New Article on Law Students with Disabilities

New on Westlaw: Jennifer Jolly-Ryan, Disabilities to Exceptional Abilities: Law Students with Disabilities, Nontraditional Learners, and the Law Teacher as Learner, 6 Nev. L.J. 116 (2005). From the introduction:

The aim of this Article is to help teachers, as learners, turn current teaching disabilities into exceptional teaching abilities. Section II of the Article provides a brief overview of the legal requirements for students with disabilities, including an overview of federal law most frequently invoked in civil rights cases involving law students and lawyers with disabilities. Next, Section III confronts the paralysis, lack of vision, and stereotypes that cause legal educators to focus upon the deficits and disabilities of students, rather than upon their unique abilities and talents. Section IV addresses the prejudices in law teaching and in the legal profession, which are significant barriers to students and lawyers with disabilities, and particularly to those with learning disabilities. Section V highlights the exceptional abilities and assets of law students and lawyers with disabilities. Some of the more common disabilities presented in the law school classroom are described in Section VI. Section VI also discusses how all students pay attention in class, retain information, and learn. Finally, Section VII of this Article advocates that accommodations for students with disabilities result in good teaching for all students. It emphasizes that there are "many roads to learning" and reiterates a well-known principle for good teaching; good teaching requires a respect for "diverse talents and ways of learning." Section VII also offers possible compensations, accommodations, and teaching strategies for diverse learning styles and a more inclusive environment, including law students with disabilities.

Timmons on Reasonable Accommodation

New on Westlaw: Kelly Cahill Timmons, Limiting "Limitations": The Scope of the Duty of Reasonable Accommodation Under the Americans with Disabilities Act, 57 S.C. L. Rev. 313 (2005). The abstract:

The two most controversial components of the Americans with Disabilities Act are the definition of disability, generally meaning a physical or mental impairment that substantially limits a major life activity, and the duty of reasonable accommodation, which requires employers to reasonably accommodate "the known physical or mental limitations of an otherwise qualified individual with a disability." This Article addresses an issue at the intersection of those statutory provisions: What limitations must an employer accommodate? This issue, which has divided courts, has received little scholarly attention, despite its important ramifications on the ability of disabled individuals to obtain reasonable accommodation. Limiting the limitations an employer must accommodate risks the entrenchment of many unnecessary disability-related barriers to equal employment opportunity. On the other hand, requiring employers to accommodate any limitation flowing from an employee's disability - even when the limitation is minor and is shared by other, non-disabled employees - could grant the disabled employee preferential treatment rather than a level playing field.

"Whither the ADA?" on Workplaceprof

Over on the Workplaceprof blog, Paul Secunda has posted excerpts from a discussion about the ADA's definition of disability that several law professors (including me) had on a listserv.

New Article on Free Appropriate Public Education in the Circuit Courts

New on Westlaw: Lester Aron, Too Much or Not Enough: How Have the Circuit Courts Defined a Free Appropriate Public Education after Rowley?, 39 Suffolk U. L. Rev. 1 (2005). The article discusses putative conflicts in the circuits regarding the substantive standard for an adequate FAPE and the procedural question of who bears the burden of proof. The latter conflict, of course, was resolved by the Supreme Court this Term in Schaffer v. Weast.

Student Note on Serial ADA Litigation

New on Westlaw: Carri Becker, Note, Private Enforcement of the Americans with Disabilities Act: Abusive or Commendable?, 17 Hastings Women's L.J. 93 (2006). The author tends to think that serial litigation is generally abusive, and recommends the following policy prescription:

Reforms to the ADA should focus on providing protection to businesses that have demonstrated good faith efforts to come into compliance. Certification is a means of providing protection to small businesses that is supported by the California Chamber of Commerce. Recently enacted legislation establishes a scheme by which individuals can become certified ADA access specialists. These specialists can assist businesses in identifying compliance issues and foster greater accessibility statewide. However, these specialists will not prevent vulnerability to lawsuits.

According to the Chamber of Commerce, unless safe harbor provisions are adopted, businesses will continually be vulnerable to lawsuits even when following the advice of certification specialists and making good faith efforts to comply with all of the accessibility guidelines of the ADA. An effective safe harbor provision should provide immunity from lawsuits to businesses that solicit and follow a certified ADA specialist's recommendations, unless that business is given specific notice of violation and fails to make necessary repairs in a reasonable time.

I believe that the California Chamber of Commerce has the right idea. A safe harbor provision should be provided to business owners who make good faith efforts to come into full ADA accessibility requirements. This solution is more appropriate than a mandatory notification period, which has been introduced in both the House and the Senate, because it does not reward bad faith efforts of businesses to avoid making accommodations. Under the proposals of the House and Senate, businesses can avoid following ADA guidelines without repercussions up to the point when notice of a violation is received. Adopting a safe harbor according to the provisions outlined above would avoid this major criticism, which is often made by ADA activists and members of the disabled community.

I would modify the Chamber of Commerce's suggestion in one way, however. Instead of only allowing a safe harbor to those business owners who employ the services of certification specialists, I would extend the safe harbor to businesses that are able to make an affirmative showing of good faith efforts to comply with the ADA. This would avoid the imposition of the costs of hiring a certification specialist for those businesses that are comfortable following the ADA Accessibility Guidelines without professional assistance. This provision could be effectuated by allowing businesses an opportunity to prove that violations were unintentional and not made in bad faith. If the court is satisfied that the business acted in good faith, the business should be granted a safe harbor period in which to remedy the situation without being subject to plaintiff's attorney's fees or damages. This provision would only apply to minor infractions, however. For example, if the grab bar in a bathroom was installed one inch too high despite architectural drawings depicting proper placement, the business that hired the contractors should not be liable for the inadvertent mistake, provided such mistakes are extremely limited in number. The downside of this modification, however, is that making such an affirmative case in court would undoubtedly require the expenditure of attorney's fees. Still, the expenditure of fees may be warranted when the cost of settling is substantially higher.

For what it's worth, I'm currently working on a paper that takes a less hostile view of serial ADA litigation. My argument, which elaborates some things I have written on this site, is that though there have been abuses by serial litigants, there is nothing abusive about serial ADA litigation per se.

Hugging as a Major Life Activity

On the Workplaceprof blog, Paul Secunda discusses the Nuzum v. Ozark Automotive case about which I blogged a few weeks ago.

Interesting Article on Inaccessible PG&E Payment Centers

is here.

Shame at the Statehouse

See this editorial by that title in the Des Moines Register. It begins:

It's appalling that safety devices bought for Capitol stairwells to allow evacuation of physically disabled people were never installed.

That failure was discovered after a fire alarm sounded Wednesday, and state Rep. Mark Kuhn, who is using a wheelchair following a farm accident, was stranded.

It's clear that facilities managers need to come up with a workable evacuation plan for the 150-year-old Capitol. But it's also critical that other institutions and businesses around the state review their own emergency plans. Iowa is graced by picturesque courthouses and other aging gems that present a challenge should a fire, tornado or other threat prompt the need to evacuate.

Jim Ward on Alito and Disability Rights

See this piece, which begins:

It may be hard to believe, but one area of Judge Samuel A. Alito’s record remains unexamined by most major media: his views on the rights of Americans with disabilities.

A close look at Judge Alito’s opinions and writings makes it clear that he would like to reverse the historic gains of people with disabilities. He has relied repeatedly on a cramped vision of congressional authority to protect the rights of all citizens, and he has routinely ignored the factual record of discrimination and abuse of people with disabilities.

Disagreement over Possible Canadians with Disabilities Act

See this interesting article, which begins:

When NDP MP Peter Julian knocks on doors in his Burnaby–New Westminster riding, he can communicate to constituents fluently in English and French.

If the residents also happen to be deaf or hearing-impaired, Julian uses what limited American Sign Language he knows. Few running for office on January 23 could overcome a similar communication barrier, but Julian said he is simply opening up dialogue and access to government for all Canadians.

Now Julian is trying to entrench this with a private member’s bill to institute a Canadians With Disabilities Act. The bill is patterned on the Americans With Disabilities Act, which passed in 1990 and aimed to reduce barriers to employment, transportation, public services, and telecommunications.

If he is reelected on January 23, the MP will consult with stakeholder groups on his proposed bill, which he said will promote and enable accessibility to services for Canadians with disabilities. This area, he added, “has been neglected for decades”.

Julian—former executive director of the Vancouver-based Western Institute for the Deaf & Hard of Hearing—began drafting the bill a year ago. The NDP election platform commits to the introduction of this legislation “at the earliest opportunity”.

But not all disability advocacy groups are in favour of Julian’s plan. Margaret Birrell, chief executive director of the BC Coalition of People With Disabilities, told the Georgia Straight that she lauds Julian’s relentless desire for positive change but added that he has failed to convince the BCCPD board of his drafted bill’s merits.

“The BCCPD does not support the proposed Canadians With Disabilities Act, as we believe it would harm existing Charter rights,” Birrell said. Section 15 of the Canadian Charter of Rights and Freedoms already guarantees equality under the law for Canadians with disabilities.

Julian said stakeholder groups “haven’t seen the final draft” of the bill. “That’s what we’ve addressed in the final draft—make sure it doesn’t derogate in any way from existing rights,” he said. “But we’re not seeing accessibility, and that’s really the issue. That’s a federal jurisdiction. The BC Coalition of People With Disabilities raised those concerns; I met with the board of directors and I intend to meet with them again on the final draft. The other groups that we’ve consulted with across the country have been strongly in favour.”

Jack Styan, executive director and external-relations director of the Vancouver-based Planned Lifetime Advocacy Network, who knows of Julian’s draft private member’s bill, said PLAN has been busy working over the past couple of years to implement an extensive Registered Disability Savings Plan.

“We would support Julian’s idea in principle,” Styan explained. “We would want to make sure there are some enforcement teeth in terms of accessibility.”

Harkin to Vote Against Alito

See this report, which begins:

Iowa's two U.S. senators will cancel out each other's votes on President Bush's latest nominee for the U.S. Supreme Court. While Republican Chuck Grassley says he'll support Samuel Alito, Democrat Tom Harkin announced this morning he will oppose the nomination. Harkin, who authored the Americans with Disabilities Act, fears Alito would help to overturn the legislation.

Harkin says "Based on his record, I'm gravely concerned that Judge Alito does not believe that Congress has the authority to protect the fundamental rights of all Americans. Take, for example, a year 2000 case, where he ruled that Congress lacked the authority to pass the Family and Medical Leave Act." Harkin says Alito consistently favors the rights of states over the rights of people, particularly when people with disabilities are involved.

Another DOJ Movie Theater Case

See this article, which begins:

A federal lawsuit brought against AMC Entertainment Inc., the country's second-largest movie theater owner, by the U.S. Department of Justice has been resolved.

The 1999 suit has to do with violations of the Americans with Disabilities Act of 1990 (ADA), specifically denying equal access in movie theaters to the disabled.

The Justice Department also recently negotiated with Regal Entertainment Group, the largest movie-theater chain, and Cinemark USA Inc. to improve theater accessibility. Based in Knoxville, Tenn., Regal is controlled by Denver billionaire Phil Anschutz.

On Jan. 10, federal Judge Florence-Marie Cooper of California ordered AMC to provide access to stadium seating sections in theaters for people in wheelchairs. The decision means AMC will have to make improvements to some 1,200 of its 1,933 auditoriums with tiered, stadium-style seating, including adding ramps to 360 auditoriums.

Mary Johnson on Oregon's Death with Dignity Law

See this op-ed in the Los Angeles Daily News. It begins:

Tuesday's Supreme Court ruling on Oregon's Death With Dignity Law was greeted with dismay by some major disability rights groups in the U.S., but not for the reasons traditional right-to-die opponents offer. Disability groups raise no "sanctity of life" argument. They worry about discrimination.

"The Supreme Court had an amicus brief about the discrimination inherent in the assisted-suicide law, but they ignored that argument," said Diane Coleman, head of the group Not Dead Yet, which organized a decade ago to fight legalization of physician-assisted suicide.

One might think that disability-rights activists would be strong supporters of the "right to die" - after all, the independent-living movement's core beliefs, that people should be able to make their own choices and control their own lives, seem to be exactly the beliefs that drive right-to-die advocates.

But the problem with laws like Oregon's, say groups like Not Dead Yet, the National Council on Independent Living, the National Spinal Cord Injury Association and the World Institute on Disability - all of whom oppose the Oregon law - has to do with the society in which we find ourselves. Both our attitudes about disability and the economic realities of today's U.S. health care system make disability activists' worries about discrimination realistic.

Life with a disability is so devalued, society is so bigoted against the idea that life with a severe disability can have quality, that in such a climate the "right to die" becomes a "duty to die," say activists, citing movies like last year's Golden Globe winner "Million Dollar Baby" and the documentary "The Sea Inside." Activists fear that people who become disabled will choose suicide over living with disability. They fear that people whose disabilities make them burdens on family members will be pressured - subtly or not so subtly - to end their lives.

Higher Education Inaccessibility in Scotland

See this report, which begins:

More than 20 disabled students have told MSPs about the struggles they face attending college or university.

The students discussed a range of problems with the Scottish Parliament's equal opportunities committee.

Wheelchair users, visually-impaired students and those with dyslexia were among the group visiting Holyrood.

Issues included limited courses, poor access to buildings and a lack of support to help them make the transition from studying to working.

Disabled to Get One-Year Requirement Reprieve

See this article by that title in the Oakland Tribune. It begins:

An estimated 20,000 special-education students from the class of 2006 have yet to pass the California High School Exit Exam, but it looks like it wont matter — at least for one year.

Legislation announced Thursday would allow these disabled students to graduate without passing the test — this year only — as long as they fulfill other graduation requirements. The legislation is supported by legislative leaders, the governor and state education officials.

Senate Bill 517 addresses the short-term demand of the so-called Chapman lawsuit filed by special education students against the state — the suitcalled for a temporary injunction to suspend the exit exam requirement.

Still pending are the lawsuits long-term allegations.

Plaintiff attorney Melissa Kasnitz said the same problems affecting the class of 2006 have yet to be resolved for future graduating classes.

What the lawsuit says is that if you are choosing to make students diplomas contingent on passing a single exam, you need to make sure the process is fair and that students have an opportunity to learn the material before denying a diploma, said Kasnitz, managing attorney for Oakland-based Disability Rights Advocates.

That said, Kasnitz noted she supports the legislation as a short-term solution.

Steven Calabresi on Schiavo

New on Westlaw: Steven G. Calabresi, The Terri Schiavo Case: In Defense of the Special Law Enacted by Congress and President Bush, 100 Nw. U. L. Rev. 151 (2006). From the introduction:

This Essay examines the moral and legal issues raised by the Terri Schiavo case. I begin in Part II below by briefly stating the moral case in defense of the position that Mrs. Schiavo's parents took opposing the withdrawal of her feeding and hydration tube. I discuss the equities of the case and briefly explain why state and federal courts of equity ought to have ruled for Mrs. Schiavo's parents, and against her husband, based on the evidence that was available when those courts ruled. I then ask in Part III whether the extraordinary law that Congress passed and President George W. Bush signed, directing the federal courts to redecide the federal questions raised by Mrs. Schiavo's case, was constitutional. While there are a number of very close and hard constitutional questions raised by the law, I conclude that the special bill for Mrs. Schiavo's and her parents' relief was constitutional. Finally, in Part IV, I consider whether as a policy matter it was appropriate for Congress and the President to intervene in the Schiavo case in the way they did.

Weber on the New IDEA

New on Westlaw: Mark Weber, Reflections on the New Individuals with Disabilities Education Improvement Act, 58 Fla. L. Rev. 7 (2006). From the introduction:

The Individuals with Disabilities Education Improvement Act, Orwellian title and all, received its presidential signature on December 3, 2004. The Act is already fully in effect, and the United States Department of Education proposed regulations to implement it on June 21, 2005. Although the new statute leaves the basics of federal special education law intact, it makes significant changes along the periphery. Special education is now much more closely aligned with the No Child Left Behind initiative of the Bush Administration. The new law allocates funds for the education of children not yet found eligible for special education and pushes school districts to provide services to special education-eligible children in religious and other private schools. It changes the special education eligibility determination rules for children with learning disabilities. It alters dispute resolution procedures, partly to promote settlement and partly to circumscribe parents' rights. Finally, it makes disciplinary processes somewhat harsher for children with disabilities, while still retaining the requirement that no child with a disability ever be excluded entirely from school.

What the new IDEIA does not do is provide clarity on important issues of interpretation of the current law. Two of those issues are the treatment of parent demands for less restrictive educational placements for their children and the disposition of parent requests for intensive out-of-school services for children with autism. Clarity on those issues is highly desirable, and Congress is the best mechanism to provide it. The issues have been argued in the courts and addressed at length by scholars. IDEIA could have addressed them but did not, and they remain on the legislative agenda.

Nevertheless, the changes Congress made in 2004 are not entirely off track. Some of the motivating ideas behind the new statute, such as the insistence that educators be held accountable for success of special education students as they are for general education students, and that children who need assistance to make educational progress need not always be labeled and set apart from their classmates, are bracing. There is a vision of special education in which children who need additional assistance to learn will receive that help without any fanfare, will in the vast number of instances make educational progress at the same rate and at the same level as their nondisabled peers, and will do so in the same classrooms and other educational settings that their classmates occupy. The new law has features that will promote that visionary result, even though much more needs to be done to achieve the goal.

Student Note on ADA, Sovereign Immunity, and Education

New on Westlaw: Camille L. Zentner, Note, Between the Hockey Rink and the Voting Booth: The ADA and Abrogation of Sovereign Immunity in the Educational Context, 71 Brook. L. Rev. 589 (2005). From the introduction:

This Note will argue that Lane prescribed the result in Association for Disabled Americans and that McNulty, in contrast, took an inappropriately narrow view of Lane by summarily foreclosing the possibility of maintaining private actions for education claims under the ADA Title II solely because education is not considered a fundamental right under the Federal Constitution. Although the Lane Court gave substantial weight to the fact that the right at issue was access to courts, the fundamental nature of the right is not entirely controlling in the determination of whether federal legislation, and specifically the ADA Title II, may properly abrogate states' immunity to private suits pursuant to the Fourteenth Amendment's section 5 power. Association for Disabled Americans acknowledged this but did not engage in a comprehensive analysis of the claim in the educational context sufficient to support future differentiation from claimed violations in other public service contexts. In arguing that the Eleventh Circuit reached the proper result, this Note also seeks to supplement the Eleventh Circuit's analysis in two ways: First, this discussion more thoroughly demonstrates why the educational context presents a special case for valid abrogation. Second, it argues that abrogation is valid with regard to claims that implicate either the due process or equal protection guarantee.

Part II will briefly discuss the scope, purpose, and requirements of the ADA generally and Title II specifically. Next, Part III will discuss the evolution of the abrogation analysis and what the Lane decision added to the established standard, specifically addressing the question of whether Title II validly abrogates sovereign immunity. Part IV will illustrate, using the case examples of McNulty and Association for Disabled Americans, how courts should apply this standard acknowledging that the fundamental right consideration was not dispositive in Lane. The McNulty court should not have dismissed the claim under Title II relying solely on the premise that when a nonfundamental right is at issue, the ADA's abrogation of sovereign immunity under Title II cannot under any circumstances be valid. Association for Disabled Americans reached the proper result but should have also engaged in a thorough abrogation analysis sufficient to support future similar decisions in the context of public education. This last part of the Note will suggest a comprehensive alternative analysis that district courts, like the McNulty court, should use to maintain consistency with precedent, including Lane. Unlike the McNulty court's method, this analysis considers the impact of the educational context on the abrogation question.

Eighth Circuit Rules Parking Placard Fee Violates ADA Title II

Yesterday, the Eighth Circuit issued its latest opinion in Klingler v. Missouri Department of Revenue. The case involves a challenge, under Title II of the ADA, to Missouri's annual charge of $2.00 for a disabled parking placard that can be moved from car to car. (A disabled license plate, which cannot be removed from the car, is free.) This is the third time the case has been before the Eighth Circuit. In its first opinion in the case, the court held that the Eleventh Amendment barred a money damages recovery but that an Ex parte Young suit could proceed for injunctive relief. On a subsequent appeal, the Eighth Circuit held that Congress lacked power under the Commerce Clause to ban the state's collection of the $2.00 annual fee, so the Ex parte Young suit could not proceed either. The Supreme Court then vacated and remanded for further consideration in light of Tennessee v. Lane and Gonzales v. Raich (the medical marijuana case from last Term). Yesterday's opinion announced the Eighth Circuits decision on remand.

Because the state had abandoned its constitutional challenge to the Ex parte Young aspect of the suit, the Eighth Circuit moved to the merits. Applying the principle that a state cannot charge people with disabilities a fee to pay for an accommodation required by the ADA, the court concluded that the $2.00 annual fee was just such an impermissible surcharge: "We think that a program is "required," as that word is used by the statute, if in fact it discharges an obligation imposed by the ADA. Missouri has elected to use parking placards to ensure that disabled people have access to government programs. Having made that decision, Missouri is prohibited from imposing a surcharge on disabled people for placards that are necessary to use reserved parking spaces." The court also noted that the placard program "also helps private entities meet their obligations under Title III to provide 'full and equal' accommodations to disabled persons." "Although the ADA and its implementing regulations do not require Missouri to police reserved spaces set aside by private businesses," the court concluded that "its decision to do so obligates it to provide the spaces free of charge."

The Eighth Circuit refused to reinstate the damages claim, however. It ruled, consistently with the court's earlier ruling in the Bill M. case, that Lane did not, outside of the access-to-courts context, displace Eighth Circuit precedent holding the abrogation of state sovereign immunity in ADA Title II to be invalid.

Supreme Court Decides Oregon "Death With Dignity" Case

Greetings from the Little Rock airport. Between travel and a raging headache, I was unable to post anything yesterday, but a fair amount happened. The big news is that the Supreme Court decided Gonzales v. Oregon, the case involving the Bush Administration's effort to use the Controlled Substances Act to make it effectively unlawful for doctors to carry out Oregon's physician-assisted suicide law. In an opinion by Justice Kennedy, the Court held that the Bush Administration's interpretation was inconsistent with the statute. Unless Congress changes the law, then, physicians can participate in assisted suicides under the Oregon law without fear of federal penalty. Justices Stevens, O'Connor, Souter, Ginsburg, and Breyer joined Justice Kennedy's opinion for the Court. Justice Scalia filed a dissent, joined by Chief Justice Roberts and Justice Thomas. And Justice Thomas also filed his own dissent.

For Linda Greenhouse's coverage of the case for the New York Times, see this article. Also look at this news analysis in the Times. Here's Charles Lane's coverage from the Washington Post, here's David Savage's coverage from the Los Angeles Times, here's Joan Biskupic's coverage from USA Today, here's Tony Mauro's coverage from law.com, and here's Lyle Denniston's coverage for scotusblog.

Another Attack on Serial ADA Litigation

From the Sacramento Bee, here.

Two New Disability Books

Just across my desk: Martha Nussbaum's new book, Frontiers of Justice: Disability, Nationality, Species Membership (2006); and the edited volume Critical Disability Theory: Essays in Philosophy, Politics, Policy, and Law (2005). Nussbaum is the one fancy political theorist (or at least the fanciest) who takes disability issues seriously, and the Critical Disability Theory volume has articles on an array of interesting topics.

Australia in Dark Ages on Disability

See this article by that title. It begins:

AUSTRALIA is an apartheid nation! It sounds shocking but sadly, for many Australians, it's a reality. Australians with disabilities are segregated from mainstream society, discriminated against in almost every facet of public and private life and disempowered from making even the simplest decisions over their everyday lives.

Our bodies and our homes are owned by those who regulate our lives and keep us apart from the wider community; special schools, housing, access, toilets, parking, hotel rooms and, of course, special taxis. But why are the needs and aspirations of people with disabilities treated as no more than an afterthought?

Qantas's decision to ban passengers with disabilities if they use an electric wheelchair is a sad indictment of society's attitudes.

Disability Chief Denied Help

See this article from Britain by that title. It begins:

The head of the Disability Rights Commission was left stranded by staff at London's Euston station after there was no one to help him onto a train.

Bert Massie, a wheelchair user, said staff told him they were too busy to help him board the Virgin West Coast train to Liverpool.

And in the Dept. of Good Timing:

The incident comes at a time when the DRC is about to launch an advertising campaign to highlight discrimination and indignity experienced by disabled people on a daily basis.

Mr Massie says it is often not simply a matter of wheelchair users being able to catch the next available service.

"There are only three seats on every train that a wheelchair user can occupy - if they're pre-booked, we have to wait for a train that does have space."

Mr Massie blamed Network Rail's management for not having sufficient staff at Euston and for using untrained security workers to assist disabled people.

DOJ Settles Movie Theater Suit

See this AP dispatch, which begins:

A Massachusetts-based movie theater chain has agreed to alter 86 of its stadium-style auditoriums in five states to improve views for people in wheelchairs, under a settlement announced on Monday.

National Amusements Inc. also agreed that its new theaters will be designed with improved wheelchair seating.

If approved by a judge, the agreement would end the Justice Department's five-year-old lawsuit alleging the Dedham-based company violated the Americans with Disabilities Act by failing to give the disabled seating comparable to the general public.

Law.com on US/Goodman

Article is here.

Fourth Circuit Says Elimination of Body Waste is a Major Life Activity

See the opinion in Heiko v. Columbia Savings Bank, issued today. This wouldn't be surprising except for the fact that the district court had held that it wasn't.

Thanks to How Appealing for the tip.

Greenhouse on US/Goodman

Linda Greenhouse's article on the Supreme Court's decision is here.

Ragged Edge on California "Opportunity to Repair" Initiative

See this article, which begins:

California access advocates are preparing for battle once again. This time they'll be fighting "that vagary of California self-governance called the 'initiative,'" as Californians for Disability Rights president Laura Williams puts it.

The initiative, being readied to put before voters, is now deceptively named "The Opportunity to Repair Act of 2006." In fact, say advocates, it's the latest plan backed by California's business community to remove the teeth from California access laws.

California is one of few states that currently allows people who have been harmed by the denial of access to file suits for monetary damages for discrimination. The state's business community has tried for years to get rid of this damages provision. But bills before the state legislature have so far failed. . The new initiative -- which activists call an end-run around legislators -- is the latest attempt to remove the damages provisions from California's access law. ]

The current initiative, if passed, would also remove the ability of attorneys to receive payment for their legal fees in access suits.

Goodman Coverage

Here's Lyle Denniston's dispatch. Here's an AP story. Here's the Bloomberg dispatch.

Court Decides US/Goodman v. Georgia

This morning, almost exactly two months after the argument, the Supreme Court issued its decision in the companion cases of United States v. Georgia and Goodman v. Georgia. The case involved the constitutionality of the ADA's abrogation of state sovereign immunity in the state prison context. The Eleventh Circuit had held that plaintiff Goodman's claims were barred by sovereign immunity because Title II of the ADA is not valid Fourteenth Amendment enforcement legislation in the prison context.

The Supreme Court reversed, in a unanimous opinion by Justice Scalia. The Court observed that Mr. Goodman's ADA claims "were evidently based, at least in large part, on conduct that independently violated the provisions of s. 1 of the Fourteenth Amendment" (and the Bill of Rights protections incorporated therein). "While the Members of this Court have disagreed regarding the scope of Congress's 'prophylactic' enforcement powers under s 5 of the Fourteenth Amendment," the Court's opinion stated, "no one doubts that s 5 grants Congress the power to 'enforce . . the provisions' of the Amendment by creating private remedies against the States for actual violations of those provisions." Accordingly, at least "insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity."

Because it was unclear to what extent Mr. Goodman's ADA claims went beyond conduct that actually violates the Constitution, and the Eleventh Circuit, in the case under review, had already remanded to permit Mr. Goodman to file an amended complaint, the Court left it to the lower courts "to determine in the first instance, on a claim-by-claim basis, (1) which aspects of the State's alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid." Justice Stevens, joined by Justice Ginsburg, filed a brief concurrence emphasizing that the entire "contellation of rights applicable in the prison context," and not merely Eighth Amendment rights, are relevant to the Section 5 issue in the prison setting.

This is a somewhat narrow win for the plaintiffs (and their counsel, who included Seth Galanter, Beth Brinkmann, and Drew Days, all of Morrison and Foerster, as well as me), but it is hardly as narrow as it could have been. The state and its amici argued that the ADA is not ever valid prophylactic Section 5 legislation as applied to the prison context. Rather than endorsing or rejecting that argument, the Court left the issue open.

But what's most important about this case is that the Court made clear, really for the first time, that the ADA is valid remedial Section 5 legislation in any case in which the state conduct that violates the ADA also violates the Constitution. There is no requirement that the plaintiff show a history and pattern of past state constitutional violations in such cases; the fact that the conduct challenged by the plaintiff violated the Constitution is enough. The Court's decision also made clear that the as-applied analysis in Tennessee v. Lane was not a sport; the constitutionality of any application of the ADA must be determined "on a claim-by claim basis." (That doesn't mean that an entire category of applications can't be upheld as constitutional. Often, as in Lane, the same reasons that make the ADA proper as applied to one plaintiff's claim will equally well apply to an entire "class of cases.") Lower courts, like the Eighth Circuit in Bill M., that have held that an as-applied analysis may be employed only in the access-to-courts context, should see this as a rebuff.

Settlement of Memphis Title II Case

See this article, which begins:

The city of Memphis and residents who have disabilities have reached a settlement in a lawsuit.

The city agreed to come into compliance with the Americans with Disabilities Act, which could cost millions of dollars.

The settlement requires the city to make access improvements to all public facilities completed after 1992, the year the federal act took effect.

The suit was first brought in 1998 on behalf of the residents by attorney Christopher Gomlicker. He says the settlement will affect thousands of people, from elderly walkers to young parents pushing strollers.

Voting Accessibility News From Tennessee

See this article, which begins:

Work has begun to bring 16 voter polling places in Greene County into compliance with the Americans With Disabilities Act in time for elections in May.

“We’ve finished the process to determine which precinct polling places need improvements,” County Mayor Roger Jones said this week during a tour of three polling places that need the most work.

The Greene County Commission voted late last year to spend up to $1,500 per polling place to achieve compliance with the Americans With Disabilities Act.

Of the county’s 36 precinct polling places, “16 need something done,” Jones said. “A lot of the work is as simple as replacing hardware,” he added.

For example, all 16 precincts need to have doorknobs replaced with lever-operated door openers.

Several of the precincts need to have doors that are too narrow replaced. Jones and Dave Wright, the architect for the project, said doors need to be 36 inches wide to meet ADA requirements.

In addition, Jones and Wright said, several of the polling places will need handicapped access ramps, though in some cases these ramps will only need to rise a few inches.

Twelve of the polling places will have to have two handicapped parking spaces either paved with asphalt or paved with concrete, and connected by a hard-surface sidewalk to the door, Jones said.

Griffin Sworn in at EEOC

See this from the Washington Post:

The bipartisan Equal Employment Opportunity Commission returned this week to full strength for the first time in 17 months with the swearing-in Tuesday of Christine M. Griffin as a commissioner on the five-member panel.

Griffin, the former executive director of the nonprofit Disability Law Center of Massachusetts, will serve the final three years of an unexpired five-year term that ends in July 2009 and will be paid $143,000 a year. She fills the seat vacated by Paul Steven Miller in August 2004, when he resigned after a decade of service to become a professor at the University of Washington School of Law.

D. Mass. Refuses to Enjoin Accessibility at Copley T Stop

In a decision issued on December 28, but just now on Westlaw, Judge Tauro of the U.S. District Court for the District of Massachusetts refused to issue a preliminary injunction against the project to make the Copley T stop accessible. A neighborhood preservation association had sued and alleged that the accessibility plan would harm aspects of historic significance in the Copley Square area. Good for Judge Tauro. The case is Neighborhood Ass'n of the Back Bay, Inc. v. Federal Transit Admin., 2005 WL 3588421 (D.Mass., Dec. 28, 2005).

Medi-Cal Cut Threatens Poor, Disabled

See this article by that title from yesterday's LA Times.

Myrtle Beach Accessibility Suit

See this article, which begins:

Two disabled visitors have sued Myrtle Beach because they say the city's beach accesses are inaccessible to people in wheelchairs.

In the suit filed Aug. 29, Linda Vandeusen, a resident of Columbia, and Edward Law, a resident of Orlando, Fla., ask for undisclosed monetary damages; attorney's fees; the cost of the lawsuit; and an injunction forcing the city to alter beach access, parking and bathroom facilities to comply with federal and state laws.

The lawsuit accuses the city of constructing a walkway with steps to the beach when it was previously a flat access route but does not specify the location. Other complaints include that the city's portable bathrooms lack bars for the disabled and that the city's handicapped parking is flawed because of drains, steep slopes and incorrectly drawn spaces.

U.S. Magistrate Thomas E. Rogers III's scheduling order requires mediation by Aug. 11 and sets the trial day as Nov. 1.

Both plaintiffs use wheelchairs and visited Myrtle Beach during the past couple of years. Vandeusen is disabled as defined under the Americans With Disabilities Act as a result of dystonia, a neurological movement disorder characterized by involuntary muscle contractions. Law is a quadriplegic as a result of a diving accident in 1987.

City spokesman Mark Kruea said many but not all of the city's beach accesses are handicapped-accessible. The city also offers free beach-going wheelchairs and employs a person to make sure the city is ADA compliant, he said.

Kruea said city policy prevents him from commenting on pending legislation but said, "The city facilities are accessible to people with disabilities."

Vandeusen is a member of Advocates for Disabled Americans and recently has filed suits against numerous municipalities and businesses, including Lexington County; Richland County; a Charleston-area hotel, gas station and International House of Pancakes; a Lexington Applebee's; a Hilton Head Island Comfort Inn; and a mall in Greenville.

"I'm trying to have accessibility to things that we people with disabilities should have access to," she said by phone.

Law, also an AFDA member, filed suit this year against the Breakers Resort and Carrabba's Italian Grill, both in Myrtle Beach.

He could not be reached for comment.

Vandeusen declined to talk about her experience in Myrtle Beach or to say which beach accesses were inaccessible.

"The ones they say are accessible aren't," she said.

Vandeusen referred other questions to her and Law's New Jersey-based attorney, Anthony Brady.

Brady said Myrtle Beach needs pathways onto the beaches that normal wheelchairs can access. The city's beach wheelchairs are too heavy for a disabled person to operate without assistance, he said.

Brady said all the city's beach accesses were inaccessible to the disabled and that Hilton Head Island's beach accesses are a model for Myrtle Beach to follow.

Missouri to Reverse Some Medicaid Cuts?

See this article from the Kansas City Star. It begins:

Some legislators denounced waste, fraud and abuse last year as they repealed a Medicaid health care program for the working disabled.

Now it appears lawmakers are poised to re-enact a trimmed-down version of that program in 2006 - an acknowledgment, essentially, that last year's cuts went too far.

When lawmakers convene Wednesday, a new Medicaid plan for the working disabled will rank among the priorities in the House. And it will carry the endorsement of a joint House and Senate committee created to recommend reforms to the Medicaid program.

"There could be a lot of people saying we're backtracking or `See, you were wrong,'" said House Speaker Rod Jetton, R-Marble Hill. But "you don't always know the consequences of any bill you pass until it actually goes into place. As we hear the feedback and as your budget situation improves, you look to see what you can do" - or in this case, restore.

Jetton is backing a bill by Rep. Chuck Portwood, R-Ballwin, that would start a new version of the repealed program called Medical Assistance for Workers with Disabilities, or MAWD. Portwood says more than 40 legislators already have signed on as sponsors, and he predicts the bill could pass the House within the first 30 days of the session.

The momentum for the reversal appears to come partly from the 7,250 mentally disabled Missourians employed in 93 sheltered workshops around the state. They are paid below minimum wage to perform basic tasks such as shredding documents or packaging products for other companies. And many depend on Medicaid for their health care.

Limits of Irish Disability Act

See this article. An excerpt:

Boiled down, this is what the Disability Act has to say about access where people with disabilities are concerned. It says public buildings should be accessible to them if that is practicable.

It says there should be a code of practice, but the minister can reject it. If the minister accepts the code of practice, public bodies have to comply with them “to such extent as is practical having regard to (their) resources and obligations”.

The act goes on to say that most public buildings will have to comply with accessibility regulations by 2015 - yes, 2015! - unless, of course, “making the building accessible to persons with disabilities would not be justified, on the grounds of cost, having regard to the use to which the building is put.”

There is even a section of the bill that requires heritage sites to be made accessible. But the bill hastily adds that “nothing in this section shall be construed as authorising or requiring the adaptation or modification of any heritage site contrary to law”.

I don’t honestly think that people with disabilities expect the entrance to the chamber at Newgrange to be widened to allow a wheelchair in, or to have lifts installed in the round tower at Glendalough. But it’s clear from such sections that the drafters of the act felt the need to protect themselves from anyone in the disability community who might be feeling litigious. The good news about the Disability Act 2005 is that it proposes the appointment of an enormous army of people to ensure that citizens with a disability get their rights.

There will be liaison officers, assessment officers, complaints officers, appeals officers, enquiry officers, yet more complaints officers, and if all that fails, there will be recourse to the ombudsman.

The bad news is that since the act contains no rights whatsoever, this army of officers will find itself rather redundant. Every single time the act imposes an obligation to make something accessible, it immediately waters it down to the point of non-existence.

And you might have noticed in everything I’ve said about the act that I talked only about public buildings. That is because the act is completely silent on the subject of private buildings. So access to the department stores, restaurants, pubs and hotels of Ireland will continue to be a matter entirely at the discretion of the proprietors of those establishments.

While many have made genuine efforts, there are many others who subconsciously cling to the notion that people with a disability have only themselves to blame.

Does that seem harsh? Next time you see a person in a wheelchair unable to gain access to a pub, ask yourself could it really be the case that his or her wheelchair is too wide. Or is it just possible that the door was designed without the slightest thought being given to the needs of a person in a wheelchair?

NEXT time you see a blind person being slashed by the branches of an overhanging tree, ask yourself why no-one seems to have any obligation to keep trees pruned away from the public path.

I have said it many times before in these pages - these things are a function of public attitudes. They result in a form of second-class citizenship.

Failing Our Disabled People

See this dispatch by that title from Edinburgh. It begins:

COMPANIES across the Lothians are still not providing adequate facilities for disabled people more than a year after new laws came into force, campaigners claimed today.

The Disability Rights Commission Scotland says the situation is so bad that it is looking to pursue legal action against some of the worst offenders.

Retail and leisure providers, including pubs, restaurants, shops and health clubs, could face action unless they take steps to improve their facilities. The final part of the Disability Discrimination Act, which was introduced in October 2004, called on service providers to make access easier for disabled people, either by removing barriers to service or by offering their service in different ways.

In accessing public services, all disabled people have the right not to be treated "less favourably". But disability support groups say the lack of action taken by some companies is a "huge problem".

A spokeswoman for Capability Scotland said: "There are large numbers of shops, business and service providers in the area that have not made adequate changes.

"We have found that among the main offenders are multi-national companies and major banks, who seem to take little notice of the laws. We also found that there was not a single council in Scotland that is fully accessible.

"Business and service providers shouldn't look at this as an onerous duty, but rather a business benefit as it will get more customers in."

Sounds familiar.

Pennsylvania Disability Rights Groups on Alito Nomination

See this press release. An excerpt:

Leaders of four disability rights groups will hold a lunch briefing on Thursday, January 5th, at 12:30 on the nomination of Samuel Alito to the U.S. Supreme Court and his record on civil rights and its effects on the disability community. Tom Earle from Liberty Resources, Inc., Robert W. Meek with the Disabilities Law Project, Joseph A. Rogers of the Mental Health Association of Southeastern Pennsylvania and Ellen Buchman from the Leadership Conference on Civil Rights will host the discussion at the Philadelphia Foundation, 1234 Market Street, 18th Floor, Philadelphia.

"The disability rights community cannot afford to take a wait-and-see approach in regard to Judge Alito; his paper trail makes it clear that his appointment to the U.S. Supreme Court would be disastrous for people with disabilities," said Joseph A. Rogers, President and CEO of the Mental Health Association of Southeastern Pennsylvania.

"Judge Alito's record places him well outside the mainstream and clearly to the right of Justice Sandra Day O'Connor, a frequent swing vote on cases involving disability rights," said Thomas Earle, civil rights attorney and Executive Director of Liberty Resources, Inc. "We call on Senator Specter to oppose Samuel Alito's nomination to the United States Supreme Court. His confirmation would put at risk the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, the Fair Housing Amendments Act, the Family and Medical Leave Act (FMLA) and other laws of importance to people with disabilities throughout Pennsylvania."

Robert Meek, a lawyer with the Disabilities Law Project, said, "Judge Alito's troubling decisions -- which tend to favor corporations over individuals with disabilities, limit the exercise of legitimate congressional power to enact legislation to effectuate the rights of people with disabilities and give very narrow readings to laws enacted to protect the rights of people with disabilities -- should be a cause of concern for the disability community. We call on Senator Specter to be mindful of the disability community's position as he leads the Judiciary Committee's consideration of Judge Alito's nomination."

Eighth Circuit Definition-of-Disability Case

Also while I was away, the Eighth Circuit issued an interesting decision in Nuzum v. Ozark Automotive Distributors, Inc.. It's a straightforward ADA Title I case. The plaintiff, a warehouse worker, was diagnosed with tendinitis and limited by his doctors to "lifting ten pounds constantly, twenty pounds frequently, and forty pounds occasionally." Once his employer determined that the restrictions were permanent, it refused to modify the plaintiff's job requirements to accommodate the disability, and it eventually terminated him.

Upholding summary judgment for the employer, the Eighth Circuit held that the plaintiff had no disability for ADA purposes. That bottom-line holding is not shocking, but the court said some interesting and perhaps troubling things in getting there: (1) that lifting is not "a major life activity in its own right" but is better understood as "part of a set of basic motor functions that together represent a major life activity"; (2) that "although the motor functions listed in the EEOC definition [of "major life activity"] are designated as major life activities in their own right, . . . a finding of disability depends not on whether the plaintiff can perform every one of those functions, but on whether the net effect of the impairment is to prevent or severely restrict the plaintiff from doinging the set of activities that are 'of central importance to most people's daily lives' or from working" (citations omitted); and (3) where an ADA plaintiff requests a reasonable accommodation for an impairment, the accommodation must relate to the "major life activity" that forms the basis for the plaintiff's claim of disability.

A couple of thoughts about the second and third of these statements: Statement number 2 expands the Supreme Court's holding in Toyota v. Williams, which said that the major life activity of "manual tasks" isn't substantially limited unless tasks of central importance to most people's daily life are limited. But it's not clear why the same analysis should extend to other major life activities. And statement number 3 is not clearly right, either. One point many disability rights activists make is that nondisabled people get accommodated all the time; it's only when disability enters the picture that employers don't want to accommodate. That kind of discrimination could occur whenever an individual has a condition that an employer thinks of as a disability, even if the limitation that makes the condition disabling for statutory purposes is not the limitation that the employer is refusing to accommodate. If both limitations from the same underlying condition, there isn't any good reason of policy for distinguishing between them. Nor is there a good statutory reason: the ADA requires "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability" (emphasis added) -- not reasonable accommodations "to the disability" or "to the substantial limitations on a major life activity." For this reason, the Eighth Circuit's discussion seems inconsistent with the analyses of those courts that have required reasonable accommodation to individuals "regarded as" disabled.

People with Disabilities and the Medicare Prescription Drug Plan

See this commentary. Thanks to Paul Secunda for the link.

Surprisingly Controversial Ninth Circuit Employment Case

While I was away, Howard Bashman sent me a link to the Ninth Circuit's recent decision in Josephs v. Pacific Bell. The case has already gotten some blogospheric reaction, so I thought I'dd add my two cents.

The basic story is this: Josephs worked as a service technician for PacBell. On his job application, he checked "NO" in response to a question whether he had ever been convicted of a felony or misdemeanor. In fact, he had been convicted of a 1982 misdemeanor battery of a police officer; in 1982, he was also found not guilty by reason of insanity of a charge of attempted murder. He then spent about three years in mental health institutions. When PacBell learned this, it discharged Josephs for lying on his job application. Josephs grieved the termination, and during the grievance process he got his misdemeanor conviction expunged. He then asked to be reinstated. In the past, the company had reinstated at least three other employees who were fired for lying about misdemeanor convictions and subsequently had them expunged. But PacBell refused to reinstate him. A PacBell Vice President said, according to the court, that "unlike the other employee, Josephs had spent time in a 'mental ward,' and that Pac Bell could not afford to have people out there who had been released from a mental institution." Josephs sued under ADA Title I. The jury found that the initial termination was not discriminatory, but that PacBell's refusal to reinstate Josephs was. The jury found, in special verdicts, that PacBell regarded Josephs as having a disability and that the company refused to reinstate him because of his disability. The Ninth Circuit, in an opinion by the noted commie Edward Leavy, affirmed, though Judge Callahan dissented.

I guess I don't understand the problem here. As the majority describes them, the facts before the jury certainly supported a finding of discrimination. Josephs wasn't reinstated after expungement when others who lied about their misdemeanor convictions were. Why? Because he had spent time in a "mental ward." Sounds like the reason was the disability they regarded Josephs as having, doesn't it? So I don't understand why Judge Callahan thought the other reinstatements were irrelevant. They were the comparators that prove that Josephs experienced disparate treatmente.

Maybe PacBell thought that Josephs would be a danger to their customers because of his history. (That's what Judge Callahan led her dissent with.) But the ADA requires an employer to prove that an employee's disability presents a significant risk to the health or safety of others, not just assume it does. (Pace Paul, I don't see any reason why the "direct threat" provision shouldn't apply here.) As even Judge Callahan noted, Josephs presented "evidence to support his contention that his past does not create any likelihood of future dangerousness." Judge Callahan seemed to be upset that the district court didn't put the burden on Josephs to prove that he wasn't dangerous. But (a) that's inconsistent with the notion that direct threat is a defense that the employer must prove; and (b) Judge Callahan doesn't point to any evidence PacBell introduced to show that he was dangerous other than their reflexive fears.

Based on the facts reported in Judge Leavy's majority opinion, I think it would have been outrageous if this case had gone the other way.

AALS Program on Disability Law

I'm back, and going through all the many tips my wonderful readers sent me in my absence.

For any law professors who might stop by this site, Ann Hubbard sends along this message:

AALS Open Program

Friday, January 6, 2006 8:30 – 10:15

Disability Law Throughout Law School and University Curricula

Disability law issues are relevant across the law school curriculum. There are legal issues about parents and guardians with disabilities; domestic violence and other forms of abuse directed at people with disabilities; the needs and rights of students with disabilities; workplace qualifications, limitations and accommodations; licensing and certification of professionals and persons in public safety positions; equal access to government benefits, programs and services; the effect of disabilities on the freedom to enter into contracts, to marry, to procreate and to direct the course of one’s life; and genetic testing, end-of-life decisions and the allocation of finite health care resources, among many others.

An open program at the AALS meeting will examine the growth and evolution of the field of disability law and its applicability across the law school curriculum and as part of wider interdisciplinary studies. Three pioneers in the field will speak about how disability law has come into its own and how disability theory has informed law and other disciplines. To illustrate how disability law can enrich other law school courses, two scholars will address disability law issues in criminal law and health law curricula.

The distinguished presenters for this panel are:

Laura Rothstein (Louisville) The Evolution of Teaching Disability Law

Ruth Colker (Ohio State) Integrating Disability Law into the University Curriculum

Arlene Kanter (Syracuse) Disability Law within Law School and Beyond

Camille Nelson (St. Louis) (Dis)Ability, Race and the Criminal Law Curriculum

Ani Satz (Emory) Integrating Disability into Health Law Courses

This presentation is part of an initiative to create an AALS Provisional Section on Disability Law. Following the program, you will have the opportunity to learn more about the proposed Section and to sign a petition supporting it. On behalf of the organizers of this proposed Section, I welcome your support and interest and hope to see you at this program Friday, January 6 at 8:30 am.

Ann Hubbard