Wednesday, November 30, 2005
Tuesday, November 29, 2005
Alito (Circa 1986) on Children with Disabilities
Thanks to ADA Watch for the tip.
Alito said that provisions in the U.N. document "will undertake to provide broad protections for children," such as free care of disabled children and free primary education, that are not guaranteed by the federal government. "Unless the federal government actually intends to undertake these responsibilities on a national level (and we would vigorously oppose such an undertaking on federalism grounds) we believe that the Department of State should make clear in negotiations that it is unlikely" the United States would agree to such terms and "their fulfillment will be at the discretion of the states."
Alito displayed his concern for states' rights in a memo the following year to John R. Bolton, at the time an assistant attorney general and now U.S. ambassador to the United Nations. In the 1987 memo, Alito cautioned about aspects of an agreement on universal children's rights that the State Department was negotiating with the U.N. Commission on Human Rights.
Idea for a Student Note
Monday, November 28, 2005
Blind Woman Fired as Head of State Blind Agency Awarded $3.4 Million
The Strange Politics of Disability Services, Latest Installment
Several top Democrats are criticizing Republican Gov. M. Jodi Rell for appearing with two mentally retarded citizens at a press conference earlier this month to dramatize her opposition to a controversial reform bill that she vetoed.Leaving aside the particulars of the bill at issue -- there is no doubt that Connecticut, more than practically any state, has shown the need for contracting reform -- it's another interesting example of the complicated politics of disability services, which I discussed a little in my Yale piece last year. (And don't even get me started about how one of the key Democrats says that one of the key Republicans is now the "poster child for contracting reform"!)
Rell has clashed sharply with Democrats for months over the contracting reform bill, which she says would restrict the expansion of nonprofit agencies that provide services for the mentally ill and mentally retarded, among others.
Complaints Cite Airline Wheelchair Service
Bad service for passengers using wheelchairs drew more attention than any other problem on the government's first tally of disability-related complaints to airlines.
In all, according to the recent report from the U.S. Department of Transportation, passengers filed 10,193 complaints with U.S. airlines in 2004, and about two-thirds involved wheelchairs.
In addition to inadequate assistance, passengers also complained of damaged chairs, poor seating arrangements, inaccessible aircraft and excessive waits for stored chairs upon landing. About 17 million disabled passengers fly each year, according to the government's most recent estimate.
The complaints about poor assistance don't surprise Bob Herman, senior attorney with Paralyzed Veterans of America. "That's where they fail the most often," he says of airlines.
Wheelchair users might wait an hour for help, and the person who arrives might not know proper lifting techniques or speak English, he says.
Tuesday, November 22, 2005
Op-Ed on Schaffer
The ruling by the Supreme Court opens the door to specialized schools, possibly isolating children with disabilities that keep them from interacting with able-bodied children.
Disabled people fought hard to be part of mainstream America. This re-creates a school system that is discriminatory and dates to the 1970s.
These may be hypothetical scenarios, but they are backed by history. The Supreme Court left it up to the states to decide how they want to educate children with disabilities. This may lead to a huge gap when, or if, the child goes to college.
If the proper education of disabled children is not the responsibility of the public school system that all taxpayers support, the parents of these children have an enormous burden. This could be the beginning of lengthy lawsuits - for those who can afford to take a school system to court.
I don't think Schaffer leaves it "up to the states to decide how they want to educate children with disabilities." All it says is that the party challenging the IEP bears the burden of proof. That's going to have a decisive effect in a very small number of cases. The substantive standard the school district has to meet remains the same -- free appropriate public education plus related services, with all the standard's entailments. States have exactly the same obligations to children with disabilities after Schaffer as they had before the case was decided. The burden of proof matters only when the decisionmaker is in equipoise -- the evidence on both sides is equally persuasive. How often does that happen?
I'm all for trying to get this overturned. What I worry about, though, is that a Chicken Little response will just convince school districts that the Court really did cut back on the obligations they have to kids with disabilities. This is really a marginal decision.
Monday, November 21, 2005
NYT Article on Prenatal Testing
Because such tests often lead to abortions, people with conditions from mental disability to cystic fibrosis may find their numbers dwindling. As a result, some fear, their lives may become harder just as they are winning the fight for greater inclusion.
"We're trying to make a place for ourselves in society at a time when science is trying to remove at least some of us," said Andrew Imparato, president of the American Association of People With Disabilities, who suffers from bipolar disorder. "For me, it's very scary."
Some bioethicists envision a dystopia where parents who choose to forgo genetic testing are shunned, or their children are denied insurance. Parents and people with disabilities fear they may simply be more lonely. And less money may be devoted to cures and education.
The Cystic Fibrosis Foundation, for instance, does not endorse prenatal testing, which the American College of Obstetricians and Gynecologists recommends offering during pregnancy.
"If you can terminate pregnancies with a condition, who is going to put research dollars into it?" said Nancy Press, a professor of medical anthropology at Oregon Health and Science University.
Okay, leave aside the "suffers from." It's a nice piece that surfaces some of the important disability issues here, even if it focuses more on disability services than disability rights. Even Mary Johnson likes it.
Friday, November 18, 2005
Op-Ed on Schaffer
School boards across the country are generally rejoicing over the decision by the Supreme Court that parents who appeal their child's special-education plan, usually to an administrative law judge, have the legal burden of proving that the plan was not "appropriate" under federal law. The parents in the case, Schaffer v. Weast, which originated in Montgomery County, claimed that the school system should bear the burden of proving that the child's plan was appropriate.
I am a member of the school board in Baltimore City, but I don't share the general celebratory mood. If school board members in Maryland and elsewhere understood more about the roots of the nationwide failure of special education, I don't think they would, either.
Interesting Window on Disability Attitudes in Israel
NYT Editorial on Schaffer v. Weast
The court's ruling ignores the clear advantages that school districts almost always have over parents who challenge their decisions. The districts have the money, and many have lawyers and rosters of experts on their payrolls. But many of the families cannot afford legal representation at all.
With less pressure to justify themselves, the schools can simply stand pat - even when their educational plans have proved disastrous for the disabled children in question. This was clearly not the outcome that Congress intended when it passed this landmark law, and deliberately expanded the rights of disabled children and their parents.
Look, I think Justice Ginsburg's dissent had the better of the argument in Schaffer, but the majority's decision to apply ordinary burden of proof rules is hardly surprising. And I don't think the allocation of the burden of proof will really make a difference in most cases -- a school district is risking a lot by"simply stand[ing] pat." All in all, I don't think Schaffer will make much of a difference unless the message school districts and parents start taking away from that decision is that the Court is cutting back IDEA rights. I basically agree with the more tempered analysis in the Times' news story on the case: "It may take years to assess fully the impact of the Supreme Court ruling on Monday on disputes between school districts and the parents of special education students, experts across the country have said."
Wednesday, November 16, 2005
Connecticut P&A Investigation of School for Kids with Learning Disabilities
Poorly behaved students with learning disabilities are being dumped and left to languish at the Hartford Transitional Learning Academy, which should be closed, according to a report released Wednesday.
But Superintendent of Schools Robert Henry said there are no plans to close the Washington Street facility.
The report, issued by the state Office of Protection and Advocacy for Persons with Disabilities, called the school's academic program "incoherent" and unimaginative. It said therapeutic services are lacking, as is a standard process for deciding who is admitted to the academy.
The investigation began in 2004 after allegations surfaced that children were being inappropriately confined and physically abused. Investigators had to get a court order to enter the school, and by the time they did those abuses had ceased, the report says.
"If we accomplished nothing else through this investigation, at least it was a catalyst for change in the restraint policy," said James D. McGaughey, executive director of the protection and advocacy office. "We're pleased that changed."
See this article as well.
Interesting Indian Psychiatric Disability Employment Case
Giving a boost to the rights of the mentally ill, the Bombay high court has ruled that employees who develop mental ailments cannot be terminated from service on that basis.
Upholding Section 47 of the Disability Act which deals with non-discrimination, a bench of Justices A P Shah and D Y Chandrachud ruled that the authorities should either shift the employee concerned to another post with the same payscale and service benefits or create a supernumerary post until a suitable post is available.
Disability Prejudice in Wales
Discrimination against disabled workers in Wales is "common" and prejudice "widespread" according to a new report.
The study by the Public Interest Research Unit assessed the impact of the Disability Discrimination Act, 10 years after its introduction.
The report found the act had made a positive difference in Wales, but had failed to adequately tackle employment discrimination.
It said more help was needed for people making a discrimination claim.
The report found that instances of employment discrimination were common, and apparent in all 20 public authorities, including local councils and health authorities, studied in Wales.
Employees were found to be reluctant to make a discrimination claim, with many employers assuming the Disability Discrimination Act did not apply to them.
Berube on Disability Studies in Slate
Tuesday, November 15, 2005
Schaffer News Coverage
Good Fifth Circuit Diabetes Case
The district court granted summary judgment to Conagra. That court reasoned that Conagra hadn't discriminated against Rodriguez because he had diabetes but instead because he had uncontrolled diabetes, and that discrimination against someone who fails to take reasonable steps to control his condition is not prohibited by the ADA.
The Fifth Circuit reversed, in an opinion by Judge Wiener. The court declined to take a position on whether the ADA permits an employer to refuse to hire an individual who has failed to take steps to control an actual disability. (The court cited Jill Hasday's Michigan piece on this issue, as well as a student note taking the contrary position, to show that the issue was complicated.) But the court said that Rodriguez didn't have an actual disability -- his diabetes did not in fact substantially limit any major life activity. Rodriguez had a "disability" under the ADA because Conagra regarded him as disabled by misperceiving the limitations his diabetes imposed -- particularly, by believing that his diabetes limited him from working in virtually any job. Because Rodriguez was "qualified" for the position he sought, and he had no actual disability to mitigate, the Fifth Circuit held that Conagra had unlawfully discriminated against him. The court thus granted partial summary judgment for Rodriguez and remanded for calculation of damages.
This is a good decision both on the "regarded as" issue and on the "duty to mitigate" issue.
Monday, November 14, 2005
Special Ed Law Blog
Here's to Casey Martin
Bazelon Center on Alito and Disability Rights
See also this post from Edge-Centric on Judge Alito and disability rights.
Experimenting with Comments
Yet Another Article on Title III Noncompliance
To many people, downtown Roanoke's historic red brick buildings and green-and-white awnings are welcoming signs of the city's revitalization of its downtown area.
But some people with disabilities see a handful of downtown's buildings not as inviting restaurants and shops, but as a series of barriers.
Washington Post on Schaffer
More Dispatches on Title III Noncompliance
Marshall Street is an embarrassment. Many of the buildings, restaurants and stores are inaccessible for people with disabilities. Inaccessible entrances, restrooms and a shortage of accessible parking are a few of the problems that plague the Marshall Street area.
* * *
Recently I visited many stores and restaurants on Marshall Street with the help of members of ARISE (a local center for independent living) in order to evaluate compliance with the ADA. Often accessibility could be achieved easily and inexpensively.
Many owners told us that they do not have to worry about making their businesses accessible because none of their customers are people with disabilities. How could they expect to see customers with disabilities come through their doors when they can't even get through the doors?
Fight Over Interpreters at Utah State University
Deaf students are threatening to sue Utah State University, claiming a lack of sign-language interpreters limits the classes they can take.
Utah State officials say they are trying to meet the needs of a dozen hearing-impaired students despite a statewide shortage of sign-language interpreters.
Utah has about 200 certified sign-language interpreters and could use another 400, according to the Utah Division of Services to the Deaf and Hard of Hearing.
University officials say they are working to recruit more sign-language interpreters, but senior Jonathan Roberts, 24, of Logan, is tired of excuses.
"They haven't done anything, and it's getting worse," said Roberts, among students who hired Sandy attorney Dale Boam and filed a notice of intent to sue the school.
Long Article on Deinstitutionalization Legislation in Illinois
"She said she knew she was going to die. She just needed one last chance to be on her own and independent," Delzell recalled.
He has heard the same thing, in so many words, numerous times over the five years he's worked with the Community Reintegration Program, which has helped more than 1,000 people age 59 and younger move out of nursing homes statewide.
That sentiment is at the heart of a movement to end institutionalization of seniors and those with disabilities, publicized last month by a four-day statewide tour by the Campaign for Real Choice in Illinois. The advocacy group sponsored the "freedom ride" to push passage of the Community First Act, which would compel the state to spend money on support services allowing the disabled to live in their communities, rather than institutions or large group homes.
The bill won broad support in theory but eventually was sidelined by questions about how it would be implemented – and the financial impact on the state, its employees, nursing homes and the disabled themselves.
"I don't think anybody is opposed to deinstitutionalizing people with disabilities, and court cases have indicated that's what you should move toward," said state Rep. Bill Black, R-Danville. "We are a heavily institutionalized state. We have over 80,000 disabled people in public and private institutions and nursing homes. I don't think anybody's proud of that.
"But the devil in this business is always in the details. When we started to have hearings and get down to how it will be implemented, we had more questions than answers."
Ann Ford, executive director of the Illinois Network of Centers for Independent Living, said the bill will probably be reintroduced in January. She's working with officials from the Department of Human Services and the Department on Aging to iron out some of the problems.
"I don't have answers yet," Ford said. "What we're doing right now is kind of going back to the drawing board and looking what we can do."
The issue is an emotional one, pitting parents against parents in some cases. The most outspoken advocates liken state institutions to "prisons" that promote segregation of those with disabilities. They cite figures showing Illinois lags behind most other states in moving individuals out of institutional care.
State officials say they've made efforts to move toward more community-based care, for both seniors and the disabled. The Department of Human Services supports programs allowing people to live "in the least restrictive setting, consistent with their needs," said spokesman Tom Green.
Charles Johnson, director of the Illinois - Department on Aging, said the state already spends about $250 million a year on its Community Care program to help seniors stay in their homes. The money is used for home services and adult day-care services. The program has grown steadily over the last two decades, now serving more than 41,000 people.
"We're committed to the concept," Johnson said. "Clearly there are more and more people who are in need of these services."
The trick is to find a way to increase support for seniors in the community while continuing to care for those who need higher-level care in institutions, he said.
Supreme Court Decides Schaffer v. Weast
Most Cedar City Businesses Violate Disability Act
Only four of this city's 141 businesses are in compliance with the federal Americans with Disabilities Act, but advocates are emphasizing the positive.Yet another example of the stunning lack of compliance with Title III of the ADA.
The Cedar Disability Action Team recognized a Maverik Country Store and The Pizza Factory for going out of their way to design special accommodations for the disabled in new construction.
"For people with disabilities, to have a parking space right next to the doorway that is clearly marked, not only with the painted blue symbol on the ground but an upright sign posted, it does a lot to help us get into businesses more conveniently," Cedar Disability Action Team board member Dave Christopher said Friday.
Christopher, who sits on a city project review committee, said owners of new Maverik store "did it right." They sought his advice beforehand on rules for curb cutouts and one disabled parking space for every 25 spaces.
Maverick owner Jody Weiner also installed an intercom at gas pumps. She said the store is "open, airy and friendly and easily accessible for all customers, not just those who can walk, but to everyone."
Disability Law Center advocate Kathy Kessler said 12 percent of Iron County's population -- or 4,123 people -- are disabled. She said businesses that ignore ADA guidelines could be liable for breaking the law, and are cutting themselves short on loyal customers and profits. ADA guidelines can be enforced in civil actions.
Saturday, November 12, 2005
New(?) Comparative Disability Law Article
Friday, November 11, 2005
Australian "Wrongful Life" Case
THE High Court has been asked to decide whether severely disabled children can sue over medical negligence which resulted in their birth rather than abortion.See this article, too.
In a landmark hearing, two disabled children, one now a young woman and the other a three-year-old girl, are seeking the right to sue their mothers' doctors for wrongful life.
One of the claims has been brought by Sydney woman Alexia Harriton, 24, who was born deaf, blind, physically and mentally disabled and not expected to live more than six months.
Interesting Irish Parking Story
For additional detail, see this story, which begins:
An organisation working with older people has criticised Dublin City Council's proposal to charge people with disabilities for parking.
Age Action said the move could seriously affect older people who are frail or disabled.Enable Ireland, who work with people with disabilities said the proposal would be 'a backward step'.
However, the Irish Wheelchair Association welcomed the city council's plans, saying the disabled parking permits system was being widely abused.
Dublin City Council is proposing to start charging disabled people for parking in an attempt to stop what it says is the "wholesale abuse" of the disabled parking permits system.
The number of family and friends misusing the free parking permits was causing "serious concern" among local authorities, the city's director of traffic, Owen Keegan, said last night.
Evidence had also emerged that permits were being stolen for use by able-bodied drivers and, in the event of a disabled person's death, their next-of-kin often did not surrender the permit but continued to use it on their own vehicles, he said.
Doctors were also implicated by Mr Keegan in the abuse of the system. To qualify for a permit an applicant must have a medical certificate signed by their GP confirming their disability. There was evidence, he said, that GPs were signing forms for people who were not disabled or doctors were being "overly generous" in their assessments of the patient's condition.
The system was impossible to enforce because permits were not restricted to a particular registration number but could be used in any vehicle in which the holder was travelling.
Disabilities and the Medical Student
Thursday, November 10, 2005
Student Note on Police Misconduct Claims Under the ADA
The growing possibility that disabled plaintiffs can bring claims for police misconduct under Title II has significant benefits for the practice of civil rights law in this country. The traditional route for police misconduct lawsuits, Section 1983, presents many obstacles to success for both disabled plaintiffs and the general population. Any alternative means of bringing a subset of civil rights cases--even one that is limited to a specific group of plaintiffs (disabled persons) and a specific type of claim (police misconduct)--should not be ignored.
This Comment will explore courts' treatment of actions for police misconduct under Title II and the contours of the decisional law in that area. Part I will discuss the theoretical bases for application of the ADA to arrests, namely the wrongful arrest theory and the reasonable accommodation theory. Part II will analyze the case law that has arisen out of plaintiffs' attempts to bring claims for police misconduct under Title II. Part II will also demonstrate how initial assumptions that lower courts made about the applicability of the ADA to such lawsuits--which prevented them from allowing the claims to go forward--were discredited by the Supreme Court in Pennsylvania Department of Corrections v. Yeskey, leaving the path clear for acceptance of Title II in the law enforcement context. Part III addresses the question of why a disabled plaintiff should bring ADA claims for civil rights violations when the traditional remedy is an action under Section 1983. Part III will also compare the obstacles to recovery under each claim and will attempt to determine under what circumstances an ADA claim might succeed even when a parallel Section 1983 action would likely fail. In addition, Part III will describe the distinction between the ADA and the Rehabilitation Act and the advantages and disadvantages of pleading a parallel claim under the Rehabilitation Act in addition to an ADA claim. Finally, Part III will provide reasons, beyond strategic benefits, for disabled plaintiffs to plead claims in addition to the usual Section 1983 claims. In conclusion, this Comment will bring together two strands of argument--the feasibility of ADA claims for police misconduct and the desirability of those actions over the traditional civil rights claims--to demonstrate that there are important practical and symbolic reasons for plaintiffs to plead their disability claims under the ADA.
More Goodman Press
Althouse on Goodman
This looks like a rather easy case, though Greenhouse portrays it as a big test of where the Roberts Court will go on federalism cases. It's very much like Tennessee v. Lane, the recent ADA case about access to courtrooms. Congress is beefing up remedies for existing rights, permitting lawsuits for damages. The reference to the "prophylactic gap" -- which must mystify laypersons -- is about proscribing behavior that the constitutional alone would permit. To some extent, defining additional violations is not really the creation of new rights, but is genuinely remedial of existing rights. . . . . Complicated, but it looks as though the prisoner will win.
Wednesday, November 09, 2005
Alito on HIV Discrimination
U.S. Supreme Court nominee Samuel A. Alito signed on to a 2001 federal appeals court decision striking down a policy that prohibited the placement of a foster child into a Pennsylvania home because another child living there had AIDS.
The unanimous decision by the 3rd Circuit U.S. Court of Appeals in Philadelphia — where Alito has served as a judge since 1990 — declared that the policy adopted by Center County, Pa., violated a clause in the Americans With Disabilities Act, which bans AIDS related discrimination.
Alito’s support for the 2001 decision, which was hailed by AIDS activists, came 15 years after he helped write a Justice Department opinion during the Reagan administration asserting that employers had a legal right to fire people with HIV due to “fear of contagion, whether reasonable for not.”
The two, seemingly contradictory actions by Alito on AIDS issues have prompted gay rights attorneys to continue to examine his long record of legal writings to determine how he would likely rule on gay and AIDS related issues on the Supreme Court.
DOJ Settlement with Woodbridge (NJ) Developmental Center
The Justice Department on Wednesday announced that it has reached a settlement with New Jersey regarding conditions and services at the Woodbridge Developmental Center, a year after finding evidence of civil rights violation there.
The agreement, filed in U.S. District Court in Trenton, N.J., requires the state to protect residents from harm and improve psychology, psychiatry, health care and nutritional and physical management services.