Crossley on Health Insurance Discrimination Against the Unhealthy

New on Westlaw: Mary Crossley, Discrimination Against the Unhealthy in Health Insurance, 54 U. Kan. L. Rev. 73 (2005). From the introduction:

The observation that increased copayment requirements and consumer-driven vehicles such as health savings accounts may disproportionately burden the unhealthy is not novel. Indeed, concerns about the inequity of this burden have been voiced at least since the policy debates over including a medical savings accounts demonstration project in HIPAA. This Article reviews the policy arguments for and against the shifting of insurance risk to individual health-care consumers, but then moves beyond partisan debate to examine emerging research on the impacts of risk shifting. This research suggests that the repercussions do not simply impose heavier financial costs onto unhealthy individuals; they also affect health-care consumption and, ultimately, health status. In sum, newer forms of coverage may leave unhealthy individuals underinsured and thereby exposed to many of the same harms that uninsured persons face.

In the end, this Article briefly suggests reasons for objecting to and seeking to curb the trend toward the shifting of risk to individual insureds. First, we might find the disproportionate burden visited upon the unhealthy troubling because of a sense that this disparate impact is somehow associated with social inequality and violates their civil rights. Alternatively, we might understand the inequality of burdens as indicating an unjust distribution of consumerism's benefits and burdens.

N.D. Ill.: Title II Not Valid Section 5 Legislation in Education

Disagreeing with rulings from the Fourth and Eleventh Circuits, Judge Kennelly of the U.S. District Court for the Northern District of Illinois has held that Title II of the ADA does not validly abrogate state sovereign immunity in the education context. The case involved a medical student with learning disabilities, who contended that the University of Illinois failed to accommodate his disability. The court dismissed the damages claim. It reasoned:

The Court finds itself in respectful disagreement with the Fourth and Eleventh Circuits. Title II imposes a number of burdens on all public entities, including the state university that is a defendant in this case. These entities must provide reasonable accommodations for recipients of services with disabilities, 28 C.F.R. § 35.130(b)(7), ensure their existing facilities, when viewed in their entirety, are accessible to people with disabilities, 28 C.F.R. § 35 .150, and ensure that any new or renovated facilities are accessible to people with disabilities. 28 C.F.R. § 35.151. There are exceptions to Title II's mandates: public entities need not make fundamental alterations to their programs, 28 C.F.R. § 35.130(b)(7), or incur undue financial burdens in ensuring that their facilities are accessible to people with disabilities. 28 C.F.R. § 35.150(3). There is no question, however, that these requirements, along with the threat of monetary damages if the entities fail to meet them, impose a significant burden on the states. In Lane, the Supreme Court determined that Congress, pursuant to section five of the Fourteenth Amendment, could impose these obligations on the states with respect to access to courthouse facilities because access to the courts is a fundamental constitutional right. The difference in this case is that education, despite its undoubted importance, is not considered by the Supreme Court to be a fundamental constitutional right. See San Antonio Independent Sch. Dist. v. Rodriguez, 411 U.S. 1, 35-37 (1973). For these reasons, the Court concludes that Title II, as applied to the postgraduate state university program at issue in this case, exceeds Congress's power under section five. See Lane, 541 U.S. at 530-35; see also Walker, 213 F.3d at 346-47 (finding that Title II failed to abrogate the Eleventh Amendment to the extent it required states to accommodate rather than disregard disabilities and forbade states from “tak[ing] account of disabilities that are rationally permissible objects of public action.”).

The case is Doe v. Board of Trustees of the University of Illinois, 2006 WL 1084284 (N.D. Ill., Apr. 20, 2006).

Visit Ruth Colker's Webpage

Ruth Colker, perhaps the leading American scholar of disability law (though she does lots of other stuff, too), has a new website up. Check it out.

Connecticut Adds Depression Question to Bar Application

See this piece on law.com. It begins:

If Abraham Lincoln were alive, he would encounter several difficulties gaining admittance to the Connecticut Bar -- assuming he deserved his reputation both for honesty and for 'melancholia.'

That's because the state's Bar Examining Committee has re-introduced depression as one of the conditions listed on the mental health section of the bar application. Depression made the list in July 2000, but public outcry led to its removal -- until now.

The amended question 35 for the July 2006 application is one of several changes that has reignited a fiery reaction from opponents, who view the wording of the CBEC's mental health inquiry -- which includes a request for psychiatric records -- as an unconstitutional invasion of privacy.

"I was really shocked when I saw these new questions," said Jon Bauer, a clinical law professor at the University of Connecticut. "This could be a major disincentive for people to seek treatment" for health matters, out of fear of repercussions following disclosure.

A 12-year effort to align the state's bar application questions with the federal Americans with Disabilities Act hit a snag when, on March 3, the full CBEC voted to add to the current list of conditions requiring disclosure.

By adding depression to an inquiry that identifies mental health and chemical or psychological dependency matters, the CBEC has broadened rather than narrowed the scope of an already too extensive set of 50 questions, Bauer said.

This is pretty amazing. I wonder what was the crying need for this change.

Tenth Circuit Sends Guttman Back to District Court for As-Applied Review

Yesterday, the Tenth Circuit issued its remand opinion in Guttman v. Khalsa. The case is a doctor's ADA Title II challenge to proceedings in which his license was revoked. In its original opinion, the Tenth Circuit held that the suit was barred by the Rooker-Feldman doctrine (an obscure procedural doctrine that bars lower federal courts from hearing appeals from state courts). But the Supreme Court, in an order I blogged about here, summarily vacated that decision and remanded for further consideration in light of an intervening Supreme Court case that made clear that the Rooker-Feldman doctrine is narrow.

In yesterday's opinion, the Tenth Circuit ruled that under current Supreme Court precedent Dr. Guttman's case is not barred by the Rooker-Feldman doctrine. Although the district court had also dismissed Dr. Guttman's claim on the ground that Title II of the ADA does not validly abrogate sovereign immunity, the court of appeals held that the district court had to reconsider that decision in light of Tennessee v. Lane and U.S. v. Georgia. The Tenth Circuit read Georgia as:

la[ying] out a procedural roadmap explaining how Title II claims against a state should proceed:

Once Goodman's complaint is amended, the lower courts will be best
situated 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.

Id..

Because of our holding in Thompson [a pre-Lane decision that held Title II invalid across the board], the district court did not address whether the plaintiff stated a claim that New Mexico violated Title II of the ADA. Under the Supreme Court's decision in Georgia, we must remand the case to the district court so that it can determine whether Guttman properly alleged violations of Title II. When doing so, the district court also will be able to determine whether Guttman's claims are otherwise barred because they are precluded by res judicata or collateral estoppel.

If the district court decides that Guttman did state a valid claim under Title II, it must then determine whether Congress abrogated sovereign immunity as applied to the class of conduct at issue in this case. Georgia, 126 S. Ct. at 880-81. If his Title II claims against New Mexico also constitute an independent constitutional violation, Guttman may proceed with those claims against the state. Id. If Guttman has stated a valid Title II claim that is not also an independent constitutional violation, the district court must conduct the Lane analysis to determine whether Title II abrogated sovereign immunity for an as applied challenge.

The Tenth Circuit then offered a defense of the as-applied procedure laid out in the Georgia opinion:

The procedural rule laid out in Georgia is wise. Before a court can determine whether Title II abrogated sovereign immunity as applied to a specific suit, it must know the specifics of the claim at issue. Otherwise, the court would be engaged in a guessing game about what class of conduct is implicated by the complaint. Further, a court that tried to determine whether Title II abrogated sovereign immunity before it determined that a plaintiff actually alleged a Title II violation would risk issuing an advisory opinion.

This is a good opinion that takes Lane and Georgia seriously. Across-the-board invalidations of Title II of the ADA are no longer good law. It's good to see yet another court of appeals recognizing that.

(I should note, in the interest of full disclosure, that I helped Dr. Guttman's attorney with the cert. petition that successfully asked the Supreme Court to grant, vacate, and remand the case back to the Tenth Circuit.)

Jamie Leonard on the Ineffectiveness of the ADA

New on Westlaw: James Leonard, The Equity Trap: How Reliance on Traditional Civil Rights Concepts Has Rendered Title I of the ADA Ineffective, 56 Case W. Res. L. Rev. 1 (2005). From the introduction:

Title I has been rendered ineffective because of reliance on traditional civil rights mechanisms. My thesis is that the integrationist goals of Title I are so different from those of traditional civil rights statutes that it was a mistake to use the latter's concepts and mechanisms in the disability setting. To put the matter glibly, Title I has fallen into the equality trap.

The paradigmatic civil rights statute, Title VII of the Civil Rights Act, rests on the assumption that immutable characteristics such as race, gender, or national origin are irrelevant to valid workplace decisions; consideration of such traits is therefore irrational, whether or not tainted with hostile attitudes. With regard to the inalterable traits addressed by Title VII, we are all equal in the sense that membership in a particular group, ideally, should bear no adverse consequences. Disparate treatment claims under Title VII seek to secure our equality interest in being free from racial or gender biases or stereotypes by promoting even-handed treatment. Disparate impact claims, which attempt to eliminate neutral workplace practices with an unjustifiably greater impact on protected classes, are a partial exception to Title VII's view that immutable traits are irrelevant.

The ADA's great innovation is the adoption of an active, integrationist plan in a civil rights context. By traditional standards it is hardly a theory of equality at all. While Title I of the ADA forbids consideration of irrelevant disabilities, its principal tool is the reasonable accommodation requirement. The command that employers alter working environments in favor of persons with disabilities, recognizes that the defining characteristic of the protected class is relevant to the statutory goals. Beneficiaries of the statute can be deemed equal only in an arcane sense, as proposed by the social model of disability, that their exclusion from society has been caused artificially by third-party attitudes. To be effective, moreover, the accommodation mandate must abandon the traditional focus on improper group-directed intentions and concentrate instead on the objective reasonableness of the employer's conduct in denying an individualized benefit to a particular worker. In my view, carryover provisions from the Title VII model that focus on the employer's state of mind interfere significantly with Title I's ability to meet its integrationist goals.

I elaborate this thesis as follows. Part II of this Article analyzes the three concepts of equality found in Title I of the ADA. Two of these concepts, disparate treatment and disparate impact, are borrowed directly from the Civil Rights Act's Title VII. The former forbids personnel actions that are based on active consideration of disability when the disability is irrelevant to job performance. Similar to Title VII, disparate impact under Title I of the ADA prohibits work rules and qualification standards having an exclusionary effect on persons with disabilities that cannot be justified on legitimate business grounds. The accommodations mandate completes the equality trilogy but bears little--if any--relationship to the Title VII rule structure. Title I requires that employers make "reasonable accommodations," that is, alterations of work rules or conditions, in favor of individual workers that permit them to perform their jobs. Given the ADA's focus on achieving integration through positive workplace outcomes, its desire to alter indifferent attitudes towards persons with disabilities, and the fact that manifestations of disability vary among individuals, it is difficult to see how the Act could achieve its integrationist goals without an accommodations rule. Workplace adjustments, nevertheless, are conceptually distinct from both disparate treatment and impact rules since they require individualized redistributions of employer resources or privilege based on status.

In Part III of this Article, I address the question of compatibility of concepts. An optimist would argue that the accommodations mandate serves a supplementary function, creating enhanced opportunities for workers with disabilities when traditional disparate treatment and impact analysis fail to make a difference. I do not share this view. Rather, I perceive that certain fundamental assumptions of the disparate treatment model are so deeply embedded in the structure of the ADA that they interfere with the integrationist agenda represented by the accommodations mandate. Specifically, that the Act's definition of disability (Part III.A) and its procedural approach to hiring decisions (Part III.B) give controlling influence to the disparate treatment model's view that defining traits are irrelevant and should be filtered out of the personnel process. The ironic effect is to exclude persons from the workplace who might benefit from accommodations once hired. Similarly, I argue in Part III.C that an overly idealistic and moralistic view of accommodation costs has left Title I without an effective mechanism to gauge the consequences of costs of employment. I offer concluding remarks in Part IV.

Supreme Court Considers Insanity Defense

Yesterday, the Supreme Court heard arguments in Clark v. Arizona. The case involves the question whether the Constitution imposes constraints on a state's decision to narrow the insanity defense. Howard at How Appealing has collected a variety of articles on the argument here.

Yet Another Student Note on Perceived Disabilities and the ADA

New on Westlaw: Nicholas R. Frazier, Note, In the Land Between Two Maps: Perceived Disabilities, Reasonable Accommodations, and Judicial Battles Over the ADA, 62 Wash. & Lee L. Rev. 1759 (2005).

Controversial D.Md. Decision on Wheelchair Athletics

As reported here and here, a couple of days ago Judge Davis of the U.S. District Court for the District of Maryland issued a preliminary injunction that requires the Howard County Public Schools to allow Tatyana McFadden, who uses a wheelchair and is a member of her high school track team, to compete in track events at the same time as her teammates (though not actually to compete against non-wheelchair athletes).

Eugene Volokh sees this case as possibly the reductio ad absurdum of PGA Tour v. Martin. Eugene writes:

how can it make sense to have wheelchair racers racing against foot racers? Even if Martin was rightly decided, and the requirement that one walk rather than riding from hole to hole while playing golf isn't really essential to golf, surely the requirement that one run rather than riding is essential to racing, no? You wouldn't have foot racers racing against bicyclists, unicyclists, or swimmers; these are just different sports. And if the response is that it's logically impossible to tell whether they're different sports or not, then that cuts in favor of the dissent in Martin, and against any disability law interference with the rules established by sporting event organizers.

But I don't see the big deal. (I guess I should disclose that I wrote an amicus brief in Martin on Casey Martin's side.) I've read the PI and the motion papers. This order doesn't require the school to have McFadden compete against racers who are on foot -- that really would be comparing incommensurables. It requires the school to let McFadden compete at the same time as others -- and not relegate her, as the school had, to going around the track by herself.

One of the points I tried to make in my Martin amicus brief -- really in a damage-control way -- was that scholastic sports are different from high-level professional sports like the one in which Casey Martin was participating. Scholastic sports do not aim just to choose a victor according to a specified set of rules; they serve educational and participatory functions as well. So it should rightfully be easier for a plaintiff like McFadden to show an accommodation is reasonable than it wast for Casey Martin (who, after all, won his case). Some change even to outcome-affecting rules might be appropriate as a disability accommodation in scholastic sports, even if it wouldn't be appropriate in high-level professional sports.

But here even the Martin issue doesn't arise. McFadden wasn't asking for any change in the rules of the sport, for her or anyone else. She was just asking for the opportunity to run her races while her teammates ran theirs. The order just said the school couldn't shut her out and segregate her, not that it had to let her race against students on foot (races she'd surely win -- compare the wheelchair and on-foot times for any marathon).

Supreme Court GVR's Bill M.

In today's orders list, the Supreme Court granted certiorari in United States v. Nebraska Dept. of Health and Human Services, summarily vacated the Eighth Circuit's judgment, and remanded for further consideration in light of the Court's recent decision in United States v. Georgia.

This is the Bill M. case about which I have previously blogged a lot of times. The case is a challenge to Nebraska practices that the plaintiffs allege put them at risk of unnecessary institutionalization. It its original opinion in the case, the Eighth Circuit held that the state had sovereign immunity against the suit, because Title II of the ADA does not validly abrogate immunity. The court recognized that Tennessee v. Lane upheld the abrogation of sovereign immunity in one class of Title II cases -- those involving access to the judicial process -- but it effectively confined Lane to its facts. Outside of the narrow class of cases involving access to courts, the court held, the Eighth Circuit's pre-Lane precedent -- which held that Title II's abrogation of sovereign immunity is invalid across the board -- continues to prevail.

The plaintiffs petitioned for en banc review, but the Eighth Circuit denied review with three judges dissenting. The Supreme Court then decided United States v. Georgia. As I said at the time, Georgia endorsed an as-applied approach to determining the constitutionality of Title II's abrogation that is inconsistent with the Eighth Circuit's across-the-board approach here.

The Supreme Court's decision to GVR in Bill M. makes clear, I think, that the Eighth Circuit's largely facial approach to evaluating the constitutionality of Title II's abrogation exists on borrowed time. Last year, the Supreme Court GVR'd an earlier opinion in Klingler for further consideration in light of Lane, but the Eighth Circuit, relying on its opinion in Bill M. stuck to its pre-Lane precedent. This second GVR in a year stands as a bit of a rebuke to the Eighth Circuit. The next time the issue is presented to the Eighth Circuit, that court should follow the Supreme Court's approach in Lane and Georgia of considering whether Title II's abrogation is constitutional as it applies to the case before the court or the class of cases like it. That, I think, is the clear message of the Bill M. GVR.

(Disclosure: I helped the plaintiffs with their en banc petition and their filings in the Supreme Court.)

Maine Supreme Court: No "Substantial Limitation" Requirement in the Maine Human Rights Act

Answering certified questions in Whitney v. Wal-Mart Stores, Inc., the Maine Supreme Court on Tuesday ruled that the definition of "disability" for purposes of the Maine Human Rights Act does not incorporate the ADA's requirement that the impairment substantially limit a major life activity. In so holding, the court invalidated a Maine Human Rights Commission regulation that did incorporate the substantially-limits requirement. The court found the statute unambiguous:

The definition of "physical or mental disability" in section 4553(7‑A) includes three categories of covered conditions. Under the first category, a person is covered if he or she has "any disability, infirmity, malformation, disfigurement, congenital defect or mental condition caused by bodily injury, accident, disease, birth defect, environmental conditions or illness." Rozanski, 512 A.2d at 340 (quoting 5 M.R.S.A. § 4553(7-A) (1979)). The second category is "the physical or mental condition of a person that constitutes a substantial disability as determined by a physician or, in the case of mental disability, by a psychiatrist or psychologist . . . ." 5 M.R.S. § 4553(7-A). The third category is "any other health or sensory impairment that requires special education, vocational rehabilitation or related services." Id. Although it is possible for an individual to have a condition that meets all three categories, Rozanski [a 1986 case] establishes that meeting all of them is not a prerequisite for coverage. In Rozanski, an asymptomatic back condition was covered because it was a "malformation" of the spine, 512 A.2d at 340, regardless of the "substantial disability" language in section 4553(7-A).

Another example of state courts avoiding some of the problems that have cropped up under the ADA.

Cerebral Palsy Not a Disability, Says Tenth Circuit

On Tuesday, the Tenth Circuit issued its opinion in Holt v. Grand Lake Mental Health Center, Inc. The plaintiff was a woman with "a mild form of cerebral palsy that adversely affects her speech and her ability to perform certain activities which require fine motor coordination. Holt requires assistance when chopping, peeling, and slicing food. She sometimes has difficulty eating and must chew her food thoroughly or it will become lodged in her throat. She cannot cut her own fingernails or toenails. Holt can dress herself, but sometimes must ask for help when buttoning her clothes." She was demoted and eventually terminated from her job as a mental health clinic administrator, and she alleged that the demotion and termination reflected discrimination. The Tenth Circuit, however, ruled that the plaintiff did not have a disability for purposes of the ADA, because the limitations her condition imposed on her ability to perform manual tasks and care for herself were not "substantial."

A good example of the problems with the ADA's disability definition and the way it's been interpreted.

Goodman and Stapleton on Federal Disability Program Expenditures

New on SSRN: Nanette Goodman & David Stapleton, Federal Program Expenditures for Working-age People with Disabilities: Research Report. The abstract:

Public assistance programs are important sources of support for working-age people with disabilities in the United States. Using a variety of information sources, the authors estimate that the federal government spent $226 billion in 2002 on working-age people with disabilities, including both cash and in-kind benefits. These expenditures account for about 2.2 percent of the nation’s gross domestic product (GDP) and 11.3 percent of all federal outlays. States contributed an additional $50 billion under federal-state programs. The bulk of these expenditures provided income support and health care to working-age people with disabilities who were not employed or had very low earnings. The authors provide a detailed accounting of the expenditures and question whether the distribution of expenditures is properly aligned with the evolving disability paradigm.

Sign Language Becomes Official in New Zealand

See this article by that title. It begins:

New Zealand's parliament has voted to make signing the nation's third official language.

New Zealand Sign Language, different to signing in other countries and used by about 28,000 people, joins English and Maori as a language which can be used in legal proceedings.

The nation joins several European countries and North American states and provinces in giving official status to signing - predominantly used by the deaf and hearing impaired.

Thanks to Ravi Malhotra for the tip.

AP on Continuing Problems in Getting People with Disabilities Into Jobs

Paul Secunda reports here.

Rosenthal on Accommodations in "Regarded As" Cases

New on Westlaw: Lawrence D. Rosenthal, Reasonable Accommodations for Individuals Regarded as Having Disabilities Under the Americans with Disabilities Act? Why "No" Should Not be the Answer, 36 Seton Hall L. Rev. 895 (2006). From the introduction:

This Article will first identify and discuss the arguments courts have relied upon to determine that individuals regarded as disabled are entitled to accommodations. The Article will then discuss the arguments proffered by courts that have reached the opposite conclusion. Next, the Article will analyze the major federal cases addressing this issue. Finally, this Article will suggest that a bright-line rule denying accommodations in these cases is not the correct way to apply the ADA, and that in most cases, individuals regarded as disabled should be entitled to an accommodation.

If, however, courts are unwilling to adopt a bright-line rule requiring accommodations, courts could use a multi-factor test to determine this issue on a case-by-case basis. Regardless of which suggestion courts adopt, an across-the-board refusal to provide accommodations to individuals regarded as disabled is flawed and does not further the purposes of the "landmark" legislation President Bush signed into law sixteen years ago.

Two From Snead on Schiavo

New on SSRN: Two papers from O. Carter Snead on the Theresa Schiavo case. The first is entitled The (Surprising) Truth About Schiavo: A Defeat for the Cause of Autonomy. The abstract:

A survey of the commentary following the conclusion of the Theresa Marie Schiavo matter leaves one with the impression that the case was a victory for the cause of autonomy and the right of self-determination in the end-of-life context. In this essay, I seek to challenge this thesis and demonstrate that, contrary to popular understanding, it is the defenders of autonomy and self-determination who should be most troubled by what transpired in the Schiavo case. In support of this claim, I will first set forth (in cursory fashion) the underlying aim of the defenders of autonomy in this context. Then, I will provide a brief sketch of how the law - both as enacted and interpreted - might ideally serve to promote and defend the goods of autonomy and self-determination. I will thus assess the process and outcome of the Schiavo case by carefully examining the positive law governing the case, as well as the specific evidence relied on by the Florida courts to assess Ms. Schiavo’s actual wishes (the touchstone of autonomy). Moreover, I will contrast the manner in which the Florida courts evaluated this evidence with the seemingly consistent and uniform approach taken by courts from other jurisdictions. I will additionally explore the significance of the Florida courts’ decision to focus the majority of their resources and time on inquiries not oriented towards Ms. Schiavo’s actual wishes, but rather on matters relating to paternalistic considerations, such as her present and future quality of life. In light of the foregoing analysis, I conclude that the Schiavo matter cannot rightly be understood as a victory for self-governance at the end of life. To the contrary, it is instead a cautionary tale of what can happen when the legal preconditions for the exercise of autonomy are absent or ignored.

The second is entitled Dynamic Complementarity: Terri's Law and Separation of Powers Principles in the End-of-Life Context. The abstract:

The bitter dispute over the proper treatment of Theresa Marie Schiavo - a severely brain-damaged woman, unable to communicate and with no living will or advance directive - has garnered enormous attention in the media, both national and international. What began as a heated disagreement between Ms. Schiavo's husband and parents mushroomed into a massive political conflict involving privacy advocates on one side, and right-to-life and disability activists on the other. The battle raged on the editorial pages of the world's newspapers, in the courts, and ultimately, in the legislative and executive branches of the Florida state government. After nearly three years of acrimonious litigation between Michael Schiavo (Ms. Schiavo's husband) and the Schindler family (Ms. Schiavo's parents), a Florida court ordered that nutrition and hydration for Ms. Schiavo be discontinued. Six days after implementation of the court's order, the Florida Legislature passed "Terri's Law," authorizing the Governor, under certain prescribed circumstances, to issue a one-time stay of court-ordered withdrawal of life-sustaining measures, and to appoint a guardian ad litem to review the matter and report back to the executive branch and the chief judge of the relevant Florida court. Pursuant to this new authority, the Governor stayed the order issued by the court, and nutrition and hydration were restored to Ms. Schiavo.

To date, the public debate on this matter has been framed as a conflict between or a balancing of abstract concepts such as "the right to die," "the sanctity of life," and "the rights of the disabled." Little scholarly attention has been paid, however, to an enormously important question at the heart of this matter, namely, what the proper roles of the various branches of government are in a case such as Schiavo's. The proper question is not whether the government has a role in a dispute such as this - it clearly became involved once the matter moved to the state courts - but rather how the government should be involved. Which branch, if any, should have the last word in such a dispute? In these cases, should the relationship between governmental branches be hierarchical or complementary? Which branch of government is best situated to resolve these disputes? This Article, using the Schiavo case as the relevant point of departure, essays to address these questions. Specifically, the questions presented are twofold: (1) Were the Florida Legislature's (and by extension, the Governor's) actions in the Schiavo case consistent with the constitutional principles of separation of powers? (2) If so, did the actions of the executive and legislative branches in this case promote or undermine the purposes and logic of the Florida laws governing end-of-life decisionmaking, taken as a whole? That is, is Terri's Law wise public policy from a structural, governmental view?

Good ADA Title III Standing Opinion

In Young v. Pasha, Inc., 2006 WL 783394 (S.D. Ohio, Mar. 27, 2006), Judge Sargus of the United States District Court for the Northern District of Ohio issued a good standing ruling. The case was an ADA Title III suit. The plaintiff, who uses a wheelchair, found the defendant's hotel inaccessible while on a two-day sweep of hotels in Columbus. The plaintiff sued the defendant, and 12 other hotels he visited during that sweep, for violation of ADA Title III. The defendant moved to dismiss for lack of standing, on the ground that the plaintiff did not really intend to return to the hotel. But Judge Sargus denied the motion. Because the case came before the court on a motion to dismiss, Judge Sargus was required to take as true the following allegations in the complaint:

"Plaintiff, Randy Young, wishes to return to the property to avail himself of the goods and services offered to the public at the property." (Id.; see also id. at ¶ 8 (referring to Plaintiff's "continued desire to visit the Defendant's premises"); id. at ¶ 12 (noting "Plaintiff desires to visit the defendant's property now and in the future not only to avail himself of the goods and services available at the property but to assure himself that this property is in compliance with the ADA so that he and others similarly situated will have full and equal enjoyment of the property, without fear or discrimination.")

Although Judge Sargus expressed "a skepticism that Plaintiff genuinely desires to return to all thirteen hotels in the Columbus area to avail himself of the goods and services those establishments provide," he concluded "that the allegations are sufficient to establish, at this preliminary stage, that Plaintiff has standing to pursue his claims and that this action presents a justiciable case or controversy."

Gastrointestinal Disorders and the ADA

New on Westlaw: Lawrence D. Rosenthal, Can't Stomach the Americans with Disabilities Act? How the Federal Courts Have Gutted Disability Discrimination Legislation in Cases Involving Individuals with Gastrointestinal Disorders and Other Hidden Illnesses, 53 Cath. U. L. Rev. 449 (2004). From the introduction:

One trend that has developed at all levels of the federal court system demonstrates that individuals suffering from gastrointestinal disorders, more specifically ulcerative colitis and Crohn's disease, have been unsuccessful when pursuing claims under the ADA. These individuals face a difficult position in that courts conclude either that they are not "sick enough," and therefore do not have a disability under the ADA, or that these individuals do have a disability, but are "too sick" to perform the essential functions of their jobs with a reasonable accommodation. Perhaps because these diseases are not accompanied by "obvious" symptoms (such as blindness, deafness, or mobility impairments), and perhaps because these employees are not seen as people with disabilities, the sufferers of these "hidden" illnesses face an uphill battle when attempting to pursue a disability-based discrimination claim. Despite the "hidden" nature of these diseases, most of the people who suffer from these illnesses need the protection of a federally legislated remedy such as the ADA.

This Article will first address the nature of these "hidden" gastrointestinal diseases and the various treatment options available to those who suffer from them. The Article will then analyze many cases from the various federal courts in which sufferers of these illnesses have attempted to use the ADA or the Rehabilitation Act to recover for the adverse employment actions they experienced. This section of the Article focuses on the "not sick enough" and "too sick" dilemmas.

After addressing the cases in which the plaintiffs were either "not sick enough" or "too sick," the Article then highlights some of the other problems these plaintiffs have faced when attempting to assert ADA claims--problems which occurred either at the initial stage of the litigation or after the plaintiffs had achieved some success at the lower court. Next, this Article will address some cases in which plaintiffs with these illnesses achieved some success, although for the most part, these successes occurred at the very preliminary stages of litigation. Finally, this Article will suggest some solutions to this problem and will reccommend how plaintiffs with these gastrointestinal illnesses (and other "hidden" illnesses) could obtain some type of legal relief.

This Article demonstrates that despite the initial optimism behind the ADA, many of the people who need the protection of the Act have not been able to access that relief. This Article's purpose is not to argue that every individual with colitis, Crohn's disease, or any other "hidden" illness is entitled to prevail on an ADA claim. However, this Article demonstrates that people with these illnesses face an uphill battle when attempting to apply for relief under the ADA, and that the current interpretation and application of the ADA severely restrict the number of individuals who achieve success under the Act. Unless, and until, either Congress acts to limit the courts' conservative interpretation of the ADA, or the courts change the pro-employer interpretation of the ADA, the "once-closed doors" to which President Bush referred when signing the ADA into law will remain closed and secured with a very strong lock.

Vance on Toyota and EEOC Rulemaking Authority

New on Westlaw: Shawn D. Vance, How the Supreme Court's Toyota Decision Impacted the View of EEOC's Regulatory Authority, 26 Berkeley J. Emp. & Lab. L. 475 (2005). From the introduction:

This Article contains an analytical review of two points of major significance involving employment discrimination claims filed under the Americans with Disabilities Act (ADA). In 1991, the Equal Employment Opportunity Commission (EEOC) issued regulations regarding the ADA, triggering a large debate about their significance. This Article discusses the level of deference that courts should afford these EEOC regulations. In addition, this Article discusses the most recent Supreme Court decision involving the EEOC's regulations regarding the ADA.

While the EEOC was granted authority by Congress to issue regulations to carry out Title I of the Americans with Disabilities Act, the EEOC was never granted authority to issue regulations defining or interpreting the term "disability" as listed in the ADA. Despite this fact, the EEOC has issued disability regulations that interpret the ADA with respect to the meaning of the term disability. This action has caused debate over the scope of the regulatory authority granted to the EEOC. Moreover, the Supreme Court has "muddied the waters" in noting that claims under the ADA should be processed consistently with the analytical approach developed in processing claims of discrimination filed under the Rehabilitation Act of 1973. However, since the EEOC was not authorized to define the term disability, there has been a great deal of speculation as to the appropriate level of deference to afford any EEOC regulation regarding disability discrimination claims.

In order to more clearly ascertain what Congress intended when it granted the EEOC regulatory authority and how that intention affects the level of deference afforded to the EEOC's regulations, Part I of this Article provides a detailed analysis of the legislative history of the ADA and its implementing regulations. Congress, in enacting the ADA, closely followed a practice utilized during the enactment of Title VII of the Civil Rights Act of 1964. This is evidenced by the fact that both pieces of legislation use broad language regarding coverage under their respective provisions. In Part II, the Article discusses the historical and political context in which the ADA was created, thereby providing better insight into how the EEOC regulations evolved and how they should be applied. Part III of this Article briefly addresses certain aspects of administrative law dealing with the various levels of deference afforded to the regulations issued by an executive agency interpreting an Act of Congress. While parties have debated these issues since the passage of the ADA, the debate reached a crescendo in 2002.

On January 8, 2002, the Supreme Court issued its most recent decision on this subject in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams. Part IV of this Article discusses the questions generated by Toyota that continue to confound the legal community and disturb disability advocates. In Toyota, the Court was asked to determine whether a worker at a car manufacturing plant was disabled under the ADA based on certain limitations the employee suffered as a result of a physical impairment. The Court addressed the specific limitations of the employee's major life activities and assessed whether those limitations were substantial. The employee alleged that, among other things, her impairment substantially limited her major life activity of performing manual tasks. The Court concluded that to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. This conclusion is inconsistent with the interpretation contained within the EEOC disability regulations. The EEOC had previously determined that a disabled person under the ADA was one who, among other things, suffered from a physical or mental impairment that substantially limited one or more of his or her major life activities. Therefore, many have formulated opinions regarding the legal significance of EEOC's regulatory authority based upon the Supreme Court's rationale in Toyota.

There is very little information available regarding the deference afforded to executive agencies and how such deference was considered by the Supreme Court in Toyota. Despite the extensive debate that transpires in the legal community on this issue, there has been little scholarly work addressing the arguments raised in the debate. In an effort to assist those who teach or practice in the area of disability discrimination, this Article argues that the EEOC was never granted regulatory authority to issue regulations defining disability, but that the regulations are still very important for the purpose of assisting courts to determine whether a litigant has a disability covered by the ADA. In fact, as discussed in Part IV of this Article, in their current state, the EEOC regulations regarding the definition of a disability should be granted Skidmore deference. In order to understand this conclusion, one must delve into the legislative history of the ADA to identify what Congress intended when it granted the EEOC regulatory authority over Title I of the ADA. A review of the history points out that Congress rejected a detailed draft of the ADA that specifically defined the sorts of impairments to be covered under the ADA. Congress instead passed a version of the ADA that mirrored previously enacted disability law. Congress chose to allow three different executive agencies to issue regulations that would provide the details necessary to implement the will of Congress regarding the ADA. Unbeknownst to most, this political decision has fueled the entire debate over the application of the EEOC's disability regulations to ADA claims. This Article also responds to critics of the Toyota decision regarding whether the decision is limiting the ability of plaintiffs to prove ADA claims. Finally, Part V of this Article provides future recommendations regarding ADA claims that will assist judges, litigants, and scholars.

Colker on Disability Integration Presumption -- Now Published

Ruth Colker's new piece, "The Disability Integration Presumption: Thirty Years Later," about which I blogged here, has now been published at 154 U. Pa. L. Rev. 789 (2006).