should be retained. Thanks to such participation opportunities, families devoid of financial means but endowed with advocacy skills may still ensure that their children receive an adequate education. Parental involvement also allows for truly individualized educational plans, drafted with full knowledge of each child's strengths and needs. Recent attempts to limit parents' say in the process of defining appropriate educational services are not commendable. It is nonetheless important to point out that such bargaining mechanisms combine with other traits of the system--such as wide agency discretion, lack of transparency, and budget constraints--to generate unintended outcomes. It was explicit in the design of the Individuals with Disabilities Education Act that the distribution of special education services would counteract existing inequalities. However, there is evidence that the resultant distribution is uneven. The current system yields lower payoffs for needier families, which are on average less endowed with bargaining power and therefore less capable of taking advantage of participation opportunities.

What follows is not an overall critique of special education law. If compared with prior regimes, the current system has certainly succeeded at improving the average condition of children with disabilities. The purpose of this article is to examine the law's distributive effects in order to devise strategies of correction while upholding the federal government's commitment to the educational welfare of children with disabilities.

If I may borrow a page from Larry Solum's playbook: This looks very interesting!

Book Review on Indian Disability Law

See this review in The Hindu. The book looks like a good start for those looking for a way into Indian disability law.

Edge-Centric on Gonzales v. Oregon

See Edge-Centric's interesting post on the Oregon "Death with Dignity" case, to be heard Wednesday in the Supreme Court.

EDNY: Lane Doesn't Extend to Post-Secondary Education

In Press v. State Univ. of N.Y. at Stonybrook, 2005 WL 2360050 (E.D.N.Y., Sept. 27, 2005), Judge Spatt of the Eastern District of New York held that Title II does not validly abrogate state sovereign immunity in cases involving public higher education. Here is the crucial language:

The Court notes that the Fourth and Eleventh Circuits have extended Lane to cases involving access to education. See Constantine v. Rectors and Visitors of George Mason Univ., et al., 411 F.3d 474, 490 (4th Cir.2005); Assoc. for Disabled Amer., Inc. v. Florida Inter. Univ., 405 F.3f 954, 959 (11th Cir.2005); But see Pace v. Bogalusa City School Bd., 403 F.3d 272, 287 (5th Cir.2005) (declining to address whether the holding in Lane extends to disability discrimination in access to public education.). Those courts held that even though the constitutional right to equality in education is not a fundamental right and is only subject to rational basis review, given the importance of education, relief under Title II is proportional and congruent to the alleged injury. Id.

The Court does not question the importance of equal access to education. See Brown v. Board of Educ., 347 U.S. 483, 493, 74 S. Ct 686, 691, 98 L.Ed. 873 (1954).("[E]ducation is perhaps the most important function of state and local governments."). However, this Court is unwilling to expand the scope of Title II and encroach on the state's immunity with respect to a non-fundamental right such as access to post-secondary education that is subject only to rational review. See Roe, 334 F.Supp.2d at 423 ("In contrast to the situation confronted in Lane, the application of Title II to [applicants to a state bar], like Title I's general prohibition of employment discrimination, does not enforce basic constitutional guarantees whose violation would trigger a higher standard of judicial review"; see also Cochran, 401 F.3d at 193 (3d Cir.2005) (declining to extend Lane to Title II claims by disabled prison inmates).

More Cerminara on Schiavo

New on SSRN: Kathy L. Cerminara, Tracking the Storm: The Far-Reaching Power of the Forces Propelling the Schiavo Case, 35 Stetson L. Rev. (forthcoming 2005). The abstract:

More than 15 years elapsed between the date Theresa Marie Schiavo suffered a cardiac arrest, leaving her in a persistent vegetative state because of brain damage, and the date she took her last breath. The conflict between her parents and her husband regarding her medical care lasted for more than 11 of those 15 years. The litigation over her care lasted for more than six. It is difficult to keep track of the multiple court cases filed in Schiavo, let alone to pinpoint the highlights of their many twists and turns. It may be possible, however, to predict how the aftereffects of the Schiavo maelstrom will impact upon the law of end-of-life decision-making in Florida. This article highlights statements made during the Florida Legislature's debates about the Schiavo matter in late 2003 and analyzes what citizens of Florida might expect in terms of lingering legal effects of the Schiavo case and the storm surrounding it.

EdWeek on Schaffer

See this background article about Schaffer v. Weast, the IDEA case to be argued in the Supreme Court next week.

Legal Battle Over Seating at Cinemas Ends

See this article in today's Portland Oregonian. It begins:

Three disabled Oregonians agreed Monday to end their five-year legal fight for a better movie-viewing experience with Regal Entertainment Group.

By dismissing their suit against Regal in federal district court in Portland, the three Oregon women decided to accept the terms of a settlement reached in June between Regal and the Department of Justice.

That settlement forces Regal to make 1,000 of its auditoriums more wheelchair friendly -- and to speed up the process in Portland.

(Disclosure: I helped the plaintiffs keep this case out of the Supreme Court after they won an earlier round in the Ninth Circuit.)

New Empirical Study on ADA Outcomes

New on Westlaw: Kathryn Moss et al., Prevalence and Outcomes of ADA Employment Discrimination Claims in the Federal Courts, 29 Mental & Physical Disability L. Rep. 303 (2005). From the introduction:

Our paper reports findings from the first national study of the prevalence and outcomes of Title I lawsuits in the federal courts, and combines court data with administrative data to estimate the number and proportion of unresolved administrative cases that reach the federal courts. We find, like Rulli, that settlements represent a significant source of benefits to ADA claimants who bring their cases to court, but also that the vast majority of people who are eligible to sue do not do so. Thus, while many more ADA litigants benefit from lawsuits than the reported case data suggest, our findings point to a deeper and more wide-ranging problem: a shortage of legal services, or some other set of barriers.

AYP Rules Miss Many in Spec. Ed.

See this interesting article by that title in Ed Week. It begins:

More special education students are being excluded from federal accountability provisions, driving up the number of public schools able to make adequate yearly progress and raising questions about the pledge to “leave no child behind.”

To make adequate progress under the federal No Child Left Behind Act, public schools and districts need to meet annual targets for the percent of students scoring at least at the proficient level on state tests. That goes both for their student populations as a whole and for certain subgroups, including students who are poor, speak limited English, are members of racial or ethnic minorities, or have disabilities.

But a yet-to-be-published analysis, based on test score data in five states, found that more than 80 percent of schools that made AYP under the federal law in 2003 or 2004 did so without having to meet standards of proficiency for their special education students as a separate subgroup.

One of the biggest reasons, according to the study by the Dover, N.H.-based Center for Assessment, is the threshold sizes states are setting before a subgroup counts in calculating AYP.

Data gathered independently by Education Week showed a similar pattern.

“It’s disappointing that in so many places, students with disabilities are not being counted,” said Martha L. Thurlow, the director of the National Center on Educational Outcomes at the University of Minnesota-Twin Cities, a federally financed research center. “I think that people do not realize that this is the case.”

Court Settlement Opens School Doors for Pa. Disabled Children

See this article by that title in the Pittsburgh Post-Gazette. It begins:

An agreement approved yesterday in U.S. District Court in Philadelphia will make it easier for Pennsylvania families with disabled children to mainstream their kids.

The settlement gives more power to the parents of disabled children and forces state officials to make sure school districts comply with the federal Individuals with Disabilities Education Act (IDEA).

"We've worked with parents whose children were systematically excluded from the regular education environment just because of their disabilities," said Barbara Ransom, a lawyer for the Public Interest Law Center of Philadelphia, which represented the plaintiffs in the 11-year-old class action case.

"Discrimination is bad no matter who does it or who is affected. These children have been excluded because of the prejudices associated with being different."

The Public Interest Law Center represented a class of 280,000 special education students in a lawsuit with 12 named plaintiffs and 11 disabilities advocacy organizations. The plaintiffs claimed that the state's school-age students with physical, behavioral and development disabilities are not given enough time in regular classrooms and don't get appropriate instruction, with adjustments for their disabilities, to help them learn.

The settlement requires the state to set up a five-year monitoring system, along with a parent-dominated advisory board.

School districts will get be graded on how well they include disabled children in regular classrooms. Those with the worst records of including disabled students will be put on a monitoring list. The state will help failing districts improve and impose penalties on those who don't.

The most severe penalties include losing state funds and disciplinary action against school administrators.

You can find a copy of the settlement agreement here.

Builder Violated Disability Rights, Suit Says

See this article from Friday's Washington Post. It begins:

A major Greenbelt-based developer violated federal law by building 54 apartment buildings -- 22 of them in Maryland, the District and Virginia -- that are inaccessible to people with disabilities, according to a civil lawsuit filed yesterday.

The Bozzuto Group constructed buildings with doorways that are too narrow and with light switches that are too high for people in wheelchairs, alleges the lawsuit, filed in U.S. District Court in Greenbelt.

Danes Take Care of Disabled to New Level

See this piece by that title in Canada's National Post. Here's what it says:

Danish activists for the disabled are staunchly defending a government campaign that pays sex workers to provide sex once a month for disabled people.

Opposition parties call the program, officially known as ''Sex, irrespective of disability,'' immoral.

''We spend a large proportion of our taxes rescuing women from prostitution. But at the same time we officially encourage carers to help contact with prostitutes,'' said Social-Democrat spokesperson Kristen Brosboel.

Responded Stig Langvad of the country's Disabled Association: ''The disabled must have the same possibilities as other people. Politicians can debate whether prostitution should be allowed in general, instead of preventing only the disabled from having access to it.''

Thanks to Seth Galanter for the tip.

Disability Law Booklist

It occurred to me that it might be useful to collect up, all in one place, links to the various books that I think of as providing particularly useful or interesting treatments of disability law or disability rights. So here's a first cut. No Pity is a great introduction to the disability rights movement -- really the classic journalistic history. Make Them Go Away and Backlash Against the ADA are good discussions of ADA backlash. The Disability Studies Reader is a great introduction to disability studies. From Good Will to Civil Rights is the essential account of the drafting and implementation of Section 504 of the Rehabilitation Act. And the others are great, too.

"Using Terri"

Over the weekend, I read the new book by Jon Eisenberg, Using Terri: The Religious Right's Conspiracy to Take Away Our Rights. Eisenberg was one of the lawyers who represented Michael Schiavo in the Schiavo federal-court litigation, and his book is a very readable statement of the right-to-die side of that case. The book isn't without its flaws: Eisenberg puts himself into the story too much, and some of the writing is tendentious. Disability rights opponents of the right to die come across as deluded tools of the Religious Right, rather than as people with well-grounded concerns (but perhaps a wrongheaded policy prescription). But if you want a forceful lawyer's brief for the right-to-die side of the Schiavo case (in language the lay reader can easily understand), you could do a lot worse than this book.

Mary Johnson on Disability in the Roberts Hearings

Over at Edge-Centric, Mary Johnson has some great stuff about disability and the Roberts hearings. See especially this post on Wednesday's proceedings.

Long on the Record of Disability Prong

New on SSRN: Alex B. Long, (Whatever Happened to) The ADA's Record of Disability Prong(?). The abstract:

The ADA's record of disability prong is the prong least likely to be used by ADA plaintiffs in claiming protection under the Act. Between the years 2000 and 2004, ADA and Rehabilitation Act plaintiffs in federal court who alleged employment discrimination relied upon the record of disability prong less than one-third as often as the actual and perceived disability prongs in claiming disability status. Nor have ADA plaintiffs enjoyed any greater success when asserting coverage under the record of disability prong during that time period. Congress, the Equal Opportunity Commission (EEOC), and the federal courts bear much of the blame for the record of disability prong's diminished stature. The requirement of some federal courts that a record of disability plaintiff must actually produce a tangible record documenting the existence of disability has limited the scope of the second prong. The Supreme Court's restrictive interpretations of the actual and perceived disability prongs have likewise limited the reach of the record of disability prong. The record of disability prong was specifically intended to address those situations in which an individual has recovered from a once-substantially limiting impairment; yet, because of the Supreme Court's conclusion that an individual's use of mitigating measures must be taken into account when assessing the existence of disability, even this use of the record of disability prong is in doubt. However, in at least some instances, the limited role played by the record of disability prong can be attributed to the failure of plaintiffs' attorneys to fully understand and utilize the prong. This Article argues that the only way that the record of disability prong can play a meaningful role in the elimination of discrimination against individuals with disabilities is if attorneys take a fresh look at this forgotten portion of the ADA.

Cerminara on Schiavo

New on SSRN: Kathy L. Cerminara, Musings on the Need to Convince Some People with Disabilities that End-of-Life Decision-Making Advocates Are Not Out to Get Them, Loyola University Chicago Law Journal, Vol. 36, 2005. The abstract:

As others have noted, the importance of the Terri Schiavo case is not legal; the various Schiavo opinions broke no new legal ground other than the constitutional questions raised when legislatures began intervening to attempt to change the outcome of the end-of-life decision-making rulings. Rather, it was activism by certain disability rights and vitalist groups that so caught the attention of the public, the politicians and the media. Focusing upon the imagery and framing utilized by vitalist activists, disabled persons saw themselves reflected in Ms. Schiavo's position, despite the fact that Ms. Schiavo lay in a persistent vegetative state. Their fear is the type of fear that those who believe in the right to self-determination in end-of-life medical decision-making must address to avoid retreat from the principles eloquently explained in the landmark case of In re Quinlan. This article traces the development of the law and politics from Quinlan to Cruzan to Schiavo as seen through the objections of persons with disabilities. It concludes by urging that disabled persons should be drawn into reasoned conversation to a greater extent so that they may see that those who supported the result in Schiavo are not out to "get" people with disabilities and that decisions like Schiavo in fact serve us all, including those with disabilities.

Jones, Atty. to Testify in Roberts Hearings

See this report about my old co-counsel, Bill Brown, and our client, Beverly Jones (one of the plaintiffs in Tennessee v. Lane) testifying in the Roberts hearings.

Student Note on Reasonable Accommodation in "Regarded As" Cases

New on Westlaw: Timothy J. McFarlin, Comment, If They Ask For a Stool . . . Recognizing Reasonable Accommodation for Employees "Regarded As" Disabled, 49 St. Louis U. L.J. 927 (2005). The note addresses the split in the circuits about which I've blogged several times. See here and here.

Good Third Circuit Olmstead Decision

I've been super-busy over the past few days, so I haven't yet blogged on the Third Circuit's decision last week in Frederick L. v. Department of Public Welfare. This Olmstead case was before the Third Circuit for the second time. The district court originally ruled for the state, the Third Circuit vacated and remanded, then the district court ruled for the state again. In this appeal, the Third Circuit once again vacated the district court's judgment. The Third Circuit held that:

a comprehensive working plan is a necessary component of a successful “fundamental alteration” defense in these proceedings. Thus, although we uphold the District Court’s factual conclusion that accelerating community placements would constrain the state’s ability to satisfy the needs of other institutionalized patients, DPW may not avail itself of the “fundamental alteration” defense to relieve its obligation to deinstitutionalize eligible patients without establishing a plan that adequately demonstrates a reasonably specific and measurable commitment to deinstitutionalization for which DPW may be held accountable. Although DPW attempted to construct such a plan, we are not persuaded that its efforts have been sufficient.

The court explained further:

DPW’s post-remand submissions promised the District Court that “[t]here will be no reversal of the Department’s proven commitment to deinstitutionalization throughout our state hospital system.” However, DPW has failed to demonstrate in reasonably measurable terms how it will comply with this commitment. In Frederick L. II we explained that “[o]ne of our principal concerns is the absence of anything that can fairly be considered a plan for the future.” Frederick L. II, 364 F.3d at 500. Yet DPW remains silent as to when, if ever, eligible patients at NSH can expect to be discharged. Instead, DPW proffers general assurances and good faith intentions to effectuate deinstitutionalization. General assurances and good-faith intentions neither meet the federal laws nor a patient’s expectations. Their implementation may change with each administration or Secretary of Welfare, regardless of how genuine; they are simply insufficient guarantors in light of the hardship daily inflicted upon patients through unnecessary and indefinite institutionalization. Thus, notwithstanding any announced commitment to deinstitutionalization, DPW’s failure to articulate this commitment in the form of an adequately specific comprehensive plan for placing eligible patients in community-based programs by a target date places the “fundamental alteration defense” beyond its reach.

All in all, a good decision.

EU Independent Living Protests

See this article, which begins:

EUROPE’S 60 million disabled people say they are not recognised as full citizens by the EU and their governments.

Thousands of them marched on the European Parliament in Strasbourg yesterday demanding the right to independent living.

They included 50 Irish people, many of whom had to travel overland because airlines made it so difficult for them to fly.

Martin Naughton of the Centre for Independent Living said more than three million of Europe’s disabled people were living in institutions.

“The institutionalisation of people with disabilities has a very negative impact on their lives. This continued practice is of very serious concern to us, particularly as in many cases it would cost less to support people living in their own communities.”

Ball on Feminist and Communitarian Disability Law

New on Westlaw: Carlos Ball, Looking for Theory in All the Right Places: Feminist and Communitarian Elements of Disability Discrimination Law, 66 Ohio St. L.J. 105 (2005). The abstract:

This Article explores the ways in which important elements of disability discrimination law are consistent with feminist and communitarian theory. The Article explains how disability discrimination law accounts for the relationships of individuals, recognizes that differences between individuals often mandate (as opposed to preclude) the application of equality principles, addresses issues of dependency in the context of equality, encourages communication and dialogue between parties, holds that equality is implicated when the state unnecessarily keeps individuals separated from their communities, and accounts for the interests of nonclaimants in determining the equality rights of claimants. The Article argues that these characteristics of disability discrimination law are reflected in feminist theory and communitarian theory, and are, as a result, in some tension with the kind of liberal theory upon which much of the law that prohibits discrimination on the basis of race and sex is grounded.

Milani Disability Writing Competition

Here is the announcement of the Adam Milani Memorial Disability Writing Competition:

Adam A. Milani Disability Law Writing Competition

Sponsored by the Mercer University School of Law; sponsorship by the American Bar Association Commission on Mental and Physical Disability Law is pending.


Adam A. Milani

Adam A. Milani – a passionate disability rights activist and accomplished scholar – was well known for his publication of numerous practical books and articles in the field of disability discrimination. He taught legal writing as well as the law of disability discrimination and always encouraged his students to become prolific and outstanding writers.

Purposes of the Adam A. Milani Disability Law Writing Competition

The purposes of the competition are to promote greater interest in and understanding of the field of disability law and to encourage excellent legal writing skills in students enrolled in ABA accredited law schools.

Topics

The submission may address any aspect of disability law, theory or practice the contestant chooses.

Categories and Requirements

The competition invites submissions in two categories, the Essay category and the Law Practice category.

Essay Category: Submissions in the essay category should be essays or law review-type articles on a disability law topic. Essay submissions are limited to 20 typewritten pages, including footnotes or endnotes. The text of the submission must be double-spaced, with twelve-point font and one-inch margins.

Law Practice Category: Submissions in the law practice category should be briefs or office memoranda on a disability law topic. The text of a submission must be double-spaced, with twelve-point font and one-inch margins. Office memoranda submissions are limited to 20 typewritten pages. For briefs, the Question(s) Presented section, Statement of the Facts / Statement of the Case section, the Argument section, and the Conclusion are limited to 20 pages. Briefs may include any other customary component of a similar court document, but those components will not be evaluated.

If the submission covers both a disability law issue and a non-disability law issue, only the disability law issue will be evaluated. For papers written originally for a legal writing class, only two papers per legal writing professor per year will be considered. If more than one student of a particular professor desires to submit his or her paper, the professor shall choose which paper will be submitted.

Prizes

First Prize will range between $300 and $500, depending on whether two awards are given. The first prize winner in the essay category may also receive an invitation to publish in the ABA Mental and Physical Disability Law Reporter. The winning submission in each category will be posted online at the Mercer University School of Law website.

Entry information

Entries for the competition must be submitted by mail to the “Adam A. Milani Disability Law Writing Competition,” Mercer University, School of Law, 1021 Georgia Ave., Macon, GA 31207-0001. Submissions must be postmarked by June 15, 2006, by U.S. mail or a recognized commercial express service. Entries submitted by fax will not be accepted. The contestant’s name and other identifying markings such as school name are not to be on any copy of the submitted entry. The staff at Mercer University School of Law will assign a random number to each entry and will record this number on all copies of each submission. Neither the contestant’s identify nor his or her academic institution will be known to any Milani Competition Judge. Two copies of the entry must be submitted along with a disk containing an electronic copy of the submission in Word Perfect or Word format. Clear, legible photocopies without changes are acceptable. Each entrant may submit only one entry. Contestants will receive confirmation of the entry, and winners will be notified by mail of their selection. Entries must be accompanied by the enclosed entry form. The form and these rules also appear on the Mercer University School of Law website, www.law.mercer.edu.

Eligibility

The Essay and Law Practice categories are open to all second and third year full-time law students (and second through fourth year part-time students). The Law Practice category is also open to all first year law students who are enrolled in a Legal Writing course. For the first year of the competition (the academic year 2005-2006), students who met these criteria during 2004-2005 are also eligible.

Employees of Mercer University School of Law (except for work-study students) are not eligible to enter the competition. Submissions that have been accepted for publication prior to submission to the Milani Writing Competition are not eligible. If a student’s submission is accepted for publication after submission to the Milani Writing Competition, the student must inform the publisher that the submission may be published by the ABA if selected as a winner.

Authorship

Each entry shall be the original work of a single individual and constitute an independent subject. Jointly authored submissions are not eligible.

Essay Submissions: For entries in the Essay category, the author must perform all the key tasks of identifying the topic, researching it, analyzing it, formulating positions and arguments, and writing and revising the paper for himself or herself. The author may inform another of the progress he or she has made in performing these tasks and accept a reasonable amount of responsive advice from academicians or practitioners in the field, but the author must avoid collaboration with other students. The final product should reflect the author’s own ideas and work and not those others.

Law Practice Submissions: For entries in the Law Practice category, the author must perform all the key tasks of researching, writing, and revising the paper for himself or herself, but may receive a reasonable amount of advice from academicians or practitioners. The author must avoid collaboration with other students, except for any discussions that occur as part of course activities approved by the student’s professor. Under no circumstances may any of the written product be produced by another.

Criteria and Judging

All entries will be judged anonymously by the Milani Competition Judges, who will select the winning submission(s). The Director of the Milani Writing Competition at Mercer University School of Law will notify the award winner(s). The Judges reserve the right not to award any prizes if it is determined that no entries are of sufficient quality to merit selection that year.

Essay Category: Entries in the Essay category will be judged based on the following criteria: clarity of the theme or thesis presented; significance of the topic to the field of disability law; originality and creativity of topic treatment; quality of analysis; quality of research and authority provided; and technical quality of writing, including organization, grammar, syntax, and form.

Law Practice Category: Entries in the Law Practice category will be judged based on the following criteria: quality of research and authority provided; accuracy and clarity of the analysis; compliance with standard conventions of similar court documents; and technical quality of writing, including organization, grammar, syntax, and form.