Troubling University of Houston Case

See this article from Inside Higher Ed. An excerpt:

But a lawsuit filed Thursday against the University of Houston involves a student with an undisputed disability who says he was turned down by a professor, without explanation, for his requests for accommodations. Not only is the suit challenging the treatment of the student, but the litigation is demanding that the university abandon a policy in which professors have wide leeway to decide whether to comply with requests from students with disabilities.

“This policy allows professors complete discretion, and that’s illegal,” said Ernest Saadiq Morris, a lawyer for the Texas Civil Rights Project who is handling the case. It’s as if, Morris said, a public university announced that it was going to let individual professors decide whether to follow laws that bar discrimination on the basis of race or gender.

“They are trying to delegate the undelegatable,” said Morris. “This case shows a resistance at some universities to viewing discrimination against people with disabilities as what we have accepted as unfair or illegal practice.”

Officials from the university said that they could not comment directly on litigation, but confirmed that the policies cited in the lawsuit remain in effect. Donna G. Hamilton, general counsel for the university, said: “The welfare of our students is a primary concern at the University of Houston. We take such complaints very seriously and we are committed to resolving any problems that we may find.”

The plaintiff in the case is Gary Bradford, who was starting his senior year at Houston in the fall of 2005, when the disputed actions took place. As a result of a genetic impairment, Bradford was born without arms and his hands are attached at his shoulders. He also has rickets, seizures and immune deficiencies and uses a wheelchair for mobility. When he enrolled at Houston, he registered with the university’s Center for Students With Disabilities, which both verified his disability and approved a set of recommendations to help him succeed academically. Those recommendations included obtaining notes from classmates and instructors.

With professors generally cooperating, Bradford was proceeding until he enrolled in a required social sciences writing course last fall. According to the lawsuit, the instructor and teaching assistants turned down — without explanation — Bradford’s requests for accommodations such as providing him with notes of class lectures and discussions and copies of slides used in class sessions. What is striking, according to Bradford’s lawyer, is that the instructors apparently had the right under the university’s policy to do so (even if that is against the law).

Student Note on HIV-Positive Public Safety Workers

New on Westlaw: Manju Gupta, Note, Occupational Risk: The Outrageous Reaction to HIV Positive Public Safety and Health Care Employees in the Workplace, 19 J.L. & Health 39 (2004-2005). From the introduction:

Society, including the legal profession, fears the risk of transmission of HIV in an occupational setting. This is particularly true for those in the health care and public safety settings (fire fighters, police, and healthcare practitioners). This note will assert that the law should afford HIV infected public safety and healthcare employees the right to continue in their occupations. According to current medical evidence, when public safety and healthcare employees use universal precautions the risk of transmission to a person(s) assisted is insignificant.

At the beginning of the epidemic, the medical profession had yet to conduct research, and the risks of HIV/AIDS were largely unknown. Under those circumstances, it is understandable that the courts may have been overly cautious when confronted with cases involving HIV/AIDS. However, twenty years after the epidemic surfaced, the medical evidence should calm irrational fears that have plagued society. The misguided fear arises because the job duties of public safety and healthcare personnel may include direct contact with bodily fluids.

Currently, the great majority of courts have ruled that HIV infected employees should not continue in these occupations. Viewed in the light of available medical evidence and statistical data, these rulings represent an overreaction caused by fear surrounding the epidemic. These courts have not measured actual risk against the statutory standards required by the Rehabilitation Act of 1973 and the Americans with Disability Act (ADA). In these cases, the courts have held that when there is any conceivable risk, no matter how theoretical, the employee must discontinue his present work. Only a few courts have carefully assessed the medical evidence and followed statutory guidelines, which permit employees to continue in their occupations because the risk that HIV public safety and healthcare employees pose to the public is infinitesimal.

This note will critically analyze decisions that do not support public safety and health care employees continuing in their professions. The note opens first with an examination of the history of AIDS and recent treatment of the disease. The second and third sections discuss the statutes and two leading case decisions that involve the treatment of AIDS. The fourth section will analyze the cases that do not support employment of HIV persons in the public safety and healthcare fields. The fifth section discusses cases that favorably treat HIV persons allowing them to continue in their positions in the public safety and healthcare fields. Finally, in the sixth section the note will conclude with what one may draw from the present medical evidence and statistics and how the present treatment of HIV is similar to the past treatment of persons thought to present a threat of communism.

A very interesting issue, about which I've done some writing myself.

Butler-Arkow on Fee Shifting Under the New IDEA

New on Westlaw: Jessica Butler-Arkow, The Individuals with Disabilities Education Improvement Act of 2004: Shifting School Districts' Attorneys' Fees to Parents of Children with Disabilities and Counsel, 42 Willamette L. Rev. 527 (2006). The introduction:

For over 30 years, the Individuals with Disabilities Education Act (IDEA) and its predecessors have ensured that children with disabilities receive a free appropriate public education. Today, 6.5 million children are covered by the Act. In response to the historic segregation and wholly inadequate education of children with disabilities, the IDEA gives children a variety of substantive and procedural protections. When parents have cause to believe the IDEA has been violated, they may file an administrative complaint, followed by an IDEA enforcement action in federal court. Parents who prevail generally recover their reasonable attorneys' fees. Such fee-shifting provisions, common in civil rights cases, ensure that parents and other plaintiffs are able to obtain legal representation. The IDEA was amended in December 2004, to allow prevailing school districts to seek their attorneys' fees from parents and their counsel under very limited circumstances. Specifically, the parents' case must be "frivolous, unreasonable, or without foundation" or the parents must have acted with an "improper purpose" in filing it. These amendments went into effect on July 1, 2005 as part of the Individuals with Disabilities Education Improvement Act. Care must be taken in applying these new amendments to avoid chilling IDEA enforcement actions filed on behalf of children with disabilities seeking an adequate education.

The purpose of this article is to review and analyze the new fee-shifting amendments. Part I of this article begins with the history of the IDEA and a summary of its major provisions. Part II summarizes the law applicable to prevailing parents' requests for attorneys' fees in IDEA enforcement actions. Part III discusses the new fee-shifting amendments in detail. First, it describes the general rules applied to a school district's fee request. Second, it analyzes the ability of school districts to recover their fees if the parents' case is frivolous or the parents continue to litigate after the case clearly became frivolous. Third, the article discusses fee-shifting if the parents file a case with an improper purpose. Finally, the article addresses some additional issues raised by these new amendments, including situations involving interrelated claims where only some are frivolous or filed for an improper purpose.

Second Circuit on IDEA Private-School Reimbursement

Late last week, the Second Circuit issued an important decision in Frank G. v. Board of Education of Hyde Park. The plaintiffs were the parents of a child who, while in fourth grade in a private elementary school, was diagnosed with learning disabilities. The school district prepared an IEP, which the parents considered inadequate (mainly because the child's class would be much larger than psychologists had said was appropriate). The parents thus placed the child in a new private school and sought reimbursement. In the state administrative proceedings, the school district conceded that its IEP had been inadequate, buit it argued that the private school placement was also inappropriate. Agreeing, the state administrative review officer denied reimbursement.

The parents brought a suit in the federal district court for the Southern District of New York, where Judge Brieant granted reimbursement. Based on evidence that was not available to the state review officer (viz., the child's progress at the private school after the state agency decision), Judge Brieant determined that the private-school placement was in fact appropriate.

The Second Circuit affirmed that determination, and then went on to decide an issue with even broader significance. The school district argued that language in the 1997 IDEA Amendments gave it a complete defense to the claim for reimbursement. That language, from 20 U.S.C. § 1412(a)(10)(C)(ii), authorizes reimbursement to the parents of a child, "who previously received special education and related services under the authority of a public agency" and who enrolled the child in a private elementary or secondary school without the consent or referral of the private agency, "if the court or hearing officer finds that the agency had not made a free appropriate public education available to the child in a timely manner prior to enrollment." As the school district read that language, a parent is not entitled to reimbursement for a private school placement unless she first tried out the IEP the school district offered and found it wanting. Because the parents in this case had never tried out the IEP, the school district argued that they were not entitled to reimbursement (even though the IEP was inadequate and the private school placement was appropriate).

The court rejected the school district's argument. The court concluded that the language of Section 1412(a)(10)(C)(ii) raises no negative inference that would deny reimbursement to parents who place their kids in private school without waiting for a concededly inadequate IEP to fail. Such an inference would be inconsistent with the statute's general language authorizing "appropriate" remedies for IEP violations -- language that the Supreme Court has read as authorizing a requirement of reimbursement in cases just like this one. And requiring parents to wait out a year of failure before choosing a private-school placement would be inconsistent with the purposes of the statute and lead to absurd results.

Harris on ADA Mediation

On SSRN, Seth Harris has just posted Disabilities Accommodation, Transaction Costs, and Mediation: Evidence From the EEOC's Mediation Program, an interesting empirical study. The abstract:

This paper examines whether mediators' job is different and more difficult when workers and employers are negotiating over a disabilities accommodation issue as compared with negotiations over other employment discrimination issues. The mediator's job includes getting the parties to exchange information, and at times acquire information, and to accept the new information as relevant to their expectations about the negotiation's results. This paper focuses on transaction costs in disabilities accommodations negotiations that might make this aspect of the mediator's job more difficult. Specifically, if the information needed in disabilities accommodations negotiations is more complex, more extensive, and more closely held by the parties, the mediator's job in those negotiations will be more difficult.

There are several grounds for speculation that the mediator's role in disabilities accommodations negotiations is different. First, workers' rights and employers' responsibilities under the ADA's accommodation mandate are more ambiguous and contingent than under most other anti-discrimination statutes. Second, and closely related, employers may enter negotiations with a bias against accommodations claims. Third, although common to many negotiations, bilateral asymmetric information may be a particular problem in disabilities accommodation negotiations.

Finally, finding an effective and efficient accommodation can be a vastly more complex undertaking than, for example, calculating and remedying a discriminatory pay differential or redressing a discriminatory firing or demotion decision.

Using data from the U.S. Equal Employment Opportunity Commission's mediation program, this paper offers preliminary evidence regarding differences between disabilities accommodation negotiations and negotiations over other employment discrimination issues. It offers an original analysis of a data set constructed by E. Patrick McDermott and his co-authors from a survey of participants in the EEOC's mediation program. The participants' responses offer indirect evidence of differences in the informational transaction costs that arise in disabilities accommodations negotiations and negotiations over other employment discrimination issues.

The legal literature identifies three methods that mediators use to overcome informational transaction costs: (1) mediators improve information exchange; (2) mediators help to de-bias negotiations; (3) mediators serve as bridges to information about solutions to accommodations problems and, in selected cases, propose solutions that the participants would not or could not propose themselves. Participants were asked to react to five favorable statements about their mediators that were reasonable proxies for these techniques. I found statistically significant, if small, differences between the responses of participants in disabilities accommodations negotiations and participants in negotiations over other kinds of employment discrimination issues. This evidence suggests that mediators have a more difficult time using these techniques to overcome transaction costs in disabilities accommodation negotiations. Thus, because they are harder to overcome, we can deduce that there is something different about informational transaction costs in disabilities accommodations negotiations.

The evidence suggests three conclusions about what the differences are. First, information exchange is more difficult in disabilities accommodations negotiations. Second, the mediators' role in proposing solutions and providing information about possible solutions is more critical to disabilities accommodations negotiations. Finally, disabilities accommodations negotiations are more likely to be stalled and frustrated by employers' biases against disabilities accommodations.

Satz on "Normal Species Functioning" in Disability Law

New on SSRN: Ani Satz, A Jurisprudence of Dysfunction: On the Role of 'Normal Species Functioning' in Disability Analysis, 6 Yale J. Health Pol'y, L. & Ethics 221 (2006). The abstract:

This article considers the proper role of normal species functioning in disability analysis. Failure to consider properly the role of normal functioning has profoundly impacted American disability law by creating divergent outcomes in the application of established United States Supreme Court tests and severely undermining protections for persons with disabilities. This article examines competing, dominant conceptual models of functioning, the Supreme Court's use of these models, and then proposes a novel conceptual framework, which requires a blend of the models as applied to three distinct levels of disability analysis. This article is a discrete and integral part of disability law reform, bearing on the tension between civil rights and social welfare models of disability law.

Happy Sweet Sixteen, ADA

My inbox today had a few notes commemorating today's sixteenth anniversary of the signing of the ADA.

ADA Watch put out this press release:

WASHINGTON, July 26, 2006 - Today we acknowledge the 16th anniversary of the Americans with Disabilities Act (ADA) - and yet another year of inaction on ADA restoration proposals put forth by the President's own advisors.

In 2004, responding to years of court decisions that have significantly weakened the ADA, the National Council on Disability (NCD) - whose 15 members were nominated by President Bush and confirmed by the Senate - released comprehensive legislative recommendations for restoring civil rights protections for children and adults with physical, mental, cognitive and developmental disabilities.

Upon release of the NCD report, Cox News Service reporter, Andrew Mollison, predicted:

"Since the council members are Bush appointees, their recommendation is expected to receive serious consideration by the Republican-controlled Congress. The president is also expected to sympathize, because he pushed hard in his first term for cheaper but better ways to get jobs for adults with disabilities, and the proposed revision of the ADA wouldn't require higher federal spending."

Despite former and current Republican members of Congress crying "foul" in response to the weakening of the ADA - Ohio Republican Senator Mike DeWine, for example, has said that he is "deeply troubled by the Court's lack of deference to Congress." - no support has come from the White House or the Congressional leadership to advance NCD's blueprints for restoring the ADA.

Jim Ward, Founder and President of ADA Watch and the National Coalition for Disability Rights, explains that 16 years after passage of the ADA, "more than 96% of employment case under the ADA are dismissed on "summary judgment" - meaning that the facts of the alleged discrimination are never given a fair hearing. Furthermore, people with disabilities such as epilepsy, diabetes, mental illness and more are routinely denied justice and labeled "not disabled enough" by judges who narrowly interpret the intent of Congress in passing the ADA.

"Despite widespread agreement that the courts are misinterpreting the Americans with Disabilities Act, neither the White House or Congress has responded to the urgent need to reverse the damage done. Neither the White House nor Congress has heeded NCD's recommendations for legislatively restoring the Americans with Disabilities Act."

"This shameful inaction and delay by the White House and Congressional leaders, leaves unfulfilled America's promise of equal justice and opportunity for citizens with disabilities."

Representatives Hoyer, Millender-McDonald, and Langevin had an op-ed in Roll Call (thanks to Rick Hasen for the pointer). It begins:

Sixteen years ago, Congress took a major step forward in achieving America's promise of equality for all citizens by enacting the Americans with Disabilities Act. This landmark legislation was, as President George H.W. Bush said when he signed it into law, "the world's first comprehensive declaration of equality for people with disabilities."

Simply put, the ADA banned all discrimination on the basis of disability in the areas of employment, public accommodations, public services, transportation and telecommunications. In doing so, our society acknowledged the right of all Americans to live independently and to fully participate in all aspects of our society, including our schools, our businesses, our communities and our government.

At the Capitol, we have taken important steps to ensure that disabled individuals are able to participate in the legislative process, and to visit and enjoy the awe-inspiring history and beauty of the Capitol complex:

To ensure that disabled Members of the House are able to fully participate in floor proceedings, accommodations have been made to the House chamber that allow for wheelchair access. An adjustable podium and accessible voting station also have been installed.

To provide disabled staff with the resources necessary to perform their official duties, accommodations have been made to ensure that their assigned office space is fully accessible. In addition, the furniture replacement program provides for furnishing configurations that meet ADA design standards; administrative support offices have been outfitted with automatic door openers; the House Learning Center has been retrofitted to provide wheelchair-accessible study stations and low-vision systems for the visually impaired; and House Information Services provides resources to all House offices to ensure that House Web sites are ADA compliant.

To make Capitol square and the House office buildings more accessible not only to Members and staff but to the visiting public as well, ADA compliant signage is being installed throughout the campus; the Office of Special Services provides a number of key services to House offices and visitors with special needs; restrooms and food service facilities have been upgraded to be fully accessible; each building has been outfitted with a fully accessible entrance/exit; interior and exterior signage has been installed to identify accessible entrances, exits and restrooms; emergency egress elevators for the disabled have been designated on each floor; the campus sidewalks are being modified to include wheelchair ramps at all pedestrian crosswalks; and the Capitol Police and administrative personnel now are provided training on responding to people with disabilities.

This is an impressive list of accomplishments. Much has been done. But there is still more we must do to improve accessibility for people with disabilities. . . . .

And Representative Pelosi put out this press release:

Washington, D.C. - House Democratic Leader Nancy Pelosi released the following statement today in celebration of the 16th anniversary of the Americans with Disabilities Act:

"The Americans with Disabilities Act affirms that every American has the right to live independently and to fully participate in all aspects of our society. This landmark legislation represents our nation's commitment to protect the civil rights of more than 54 million Americans. It has broken down barriers and it has fostered inclusion. Most significantly, it transformed society's attitudes toward people with disabilities, and it advanced our nation's fundamental calling to respect each individual.

"The ADA was founded upon the values of equality, opportunity, and independence. However, there is much work to be done. Only 32 percent of people of working age who have a disability are employed. And today, people with disabilities are still three times more likely to live in poverty.

"That is why our commitment to the ADA must never waver. Sadly, the Bush Administration's support for the rights of individuals with disabilities has been sorely lacking. President Bush has chosen judges for the federal bench who are hostile to the ADA. He has actually proposed funding cuts to Medicaid, Section 8 housing, vocational rehabilitation, and assistive technology - all of which are essential to fostering independence. Furthermore, it is alarming there are legislative proposals to allow people opportunities to disregard the ADA or to treat it as an inconvenience. These proposals are intended to weaken, not strengthen, the ADA and thus our commitment to people with disabilities. Democrats are committed to opposing these proposals vigorously.

"Democrats are committed to expanding opportunities for individuals with disabilities and all Americans."

C.D. Cal. on Another Serial ADA Case

New on Westlaw: On July 5, Judge Carney of the Central District of California issued his opinion in Doran v. Del Taco, Inc., 2006 WL 2037942 (C.D. Cal., July 5, 2006). Jerry Doran, a frequent ADA litigant (who has sued other Del Taco restaurants before) claimed that a Del Taco restaurant in Mission Viejo, California, was inaccessible in violation of the statute's public accommodations provisions. After a discussion of the "abuse of the ADA," Judge Carney dismissed the case for lack of standing, because it was not clear that Doran had ever visited this Del Taco before he filed his suit:

The record before the Court is clear: Mr. Doran was, and is, confused about what restaurants he has visited and when those alleged visits occurred. His testimony in this case has changed dramatically over time. He has conceded on more than one occasion that he confused Del Taco restaurant # 415 with another Del Taco restaurant, or with a Taco Bell restaurant, or with some other fast food restaurant. There simply are too many inconsistencies and inaccuracies for the Court to conclude that Mr. Doran visited Del Taco restaurant # 415, which is located over 500 miles from his residence, before he filed his complaint.

I don't have any criticism for Judge Carney's decision given the record he discussed. But I do think it's interesting that the suit did seem to prompt Del Taco to make its restaurant accessible:

Although Mr. Doran did not respond to Del Taco's offer of judgment and its offer to promptly remove any architectural barriers, Del Taco still set out to remove all of the barriers identified by Mr. Doran by way of his expert Reed Settle. Stanley Albright, Del Taco's Director of Construction and Facilities, testified that Del Taco removed every barrier listed in Mr. Settle's June and September 2005 reports. Specifically, Del Taco added tow away contact information in the parking lot; installed ISA signage; installed additional disability van signage; reduced the angle of the slope on the accessible stall; relocated the paper towel dispenser; installed motion control flush valves on the toilets; wrapped the P-trap in the restroom; relocated the toilet paper dispenser, removed and relocated the toilet seat cover dispenser, replaced the sidewalk ramp so the cross slope does not exceed 2%; changed the surface slope of the sidewalk so the slope does not exceed 5%; and installed ISA signage on the sides of the leading edges of the tables in the dining room. (Rep. Tr., Albright Testimony, 28-50.) Mr. Albright testified that all of the barriers listed in Mr. Settle's June and September 2005 reports were removed and that the restaurant was in full compliance with the ADA. (Rep. Tr., Albright Testimony, 40:20-24; 50:5-15.) In addition, Del Taco posted a sign at the restaurant encouraging persons with disabilities to ask for assistance from a Del Taco employee if needed. (Tr. Exh. 106.)

There's no excuse for someone to testify, as a basis for standing, that he went somewhere he didn't actually go (or somewhere he's not sure he went). But the fact that it took an abusive litigant to identify what seem like real barriers to access suggests the incredible degree of underenforcement of the law.

DC Circuit on IDEA Fee Cap

On Friday, the DC Circuit issued the latest in a long string of rulings on the limitations Congress has imposed against recovery of attorneys' fees in IDEA cases against the District of Columbia. In this case, Blackman v. District of Columbia, the court held that the cap applies not just to proceedings brought under the IDEA itself, but also to cases brought under Section 1983 to enforce the IDEA.

Stein on Disabling Brown

New on Westlaw: Michael Ashley Stein, Disabling Brown, 14 Wm. & Mary Bill Rts. J. 1421 (2006). It's a short introduction to a symposium, and it begins:

On May 17, 1954, the United States Supreme Court issued its decision in Brown v. Board of Education, arguably the most famous American civil rights case of the twentieth century, striking down segregation in public schools. Exactly fifty years later, the Court decided Tennessee v. Lane, finding that disabled citizens may sue states under Title II of the Americans with Disabilities Act of 1990 (ADA) to enforce a right of access to court services.

Though ostensibly a victory for people with disabilities, the majority decision in Lane is the by-product of a fractured Court, and is limited both in scope and applicability. Despite the ADA's prohibition against disabled persons being "excluded from participation in or be[ing] denied the benefits of the services, programs, or activities of a public entity," the Court confined its holding to an individual's right of access to courts. In so doing, it left open the question of whether people with disabilities can gain relief when denied access to other state facilities, programs, and services. Lane is, therefore, of a piece consistent with the Court's positive ADA jurisprudence upholding claims within a narrow set of plaintiff-specific rights -- in this instance, the right of a paraplegic wheelchair-user to be able to physically enter a court of law to attend and answer criminal charges rather than drag himself up and down flights of stairs, as he had done for his first appearance. From a disability rights perspective, Lane is nevertheless preferable to the broad policy statements the Court issues when negatively interpreting the ADA's employment provisions.

What, then, can be learned by examining the respective methodologies and contexts of Brown and Lane?

Spencer on Circuit Split on Enforcement of Medicaid Provision

Summer is slow even in disability law land, but A. Benjamin Spencer's great Split Circuits blog has this post on the Sixth Circuit's recent Westside Mothers II decision, which widens a circuit split on the enforceability of 42 U.S.C. 1396a(a)(30). That provision requires that state Medicaid plans "provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan . . . as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area." Since the Supreme Court's 2002 decision in Gonzaga University v. Doe, the First and Ninth Circuits have held that individuals may not enforce that provision in suits brought under 42 U.S.C. 1983, while the Eighth Circuit has held that they may. in its recent decision, the Sixth Circuit sided with the First and Ninth Circuits and held that the provision is unenforceable.

Enforcing the Disabilities Law

See this interesting article by that title in today's Inside Higher Ed. The article begins:

Among college officials, it’s widely known that many campus facilities do not comply with standards for accessibility required by the Americans With Disabilities Act. Most colleges focus on the issue when they are adding new facilities or when they receive complaints from students or employees.

The U.S. Justice Department has become interested in the issue, however, and some colleges may be experiencing more scrutiny than they are used to about the ADA. The department this week announced a settlement in which the University of Chicago has pledged to make a series of improvements in facilities over the next four years and to regularly report its progress. The university denied the Justice Department’s contention that it was violating the law, but agreed to make the changes nonetheless.

Chicago may soon have company. Its review was focused on Title III of the ADA, which deals primarily with facilities. About 10 other colleges are currently undergoing similar reviews, according to Cynthia Magnuson, a spokeswoman for the Justice Department’s civil rights division. To date, only the Chicago review, which has been completed, has been announced.

Magnuson said that the reviews have not necessarily been prompted by specific complaints — and Chicago officials stated that their review was not prompted by a complaint.

But Magnuson described the review process as “not random” and said that institutions are selected for reviews because “we’re aware of certain problems.” Department officials hope that the reviews will lead to improvements not only at the institutions being studied, but more generally in higher education, she said.

The ADA in Santa Fe

See this interesting article, which begins:

Listen to Santa Feans with disabilities, and you'll learn The City Different isn't particularly kind to people who are different. ``It's not easy being different,'' said one city resident who uses a walker.

On July 26, the Americans with Disabilities Act turns 16 years old. Since 1990, we have certainly made progress in opening public institutions, employment, education and other systems to people with disabilities.

But we haven't yet fulfilled the ADA's promise of making community life accessible to all.

No Grumbling About the Americans with Disabilities Act

See this interesting op-ed by that title. An excerpt:

One of the biggest lessons I learned was: Thank goodness for the ADA.

The ADA is the Americans with Disabilities Act. The 1990 law was largely aimed at preventing discrimination against people with disabilities in hiring and employment. But it also specified that all public venues, such as hotels, restaurants, theaters, stores and auditoriums, should provide accommodations to let people with disabilities use their facilities.

During the worst of my ordeal, that law was a lifesaver.

There were times as I shuffled along with my walker that I couldn't have climbed a sidewalk if not for a curb cut-in or entered a building if not for an automatic door. A temporary handicapped-parking pass let me park close to the front of drugstores and grocery stores. Had I parked any farther away, I couldn't have made it to the store and back.

While I was injured we drove to Wisconsin, and on that trip I took my first showers in weeks - because every hotel had a bar on the shower wall that let me hold myself upright while the water cascaded on me.

It was a vivid lesson in how necessary those accommodations must be to people with disabilities - and a reminder that all of us are just an unexpected injury away from needing them ourselves.

Consent Decree in Communication Case Against Laurel Regional Hospital

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

Laurel Regional Hospital has signed a federal consent decree guaranteeing that hearing-impaired patients receive the aids and services necessary to communicate adequately with doctors and nurses.

The decree resolves a complaint filed in January by seven deaf men and women who alleged that their repeated requests for sign language interpreters were denied in violation of the American With Disabilities Act. They said they had to interact with staff members in sometimes critical medical situations by writing notes or trying to read lips.

The hospital agreed to change its facilities, equipment and policies, including adding video interpreting services and better educating staff. A spokeswoman said yesterday that "there's going to be accessibility 24/7."

Thanks to Wash. U. student Benjamin Norris for the tip.

Gordon on the IDEA Inclusion Debate

New on Westlaw: Stacey Gordon, Making Sense of the Inclusion Debate Under IDEA, 2006 B.Y.U. Educ. & L.J. 189. From the introduction:

This article will demonstrate how the most recent federal legislation regarding IDEA, the reauthorization of the Individuals with Disabilities Education Improvement Act of 2004 (the 2004 Reauthorization), reinforces the historical tensions between access and process, and outcomes and accountability. The 2004 Reauthorization emphasizes the conflict between individualized treatment and general mandates for all students. The 2004 Reauthorization, with its focus on accountability, sets forth new amendments that continue to fuel the inclusion debate. Its emphasis on accountability stems from the promulgation of the No Child Left Behind Act of 2001, which applies to both disabled and non-disabled students.

From the passage of the EAHCA to the 1990 reauthorization of IDEA to the recent reauthorization of the 2004 Reauthorization, educating students with disabilities has been rather contentious. Throughout the legislations' development, competing themes of access versus accountability and process versus outcomes have shaped the inclusion debate. To what extent should children with disabilities be involved in general education classrooms, and to what extent should their curriculum be modified from that of their peers? In addition to these questions, legislators and special educators disagree as to the extent to which accountability standards should be used for students with disabilities and how these accountability measures reflect the effectiveness of the educational process for those students.

This article analyzes the controversies surrounding the full inclusion of students with disabilities into general education classrooms by looking at the interplay between IDEA's main educational priorities for students with disabilities. The article will also consider purposes behind the EAHCA, the courts' interpretation of IDEA, and the recent amendments to the 2004 Reauthorization and will demonstrate a recent shift in the educational priorities for students with disabilities from a focus on access to an increased attention on accountability. The article will then propose that further development of education policy for students with disabilities requires explicitly recognizing and balancing the tensions that exist among the laws that pertain to educating students with disabilities.

Part I of this article provides a brief overview of the legislative history of laws that address the education of students with disabilities, demonstrating the legislature's beginning focus on access to education and the initial tension within the requirements of IDEA. Part II analyzes judicial interpretations of the inclusion debate as well as the dispute in educational circles by focusing specifically on requirements for adhering to IDEA's least restrictive environment provision. Part III analyzes recent amendments to IDEA and the tension between individual-focused decision-making and general mandates on testing. Finally, the conclusion suggests proposals for refocusing the inclusion debate in order to mediate between conflicting priorities and create an educational environment where students can succeed.

Two New by Zirkel on IDEA Remedies

Perry Zirkel has two new pieces on Westlaw. The first is The Remedial Authority of Hearing and Review Officers Under the Individuals with Disabilities Education Act, 58 Admin. L. Rev. 401 (2006). From the introduction:

The purpose of this Article is to demarcate the extent of H/ROs' remedial authority under the IDEA and correlative state special education laws. The sources for this synthesis are pertinent court decisions, published H/RO decisions, and interpretations of the Department of Education's Office of Special Education Programs (OSEP) to date. The boundaries of this Article, however, do not extend to the related issues of the deference accorded to or by H/ROs under the IDEA; H/ROs' impartiality or, to the extent that it does not directly intertwine with remedial authority, H/ROs' jurisdiction under the IDEA; the statute of limitations for filing for a first- or second-tier administrative proceeding under the IDEA; or hearing officers' remedial authority under § 504. Moreover, the boundaries of this Article are limited to the scope of the H/ROs' remedial authority, not to the standards they use to reach remedies. Finally, this Article only addresses H/ROs' remedial authority as a result of, not during, the prehearing and hearing process.

To a large extent, the pertinent legal authorities treat the remedial authority of H/ROs as derived from and largely commensurate with the remedial authority of the courts. The following Parts of this Article delineate the specific boundaries of this derived remedial authority in special education cases with respect to each of the major categories of relief--declaratory, injunctive, and monetary--in this order of approximately ascending strength. When the applicable source--court, H/RO, or OSEP-- addresses multiple forms of relief, I categorize the decision as the strongest relief except when there is separate treatment of each remedy.

The second is Compensatory Education Under the Individuals with Disabilities Education Act: The Third Circuit's Partially Mis-Leading Position, 110 Penn St. L. Rev. 879 (2006). From the introduction:

The purpose of this Article is to describe, evaluate, and propose revisions for the Third Circuit's approach to remedies under the IDEA, with primary attention to compensatory education. The first part of the Article summarizes the United States Supreme Court's two foundational decisions, which established the availability of and criteria for the remedy of tuition reimbursement under the IDEA. The second part of the Article addresses the Third Circuit's IDEA interpretations with regard to IDEA remedies, particularly compensatory education. The third part of the Article traces the relevant Congressional provisions in the successive reauthorizations of the IDEA, which focus on tuition reimbursement. Finally, the fourth part of the Article illustrates the confusion in the Third Circuit's approach and suggests a more coherent and consistent approach for compensatory education, which is informed by the Congressional and judicial development of tuition reimbursement.

Gone Fishin'

I'm off on a little mini-vacation until July 12. Don't expect any posts until the 13th.

First Circuit Holds ADA is Proper Section 5 Legislation as Applied to Education

I'm about to leave for a little mini-vacation, but I had to post on a decision the First Circuit issued today. In Toledo v. Sanchez-Rivera, the court held that "Title II [of the ADA], as it applies to the class of cases implicating the right of access to public education, constitutes a valid exercise of Congress' § 5 authority to enforce the guarantees of the Fourteenth Amendment. Accordingly, state sovereign immunity is not a defense to this action, and we affirm the district court's decision to reinstate Toledo's Title II claims." The case was brought by a student at the University of Puerto Rico. The First Circuit thus joins the Fourth and Eleventh Circuits in upholding Title II as valid Section 5 legislation in the education context.