Malhotra on Caregiving and Disability

Ravi Malhotra has just published Empowering People with Disabilities in the journal New Politics. The introduction:

WHEN MOST ON THE LEFT THINK about the politics of caregiving, they think about finding a caregiver for their elderly parent or daycare for their preschool child. Or they think about the (frequently romanticized and flawed) feminist debates that interrogate whether there is a feminist ethic of caring and the implications of this for feminist politics. One issue that has largely been ignored is the provision of what has come to be known as attendant care or personal assistance services for primarily, but not exclusively, working age people with physical disabilities. This is rather unfortunate because attendant care services actually raise many complex and unique issues that require a close analysis of the politics of attendant care apart from broader issues in caregiving.

Attendant care or personal assistance services refer to assistance with activities of daily living such as bathing, dressing, and toileting. While the exact model of service delivery varies, attendants are trained and directed by the disabled person, generally referred to as a consumer of attendant care services, to allow the disabled person to live independently in the community. No special medical skills are required. And they are fundamental for many people with disabilities, a historically oppressed group that tends to be on the margins of society with respect to employment status, educational levels and income levels,¹ to achieve full citizenship. This encompasses participation in the labor market or the ability to pursue post-secondary studies, the freedom and opportunity to enjoy recreational opportunities and generally flourish as respected equals.

Moreover, adequate attendant care is crucial in maintaining health and a high quality of life for many people with disabilities. A failure to provide attendant care services would be particularly disastrous for parents with disabilities and may even result in a judicial determination that parents with disabilities ought not to have custody of the child.² Unfortunately, funding for such programs is often very limited and the work force, one that is disproportionately made up of women of color and recent immigrants, is often transient and poorly paid. An alliance between union activists who organize personal assistance services and consumers would dramatically transform the politics and legal regulation of the sector from below and potentially enrich two distinct social movements in a mutually beneficial way. Nevertheless, while highly desirable, such an agenda can only proceed to fruition if both constituencies truly respect the other and overcome a number of barriers that impede greater solidarity.

It's a very interesting piece on a very important topic.

Latest First Circuit Decision in Kiman

Yesterday, the First Circuit issued an opinion in Kiman v. New Hampshire Department of Corrections. The case is an ADA Title II case filed by a former New Hampshire prisoner with ALS. Kiman claims that the state failed to accommodate his disability in various ways while he was incarcerated. The case has been bouncing around the courts for a while now (and I provided some assistance to Kiman's counsel at an earlier stage of the case). The district court first dismissed on sovereign immunity grounds, then a divided panel of the First Circuit reversed and held that the ADA validly abrogated state sovereign immunity, then the court took the case en banc and ultimately split 3-3 (thus affirming the district court's dismissal), then the Supreme Court vacated and remanded in light of Tennessee v. Lane. The First Circuit sent the case back down to the district court, and the district court granted summary judgment to the state on the ground that Kiman had not presented sufficient evidence to raise a triable issue that the state had violated the ADA. In yesterday's opinion, the First Circuit reversed the district court's decision and sent the case back down once again. The court ruled that Kiman had raised triable issues of fact on a number of aspects of his ADA claim. It remanded for consideration of that claim, as well as consideration whether, in light of United States v. Georgia, the ADA does validy abrogate New Hampshire's sovereign immunity in this case.

Bad Eleventh Circuit ADA Title III Decision

Earlier this week, the Eleventh Circuit issued an unpublished opinion in Access for America, Inc. v. Associated Out-Door Clubs, Inc.. The plaintiffs, an organization and an individual with a disability, brought the case under ADA Title III to challenge various barriers to access at the defendant's greyhound race track. In its opinion, the Eleventh Circuit affirmed the district court's dismissal of the plaintiff's case on standing grounds. The Eleventh Circuit concluded that the individual plaintiff "lacked the requisite concrete and specific intent to return to the Track because he could not demonstrate that there was any reasonable chance of his revisiting the Track, other than 'someday,'" and that he therefore lacked standing under Lujan v. Defenders of Wildlife. Because the organizational plaintiff's standing was based on the individual plaintiff's standing, the two fell together.

This is a bad decision, one that, as Judge Barkett pointed out in dissent, went well beyond Lujan. Judge Barkett explained that there was nothing speculative about whether the individual plaintiff would return to the track; the only question was when:

Despite structural barriers allegedly in violation of the ADA, Wilder, who has muscular dystrophy and is confined to a wheelchair, nonetheless professes a desire to revisit Associated’s Tampa Greyhound Track. Wilder’s unrebutted testimony reflected that he traveled to the Track six or eight times per year for the last three years. Because these trips are usually “spontaneous,” “there [was] no set date” for his next visit when this case was before the district court. Even so, his interrogatory answers signaled an intent to visit the track over Christmas vacation, and in March, May, June, and July of 2005. Dis. Ct. DK. 54 interr. answers p. 4. Wilder testified that possible visits were also being contemplated for Father’s Day and Thanksgiving. Dis. Ct. DK. 39, T. 167 ¶¶3-10).

Even if Wilder had not expressed an intention to visit the track on Father’s Day or next Thanksgiving, there can be no question that he gave adequate “specification of when the ‘some day’ will be.” Id. Wilder’s professed intention to return to the Track in certain months and during certain vacations is clearly adequate to confer standing if, as the language above suggests, merely stating when “some day” might be could have conferred standing on the plaintiffs in Lujan.

Whereas the Lujan plaintiffs were one-time visitors to far-flung places, Wilder has visited the Track between 18 and 24 times in the past three years. Given this track record, so to speak, we cannot fathom how or why Wilder has failed to “allege[] facts giving rise to an inference that he will suffer future disability discrimination by the defendant.” Schotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2004). In the absence of a change in circumstance material to the plaintiff’s future attendance at a particular facility, such recent and consistent use of the facility, wholly uncontested by defendants as a factual matter, leaves practically no reason why Wilder should have had to provide a “set date” and “concrete plans” for his return. Wilder’s recent and frequent use of the Track makes his intent to return credible on that basis alone. As the Supreme Court has said, evidence of past wrongs bears strongly on “whether there is a real and immediate threat of repeated injury.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983).

As Judge Barkett went on to argue, the majority's opinion eviscerates the ADA's public accommodations provisions. The whole point of Title III of the ADA is that people with disabilities should have the same choice of retail goods and services providers as do everyone else. And a huge number of the places of public accommodation to which Title III applies are places that people choose to attend spontaneously. (Think gas stations, restaurants, amusement parks, and on down the line.) I can't tell you when I'll go to the coffee shop in my neighborhood next, but I've gone there 20 times in the two years I've lived in my house, and I sure mean to go there again sometime. Does the fact that I can't tell you exactly when mean that I couldn't sue to challenge any barriers to access I found there? That would be an absurd result, but it's what the court's opinion seems to require. Judge Barkett again:

Especially in the disability context, a “specific-date/set-plans” standard would produce patently absurd results, and would almost certainly place plaintiffs in a Catch-22 so far as their credibility is concerned. To have standing under the ADA, is a wheelchair-bound individual who consistently but unpredictably frequents a particular Burger King required to predict the very day on which he will next crave a Whopper?

I don't know how often the Eleventh Circuit takes unpublished opinions en banc (I'd assume almost never), but this case cries out for that treatment.

Supreme Court on the Insanity Defense

Although the most important case decided by the Supreme Court today had nothing in particular to do with disability law, the Court's other case, Clark v. Arizona, involved an important disability-related question. The case involves Arizona's extremely narrow insanity defense. The traditional M'Naghten rule, in effect in many jurisdictions, provides that an individual will be found not guilty by reason of insanity if s/he either didn't know what s/he was doing or didn't know that what s/he was doing was wrong. Arizona uses a truncated version of the M'Naghten test, under which the defendant can be found not guilty by reason of insanity only if s/he didn't know that what s/he was doing was wrong. The first M'Naghten prong -- that the defendant didn't know what s/he was doing -- is irrelevant. Moreover, the state makes that truncated insanity defense the only vehicle for presenting expert evidence of the defendant's mental disease; accordingly, such evidence cannot be used to negate the mens rea element of the offense.

In today's decision, the Court upheld the Arizona scheme by (what was basically) a 6-3 vote against a due process challenge. Justice Souter wrote the opinion for the Court. He relied on the states' broad constitutional latitude to define the insanity defense and on the possibility of juror confusion if mental disease evidence were relevant to mens rea in a way that it could not be relevant to the insanity defense. Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Scalia joined the Court's opinion in full, and Justice Breyer joined the Court's opinion in substantial part. Justice Kennedy dissented, joined by Justices Stevens and Ginsburg.

Watch for Posts Tonight

My day job is keeping me very busy today. (Don't laugh.) So no posts until tonight, when you can read about:

* The Supreme Court's decision on the insanity defense
* The First Circuit's decision on an ADA Title II case brought by a prisoner
* And a bad Eleventh Circuit decision on standing to bring cases under ADA Title III

Big D.C. Circuit Win for Foreign Service Candidate with HIV

I'm too tired to blog more about this right now, but on Tuesday a conservative panel of the D.C. Circuit surprisingly (but, happily) issued a ruling in favor of an individual who had been turned down for a job as a foreign service officer because he had HIV. The officer sued under the Rehabilitation Act, but the district court granted summary judgment. The district court concluded that given the state of medical care in lots of countries, the plaintiff would not be available for worldwide posting. The court also concluded that "worldwide availability" was an essential function of the job of foreign service officer, and that it would not be a reasonable accommodation to permit the plaintiff to use his leave to travel to countries with more developed medical systems for physician's appointments. The D.C. Circuit reversed. The court concluded that there were disputed issues of fact regarding whether worldwide availability is indeed an essential function of the foreign service job and whether the leave accommodation would be unreasonable. Accordingly, the court kept the plaintiff's case alive and remanded for further proceedings. This is a good win for the plaintiff, who was represented by Lambda Legal -- and it's a particularly surprising one given the panel.

Shreveport to Become More Accessible

See this article, which begins:

Shreveport will probably have to spend about $2 million to $4 million over the next three years to make its facilities compliant with the Americans With Disabilities Act, according to a proposal the City Council will consider today.

The Council will vote on a bill that would authorize Mayor Keith Hightower to sign an agreement with the U.S. Department of Justice requiring the city to improve the accessibility of more than 50 buildings and documented areas.

The resolution stems from more than a year of negotiations with representatives of the Department of Justice under their Project Civic Access program.

The suggested improvements -- literally, hundreds of them -- include creating more toilets at the City Jail, adding an accessible drinking fountain at Municipal Auditorium, adding more handicap parking at Independence Stadium and improving access to the coat check counter at the new Convention Hall.

The timetable for improving the deficiencies will range from six months to three years, depending on the size, cost and importance of the project. Should the work not be completed at the end of three years, the Department of Justice could file a lawsuit against the city.

Move to Give More Rights to Disabled

See this article by that title from the Belfast Telegraph. It begins:

The Equality Minister, David Hanson, has announced the introduction of a new statutory duty that will give extra protection to disabled people.

The new duty comes into effect on January 1, 2007, and will require public authorities to consider what they can do to promote positive attitudes towards disabled people and encourage their participation in public life.

Public authorities must produce and submit to the Equality Commission, disability action plans, which must show how they plan to fufill the requirements of the staturory duty.

Mr Hanson said: "There is no doubt that the public sector can make a real difference to the lives of disabled people. By leading the way in ensuring fair treatment for disabled people by improving outcomes from their own services, and by setting the standard for other sectors to match."

This new duty is one of a series introduced by the Disability Discrimination (Northern Ireland) Order 2006.

My Take on Murphy

So, now I've read the Court's decision in Arlington Central School District v. Murphy, and here's my initial take:

This is a bad decision. The bottom line is bad, but it's not unexpected. Expert witnesses are crucial for parents in IDEA cases -- particularly because the school districts have lots of experts on staff. Without the ability to get reimbursed for expert fees, it will be that much harder for parents of kids with disabilities to be able to make successful presentations in due process hearings and judicial review. (Justice Breyer's dissent makes a great argument on that point.) But the Court has pretty consistently held that statutory language requiring the shifting of attorneys' fees does not refer to expert fees unless the statute specifically says so, and this statute doesn't say so. That's why the decision isn't really a surprise. And that's why Justice Ginsburg's concurrence in the judgment shouldn't be such a surprise. I'm sure she'd like to award expert fees, but the case law was pretty clear. (Justice Breyer relied extensively and almost exclusively on legislative history and the broad purposes of the statute. I think we can see that even if Justice Alito isn't a strict textualist, there aren't five votes for Justice Breyer's broad purposivism -- though Justice Ginsburg might have been in his camp if it weren't for the Court's previous jurisprudence on expert fees.)

What makes this decision particularly bad is Justice Alito's opinion for the Court, which relies heavily (and unnecessarily) on the IDEA's status as Spending Clause legislation. Because Congress enacted the IDEA under the Spending Clause, Justice Alito stated, any requirements it imposes on states or localities must be unambiguous in the text of the statute. This is a potentially broad theory that conservative judges and justices have been invoking for some time. If it's read broadly as some lower courts have from time to time done, the theory could significantly limit the reach of a number of civil rights statutes, including Section 504 of the Rehabilitation Act, Title IX of the Education Amendments, and Title VI of the Civil Rights Act, as well as the IDEA. Today's decision doesn't add much to the previous invocations of the Spending Clause clear-statement rule -- though, as Justice Breyer points out, the Court hasn't often applied that rule to rule out of bounds a particular remedy for violating a Spending Clause statute. But it is disturbing that Justice Alito decided to frame his entire opinion around that rule, particularly in a case where (as Justice Ginsburg argued) he didn't have to. A number of decisions of the late Rehnquist Court seemed to be moving away from a stringent reading of the Spending Clause clear-statement rule, so this may be an ominous development.

Breaking: SCt Says no Expert Fees in IDEA Cases

According to SCOTUSBlog, the Court ruled today in the Murphy case that prevailing parents may not recover expert fees in IDEA cases. The ruling was 5-4. This isn't a surprise, but it's a real loss (much more than Schaffer earlier this Term). I'll post more when I've read the opinions.

UPDATE: Just downloaded the opinions. The score was actually 6-3. Justice Alito wrote for the Court, joined by the Chief Justice and Justices Kennedy, Scalia, and Thomas. Justice Ginsburg concurred in the judgment, and Justices Souter and Breyer (the latter joined by Justices Stevens and Souter) dissented.

Washington Post Editorial on DC Mental Retardation Agency

See this piece from Saturday's post. It begins:

NOW WEIGHING a request to place the District's troubled mental retardation agency in court receivership, U.S. District Judge Ellen Segal Huvelle has plenty of credible information in hand to support charges of fatal neglect and abuse in city-contracted group homes for people with mental retardation. Two developments reported last week in The Post drive home the point that the Williams administration's oversight of the city's Mental Retardation and Developmental Disabilities Administration (MRDDA) has left some of the city's most vulnerable residents in great danger.

Eleventh Circuit: No Changes to Atlanta's Fox Theater Would Be Readily Achievable

Yesterday, the Eleventh Circuit issued its opinion in Garthright-Dietrich v. Atlanta Landmarks, Inc.. The case was an ADA Title III challenge to accessibility at Atlanta's historic Fox Theater. (I think all Fox Theaters are historic.) Since the building predates the ADA, the relevant standard is whether barrier removal is readily achievable. The plaintiffs alleged "that certain areas designated for wheelchair patrons are physically inaccessible to them; that the quality of their access is inferior; and that barriers exist in connection with ticket pricing and sales at The Fox." But the Eleventh Circuit held that the plaintiffs had not carried their burden to show that removal of these alleged barriers would be "readily achievable":

In this case, appellants submitted three proposed options relating to wheelchair seating, but they failed to produce any reliable evidence that those proposals were “readily achievable.” Appellants' seating proposals involved the addition of at least 27 wheelchair seating positions, as well as modification of the existing wheelchair locations. Appellants' expert proposed three options: (1) The Fox could provide additional seating in existing level areas; (2) The Fox could remove rows of existing seats and modify the floor slab to create new inset sections on the orchestra level; and (3) The Fox could add raised platforms at various locations throughout the theater. However, these proposals were non-specific, conceptual proposals that did not provide any detailed cost analysis. Appellants did not provide any evidence of the number of seats lost, the number of wheelchair and companion seats gained, where they could be located, what it would cost to implement them, or what effect they could have economically or operationally on the theater. Appellants also failed to provide expert testimony to assure the feasibility of their proposed seating modifications and did not, in any meaningful way, address the engineering and structural concerns associated with their proposals or the effect that those proposals would have on the historic features of the theater.

Additionally, appellants failed to show that their proposed modifications were inexpensive. Not only did appellants fail to produce a financial expert to link the estimated costs of their proposals with The Fox's ability to pay for them, they failed to take even the rudimentary steps of formulating what those estimated costs might be or providing any evidence of The Fox's financial position and ability to pay those costs. The only “evidence” presented by the appellants of the costs associated with their proposed modifications consists of testimony by an ADA expert who summarily opined that some of the proposed modifications would be “low-cost” or “inexpensive,” while others would be “more expensive,” and that some modifications would cost similarly to previous modifications. Accordingly, we conclude that the district court did not err in finding that the appellants could not meet their burden of production for barrier removal.

Assuming arguendo that the evidence proffered by appellants did satisfy their burden of production for barrier removal, we conclude that the district court's grant of summary judgment would still be appropriate because The Fox rebutted any showing by establishing that removal of the alleged barriers could not be accomplished without much difficulty or expense. The Fox presented undisputed evidence that lowering a portion of the floor, as appellants proposed, would directly affect the historic nature of the theater; the actual seating configuration in the theater is a character-defining feature of The Fox, and the permanent removal of seats would require the approval of the State Historic Preservation Officer; the floor that would be affected by appellants' proposals is historically significant; the implementation of certain of appellants' proposals would involve closing the theater for a period of time; the appellants' proposals would result in the elimination of seats belonging to season ticket holders; and a decrease in the number of regular theater seats would directly impact The Fox's ability to compete with other venues, possibly resulting in lost revenue. Therefore, The Fox satisfied its burden of persuasion, proving that barrier removal was not “readily achievable.”

A couple of things about this case. First, if the court's opinion is to be believed, the plaintiffs' expert testified in a very general way about the proposed accommodations and their costs. The plaintiffs argued that they shouldn't have to provide anything more specific, because they were not in a position to know how precisely to remove barriers in the defendant's building, but the court unsurprisingly ruled that that's what experts and discovery are for. Plaintiffs' counsel in these kinds of cases would be well advised to present expert testimony that is as specific as possible on these issues.

Second, the court emphasized all of the things the Fox had already done to make its premises accessible:

Prior to the passage of the ADA, The Fox installed removable theater seats to accommodate individuals in wheelchairs and created wheelchair-accessible restrooms. From the mid-1980's and throughout the 1990's, The Fox continued its efforts to make the theater more disabled-accessible, including (1) the installation of an elevator to give disabled patrons access to the theater's ballrooms; (2) the installation of a wheelchair-accessible box office; (3) the installation of a wheelchair-accessible telephone; (4) the addition of four new wheelchair-accessible restrooms; (5) the addition of a wheelchair-accessible concession area on the mezzanine level of the theater; and (6) the installation of a ramp to give performers, patrons, and visitors in wheelchairs access to the stage.

In 1996, The Fox implemented its “Ambassador Program” through which it trains a select group of volunteer ushers in how best to accommodate and assist The Fox's disabled patrons. As a result of these efforts, The Fox's current amenities and policies include between 19 and 25 wheelchair-accessible seating positions with companion seats located throughout the orchestra level; nine aisle seats with removable armrests at various locations on the orchestra level; a ticket-pricing policy that includes the option of paying the lowest ticket price for every show if you are a disabled patron; seven wheelchair-accessible restrooms; wheelchair-accessible concession areas; wheelchair-accessible drinking fountains; a wheelchair ramp to enable patrons who use wheelchairs to utilize the south exit of the theater; and many more “disabled-friendly” policies.

As Lennard Davis showed in his great book, courts are strongly inclined to rule for defendants who they feel have already "bent over backwards" for people with disabilities, and are inclined to think of additional requests for accommodations as so much whining. Maybe we're seeing a bit of that here.

Careful ADA Title III Opinion in E.D. Cal.

In Chapman v. Pier 1 Imports, 2006 WL 1686511 (E.D. Cal., June 19, 2006), Judge Karlton issued a very careful opinion granting in part and denying in part the parties' cross-motions for summary judgment. The case was a garden-variety Title III accessibility case, in which the plaintiff alleged that the defendant's store was, in various ways, not "readily accessible" to people with disabilities. Judge Karlton held that the plaintiff could challenge not just those barriers to access that were known at the time of the complaint, but also barriers first identified in discovery (so long as they would be barriers to him). The court then went through each of the challenged barriers and granted summary judgment to plaintiff on some, to the defendant on others, and to neither party on still others. Some of the plaintiff's claims might have seemed trivial to other judges, but Judge Karlton took them and the law seriously and even granted summary judgment to the plaintiff on some of them. This is really a model of how courts should address Title III cases.

New Book on Race and Disability in Education

Ravi Malhotra just sent along a plug for a new book by Beth A. Ferri and David J. Connor entitled Reading Resistance: Discourses of Exclusion in Desegregation And Inclusion Debates. Here's the publisher's book description:

Reading Resistance confronts longstanding exclusionary practices in U.S. public schooling. Beth A. Ferri and David J. Connor trace the interconnected histories of race and disability in the public imagination through their nuanced analysis of editorial pages and other public discourses, including political cartoons and eugenics posters. By uncovering how the concept of disability was used to resegregate students of color after the historic Brown decision, the authors argue that special education has played a role in undermining school desegregation. In its critical, interdisciplinary focus on the interlocking politics of race and disability, Reading Resistance offers important contributions to educational research, theory, and policy.

Ravi suggests we all take a look!

Apologies to Bloglet Users

Because of the continual glitches with &^%$@%*! Blogger, the Bloglet subscriptions haven't been running for a few days. The problem should be corrected now, though. Thanks for your patience.

GW Counseling Update

A few months back, I posted about the George Washington University's policy regarding students who seek help from university counselors because they are thinking of committing suicide. Here's an article in Inside Higher Ed that offers an update. It begins:

Officials at George Washington University confirmed Wednesday that the institution has abandoned a controversial plan that would have required students seeking help at the University Counseling Center to sign a waiver in order to receive treatment. The waiver, which had been mulled for months by administrators, lawyers and counseling center officials, would have allowed information discussed during sessions with students to be shared with administrators.

“At the moment we have no plans to make changes to the waiver system currently in use,” said Tracy Schario, a spokeswoman for the university. “Pros and cons were weighed, and officials ultimately determined that the process isn’t broken.”

Currently, when students seek treatment, they are asked to fill out paperwork that conforms to widely accepted ethical and legal standards, including a consent for treatment form. As is customary at college counseling centers nationwide, students are assured of confidentiality unless they reveal information that suggests that they may harm themselves or others.

Since the plan first came to light in December, mountains of criticism have been heaped on the institution. Many mental health professionals and legal experts said that the waiver would stigmatize students who seek care, discouraging many of them from seeking help, and might conflict with confidentiality guidelines traditionally associated with psychological and psychiatric treatment.

“It was a wise move to dump it,” Richard Kadison, the chief of mental health services at Harvard University, said upon learning about the tabled plan. “It’s not really informed consent to have a generic form.” If Harvard administrators were to ask him to help adopt such a policy, he said he wouldn’t agree to it and does not believe it would be legal or ethical.

Kadison said that many administrators have felt “pressured” to enact policies that would protect their liability in the event that a student with a mental disorder were to harm himself or others.

Schario acknowledged that the ongoing Jordan Nott case against the university did play a role in the consideration of the proposal. The former GW student claims he was forced to leave the institution and threatened with criminal prosecution after he sought help for depression at the university’s counseling center. The university’s lawyers have defended the removal and suggested that Nott’s conduct could have barred his recovery if he remained at GW.

Symeonides on Spector

New on SSRN: Symeon Symeonides, Cruising in American Waters: Spector, Maritime Conflicts, and Choice of Law (Journal of Maritime Law and Commerce, forthcoming 2006). The abstract:

This Article discusses the extent to which the Americans with Disabilities Act (ADA) and similar statutes apply to foreign-flag ships that carry passengers to and from United States ports and have other U.S. contacts, at least while the ships are within U.S. waters.

The answer to this question - which a divided Supreme Court answered equivocally in Spector v. Norwegian Cruise Line Ltd., 125 S.Ct. 2169 (2005) - depends in part on whether the statute's application implicates the ship's internal affairs and on the presence of a clear statement evidencing congressional intent regarding such application.

This Article contends that:

(1) Cases like Spector should not be subject to the clear statement canon because: (a) they do not really involve the ship's internal affairs properly defined; and (b) they do implicate significant U.S. interests, a factor that normally triggers an established exception to the internal affairs doctrine;

(2) If cases like Spector are subject to the clear statement canon, the canon should be downgraded to a presumption of non-applicability, which can be rebutted by showing either actual or constructive congressional intent to that end;

(3) Under this test, one could reasonably infer that Congress intended the ADA to apply to foreign ships like the one involved in Spector because the application of the ADA: (a) would serve the purpose for which Congress enacted it; and (b) would not unduly interfere with the ship's internal affairs properly defined; and

(4) Spector does not materially differ from cases involving the applicability of the Jones Act or general maritime law to disputes with foreign elements. Under the choice-of-law approach followed in those cases, Spector would easily fall within the reach of U.S. law. The dichotomy between these two categories of cases is no longer necessary or defensible. A new, unified choice-of-law approach for both categories would be highly preferable. This Article outlines such an approach.

Most UK Websites are Illegal Under Disability Rules

See this article by that title. It begins:

UK Disability Discrimination legislation includes specific accessibility requirements for website owners which are rarely followed currently. However, with surveys showing that up to 80% of UK sites are in breach of the requirements and threats of prosecutions, how long can small businesses continue to ignore the law?

Berkshire Internet Consultant, Graeme Rhodes, explains why a legal website is good for business and how the cost of compliance can be minimised.

It’s one of the best kept secrets on the web, but following the final implementation of the Disability Discrimination Act (DDA) in 2004 UK website owners have been legally obliged to provide universal access to the services that may be accessed via their sites. This means that your business’ website must be user-friendly to everyone, regardless of any visual or hearing impairment or any other disability that could affect their use of the site.

The scale of the impact of this legislation has been illustrated in research undertaken by the Disability Rights Commission (DRC) which found that 80% of sites sampled were in breach of the law with many being virtually impossible for disabled people to use. In fact, the code of practice governing the specific section of the DDA relating to accessible websites was actually published in 2002, so many of these site owners could have been breaking the law for up to four years.

Settlement of San Bernardino Juvenile Mental Health Case

See this article, which begins:

San Bernardino County juvenile offenders with learning, behavioral and emotional disabilities will now receive treatment in custody and after their release, according to a settlement approved Monday in federal court.

The class-action lawsuit, brought on behalf of six juveniles in county custody with mental health difficulties, alleged violations of state and federal disability rights laws.

The unique agreement will provide mental health screening for juveniles taken into custody and require officials to arrange for counseling, educational support, medication and other services from a team of doctors, nurses and county mental health specialists.

The settlement also requires monitoring and tracking of officers' use of force against juveniles with special needs.

The arrangement "really transforms the probation-detention system from punitive to therapeutic," said Paula Pearlman, deputy director of advocacy projects for the Disability Rights Legal Center in Los Angeles, which represented the juveniles. Although the county denied wrongdoing, the plaintiffs — six minors with disabilities left mostly untreated by the county — will also receive a combined $50,000 as part of the settlement, Pearlman said.

There are roughly 600 juveniles in San Bernardino County's three detention facilities, in Rancho Cucamonga, San Bernardino and Apple Valley.

Discrimination Against Prospective Immigrants with Disabilities in New Zealand

See this article, which begins:

The Disabled People's Assembly says discrimminating against potential immigrants because of a disability is disturbing and wrong.

It follows comments from the Human Rights Commission that proposed changes to tighten up the Immigration Act could breach international human rights' treaties.

President of the DPA, Mike Gourley, says immigrants should not be excluded because of their health.

He says it is not fair to think of people with disabilities as a cost or a burden on the state.

I had a student this spring who did a great piece on disability discrimination in US immigration law.

Nebraska Supreme Court: ADA Can't Abrogate Sovereign Immunity in Parking Placard Cases

Yesterday, the Nebraska Supreme Court issued its opinion in Keef v. State of Nebraska, Department of Motor Vehicles. The case, yet another in a long line of ADA Title II cases challenging a state's decision to charge a fee (here $3) for a handicapped parking placard. The court held that Title II does not validly abrogate state sovereign immunity as applied to such a case. Distinguishing Tennessee v. Lane and United States v. Georgia, the court concluded that the imposition of a $3 fee implicates no fundamental right and does not violate the Constitution.

Smith on Mental Illness and the ADA

Via Workplaceprof Blog, I came across this new abstract on SSRN: Deirdre M. Smith, The Paradox of Personality: Mental Illness, Employment Discrimination, and the Americans with Disabilities Act (forthcoming 2006 in the George Mason U. Civil Rights Journal). The abstract:

Both medicine and the law devote considerable concern to drawing lines, that is, to classifying and making distinctions. In medicine, such line-drawing occurs when a person is designated healthy or ill, normal or disordered. In the law, such line-drawing determines who does and does not bear legal responsibility for a given situation. This Article reviews the demarcation drawn by psychiatry and the courts between “disfavored personality” and “mental illness,” a dichotomy not based upon empirical science and therefore, wholly susceptible to social construction and implementation. While society may pathologize noxious personalities, thus making them “disabilities,” it is loath to extend disability-based legal protections to people with such personalities. Specifically, the application of the Americans with Disabilities Act (“the ADA”) to persons with “impaired” personalities is regarded by some as improperly removing or excusing their responsibility for their own behavior, while improperly assigning responsibility to the people who must interact with them, notably employers. Thus the invocation of “personality” in disability discrimination claims implicates a collision between societal and psychiatric attitudes towards certain psychological conditions and the law. In the case law developed under the ADA, courts have erred on the side of a restrictive view of the meaning of “mental illness” by employing approaches that ensure that “personality issues” are eliminated from ADA analyses. This trend has swept so broadly, the Article argues, as to render the ADA a limited tool both for remedying past discrimination and for compelling society to examine the place of people of with mental illness in the workplace.

New AALS Disability Section

I pass along, with real excitement and thanks to Ann Hubbard for making this all happen, the following announcement:

NEW DISABILITY LAW SECTION APPROVED BY AALS EXECUTIVE COMMITTEE

At its May meeting, the AALS Executive Committee approved the petition

for provisional status for a new AALS Section on Disability Issues. Many

individuals played a role in making this happen, but particular thanks are due to Professor Ann Hubbard of the University of Cincinnati Law School, who organized and administered the petition drive for the new section. Our thanks go to everyone who signed the petition and who participated in any way in helping with the development and approval of the new section.

We are pleased to announce that the inaugural chairs of the new Disability Section are Laura Rothstein (Kentucky) and Arlene Kanter (Syracuse). The other officers are: Co-Chairs-elect, Sam Bagenstos (Wash. U.) and Ann Hubbard; Secretary, Wendy Parmet (Northeastern); Program Co-chairs, Michael Waterstone (Loyola) and Camille Nelson (St. Louis); Mentoring coordinator, Michael Stein, (W&M/Harvard); Newsletter Editors, Jennifer Gundluch (Suffolk) and Arlene Kanter; and Scholarship Coordinator, Alice Baker (Mercer). Members of the Executive Committee include: Wendy Hensel( Georgia State); Ani Satz (Emory); Kelly Timmons (Georgia State) and Michael Waterstone.

Two officer positions remain unfilled. Please contact Laura Rothstein at laura.rothstein@louisville.edu if you are interested in working as the Membership Coordinator or the Web Master. The Web position is particularly important as we begin to develop our new Section's web page, blog and/or to track conversations on the listserv that may be the subject of longer substantive articles in our newsletter or advocacy projects.

The new Disability Law Section will host its first program at the January 2007 AALS meting in Washington, D.C. The session is co-sponsored by the Sections on Mental Disability Law and Criminal Law. The title of the session is "Access to Justice for People with Disabilities." Speakers include Professor Martha Minow (Harvard), Jennifer Bard (Texas Tech), Sam Bagenstos (Wash U), Michael Schwartz (Syracuse), and Eve Hill (Western Law Center on Disability Law).

Burris on the ADA and Psychiatric Disabilities

New on SSRN: Scott Burris, Justice Disparities: Does the ADA Enforcement System Treat People with Psychiatric Disabilities Fairly? (Maryland Law Review, forthcoming 2006). The abstract:

1990 Americans with Disabilities Act (ADA) was expected to decrease discrimination against people with disabilities. However, discrimination against people with psychiatric disabilities may exist in the legal system that is charged with implementing the ADA. This study describes and compares the characteristics of people with psychiatric and nonpsychiatric disabilities who filed employment discrimination lawsuits under Title I of the Americans with Disabilities Act (ADA) from 1993 to 2001. The paper examines actual and perceived outcomes of these lawsuits, features of the surrounding legal process, effects of psychiatric disability status on receiving a benefit from litigation, and the predictors of overall satisfaction with the experience of bringing an ADA Title 1 claim.

A national stratified quasi-random sample of N=537 persons filing ADA employment discrimination lawsuits in federal court was interviewed by telephone. Subsamples of n=148 persons with psychiatric disabilities and n=222 persons with nonpsychiatric disabilities were compared. The primary outcome was receiving a benefit from filing an ADA Title I lawsuit, defined as a court ruling in favor of the plaintiff or a settlement between the parties, with the plaintiff's confirmation of having received some benefit. The secondary outcome was the degree of overall satisfaction with the experience of bringing a claim of employment discrimination from the initial charging process through litigation.

The study finds that people with psychiatric disability fared significantly worse in employment discrimination lawsuits than their counterparts with nonpsychiatric disabilities, controlling for other significant predictors of litigation outcome including health status, plaintiff's education, reasons for the lawsuit, and assistance by a lawyer. Plaintiffs with psychiatric disabilities were also significantly less satisfied with the overall process of filing a claim of employment discrimination and bringing a lawsuit under the ADA. The effects of poor outcome on dissatisfaction were mediated by perceived unfairness, lack of voice, and lack of procedural justice in the charge process and litigation.

These disparities are not easily explained by differences in the law, the behavior of employers or lawyers, or the effects of psychiatric illness on perception. Even accounting for the influence of outcome, people with psychiatric disabilities experienced less procedural justice than others. While the disparities are clear, the causes are not. There is no reason to suspect that actors in the legal system - personnel in state agencies, judges, court clerks, lawyers for the defendants, and even lawyers for the plaintiffs - are immune from the stigma of mental illness, but also no reason to jump to the conclusion that the system is rife with "sanism". What should not be doubted is the need for a vigorous response to these findings that ensures that the system that is intended to protect people from discrimination does not discriminate.

Seto and Buhai on Tax and Disability

New on Westlaw: Theodore P. Seto & Sande L. Buhai, Tax and Disability, 154 U. Pa. L. Rev. 1053 (2006). The abstract:

Although people with disabilities make up some 20% of the American population, scholars have largely ignored U.S. tax provisions of particular relevance to them. This Article undertakes the first such systematic study. In the process, it reexamines disability theory, tax theory, and the mechanical structure of the individual income tax system. Disability theory has changed dramatically over the past century, to the point that many tax rules important to people with disabilities are no longer justified by modern disability theory. Standard tax theory turns out to be inadequate to deal with the problems of people with disabilities because, consistent with its utilitarian origins, standard tax policy analysis generally assumes that taxpayers are identical except with respect to income; as a result, it lacks the capacity to deal with other individual differences in ability to pay. The failure of tax theory to deal adequately with ability to pay, in turn, has placed serious strains on the mechanical structure of the individual income tax system as a whole, which has become increasingly incoherent. This Article analyzes existing tax provisions of particular relevance to people with disabilities using an ability-to-pay approach to individual income taxation and a human variation paradigm of disability rights, justifying or reframing some provisions and recommending repeal of others. Ultimately, the Article suggests, if the individual income tax system as a whole were to be reframed in terms of individual taxpayers' ability to pay, the mechanical complexity of that system could be rationalized and significantly reduced.

Kress on Coerced Treatment

New on SSRN: Kenneth J. Kress, Must the Criteria for Initiating Coerced Treatment or Commitment be the Same as the Criteria for Ending Coerced Treatment or Commitment? (forthcoming in Behavioral Sciences and Law). The abstract:

That coerced treatment must end when the criteria for initiating coerced treatment cease to apply appears to be universally accepted by courts and commentators. Moreover, the consensus appears to be justified by a steel-trap argument. If coercion is justified only when the patient is mentally ill and incapable, because then the patient lacks autonomous capacities or practical reasoning ability, then those justifications have no force when the patient either is not mentally ill or is capable. A parallel claim holds for civil commitment. If coercion is justified only when the patient is mentally ill, and either incapable or dangerous (or both), because then the patient lacks important properties of moral agency, such as autonomous capacities or practical reasoning ability, or must be restricted to protect the public or himself, then those justifications have no force when the patient is not mentally ill, or either capable or not dangerous. This is not surprising as commitment is one form of coerced treatment. Commitment isolates the patient from society, enhances opportunities for observation and confines the patient in the serene and less stimulating environment of the hospital as a drug-free treatment that reduces risk of harm, and marginally treats the illness.

Because this claim is universally accepted, I shall call it the received wisdom. Despite this powerful consensus, I believe that the received wisdom rests upon a conceptual confusion.

I argue against the received wisdom as a normative, justificatory claim. I then defend the claim that the standard for release can and should be more difficult to meet in certain actual or possible circumstances by refuting the steel-trap argument and its variations. Responding to an objection, I describe an array of positive arguments supporting the claim that the criteria for release should be harder to meet than the trigger for initiating commitment or coerced treatment.

I know this will be popular with some of my readers.

More Shepherd on Schiavo

I previously blogged about a paper that Lois Shepherd has on SSRN about the Schiavo case. Well, she has more. Here is State Legislative Proposals Following Schiavo: What Are They Thinking? The abstract:

This symposium paper for the Temple Political and Civil Rights Law Review describes and evaluates state legislative proposals following the controversy surrounding the removal of Terri Schiavo's feeding tube. Proposals to alter end-of-life decision-making standards have been introduced in at least twelve state legislatures. They appear designed to address the following perceived problems with the law that was applied in Ms. Schiavo's case: (1) concern that the evidence regarding Ms. Schiavo's wish to refuse treatment was weak or insufficient; (2) concern that despite family disagreement over the proper course of action, life-sustaining treatment was withdrawn; (3) frustration over the limited role for government officials in challenging the court decisions to allow the feeding tube to be removed; and (4) concern that the removal of feeding tubes causes individuals to starve to death. The proposals either require stronger evidence (such as a writing) of a patient's wish to refuse artificial nutrition and hydration than is required by existing law or prohibit the removal of artificial nutrition and hydration when family members disagree. Many of the proposals provide for an enhanced role of government officials in challenging the removal of life-sustaining treatment.

In the main, supporters of these proposals have justified them as providing patients needed protection from surrogate decisions that do not accurately reflect patient choice. They are hailed in large part as protecting, rather than limiting, patient choice. This paper argues that they would in fact accomplish the latter, that a stronger presumption in favor of life is purchased at the expense of patient liberty. Moreover, there is good reason to believe that supporters of these changes to end-of-life law have a different agenda in mind altogether - to change the culture surrounding end-of-life decision-making so that, while the law may still allow people to direct that treatment be refused, more people will choose treatment, and thus life, than do now. Thus, the National Right to Life Committee's draft model act (introduced as legislation in a number of states) must be considered together with its Will to Live document, a living will-type document designed for individuals to express their wishes in favor of continued life support, particularly nutrition and hydration. The calls for legislative change together with the drive to encourage people to execute the Will to Live are evidence of what the author terms a larger movement against starvation, in which patient choice, patient interests, and the interests of families are severely subordinated to the preservation of life.

NY Appellate Division: Lawyer with Record of Psychiatric Disability Properly Denied "Secure Pass"

In an opinion issued late last week, the First Department of the New York Supreme Court, Appellate Division issued an opinion in Munsiff v. Office of Court Administration. The administrators of the New York courts had denied Munsiff, an attorney, a "Secure Pass" that would allow him to enter courthouses without passing through the magnetometers. As the court explained the administrative scheme for granting Secure Passes, a lawyer is entitled to such a pass unless he or she has previously engaged in criminal activity that involves "violence or dishonesty." If a lawyer has engaged in such activity in the past, he or she "is deemed a security risk to the courthouse and the application is denied."

Munsiff applied for a Secure Pass, but his background check revealed that, 10 years back, he had committed a number of crimes involving violence and/or dishonesty. Munsiff explained that those crimes had been committed as a direct result of a then-undiagnosed psychiatric disability (paranoid schizophrenia), which has now been treated and in remission, with no symptoms, for a number of years. His doctors testified that he no longer presented any threat. Based on that testimony, Munsiff was admitted to the bar. The court administrator, however, refused to issue Munsiff a Secure Pass. Munsiff challenged that refusal in the New York Supreme Court, which ruled that the refusal violated Title II of the ADA.

The Appellate Division reversed and ruled that Munsiff was not entitled to a Secure Pass. The court noted that the ADA protects only "qualified individuals with a disability" -- i.e., individuals with disabilities who "meet the essential eligibility requirements" of the relevant state program or activity. And the court noted that one reason a person might fail to meet the essential eligibility requirements is by posing "a direct threat to the health and safety of others."

So far, so good. But then the court held that simply because of his 10-year-old history of criminal violations, Munsiff ipso facto posed a direct threat to the health and safety of others. The court reasoned:

Inasmuch as OCA has reasonably determined that since an applicant with a criminal history of violence and dishonesty is, by virtue of that single circumstance, deemed a security risk, the absence of such history is the sine qua non for the issuance of a Secure Pass. It is not for the courts to decide otherwise. With his lengthy criminal history of such offenses - albeit in the past - petitioner cannot satisfy this requirement. OCA is not required to compromise its essential eligibility criteria for the Secure Pass program (see Tennessee v Lane, 541 US 509, 531-532 [2004]).

Nor, in any event, contrary to Supreme Court's determination, can petitioner show that he "will not in the future" pose a threat to courthouse security. While his paranoid schizophrenia is in remission, with an excellent long-term prognosis as long as he remains compliant with his medication and therapy regimen, he still has the condition - undisputedly a chronic one - and there is always a possibility that his symptoms will recur. In that regard, no individualized assessment of a person's psychiatric condition can determine whether the person will stay on medication and continue treatment or, indeed, whether the medication regimen will continue its effectiveness. The psychiatric opinions relied upon by petitioner and, in turn, Supreme Court are based on the assumption that petitioner will stay on his medication and continue his treatment. Since petitioner is not under constant care and confinement, the risk that he will not continue taking his medication or continue in his treatment is, in the context of courthouse security, unacceptable and unreasonable.

Moreover, a court's exclusive reliance on these optimistic psychiatric assessments in reaching its judgment constitutes an abdication of judicial responsibility (see Matter of John A. v Bridget M., 16 AD3d 324, 332 [2005], lv denied 5 NY3d 710 [2005]). It would certainly be irresponsible for OCA to base its determination on such assessments. Nor should we require [*5]OCA to provide for continuing oversight by requiring ongoing assurances from a neutral psychiatrist that the Secure Pass holder is adhering to his regimen in taking medications, keeping medical appointments and not presenting an appreciable risk of recurrence of the disability in remission. This is too formidable a burden to be a realistic counterbalance to the risk involved.

Maybe the state should have accommodated Munsiff, maybe not. I don't know all of the relevant facts. But I can say that this opinion flies in the face of both the ADA's "direct threat" requirement and the statute's general requirement of "reasonable accommodation." Munsiff's claim was that the state's criteria for identifying a threat were discriminatory and swept in people like him who were not in fact a threat. As a matter of simple logic, one can't answer that claim by simply noting that according to the state's criteria he was a threat.

Apologies

I'm sorry for the absence of posts over the past week or so. I've been swamped in my day job, and it hasn't helped that Blogger has been *&@#!@-ed up so much. But lots more content to come this week (though I'll also be travelling a bit to speak here and here).