Friday, September 29, 2006
Thursday, September 28, 2006
Interesting Seventh Circuit Case on Zoning Accommodations
This is one of the most complicated issues in disability discrimination law, but I have to say that I'm not sure how coherent is the line the Seventh Circuit is trying to draw here. A requirement that an accommodation be "necessary to alleviate discrimination" has to turn on some understanding of what is "discrimination." The court quite rightly says that "discrimination" for purposes of the ADA can't be limited to intentional discrimination or practices that have a disparate impact on an entire class of people with disabilities -- disability is individualized, and something could exclude me because of my disability without having any effect on other folks with disabilities. But then when it comes to applying its test, the court seems to fall back on an intentional-discrimination view: Because health clinics that serve the nondisabled would also be denied the permit, there's no evidence that an accommodation that would grant the permit to WCS would be necessary to avoid discrimination.
But I would think that the reasonable accommodation requirement would take a different view of discrimination. If I need a particular kind of chair and desk because of my disability, and I work for an employer who refuses all special requests for office furniture, I'm in the same position as WCS's constitutents were here -- nondisabled people would be denied the same thing I asked for. But like WCS's constituents here, my disability would give me a greater need for the accommodation -- I can't work without the chair and desk; for them it's a matter of convenience. Similarly, WCS's constituents can't live in the community without WCS having clinics around; for people who would visit "non-profit health clinics serving the non-disabled," the stakes aren't as high. To fail to take that into account seems to me to miss the point of the accommodation requirement.
Wednesday, September 27, 2006
New Article on Miranda Warnings for Deaf Suspects
A police officer reading Miranda rights to someone can appear robotic. But there is nothing routine when the suspect is a deaf person. Deaf suspects can effectively lose their constitutional rights in the time it takes to raise an eyebrow. The conceptual and linguistic difficulties of deaf suspects-whose first language is often American Sign Language-cannot be overcome by direct translation into written English or manually coded English. English is primarily a spoken language. All hearing children of English-speaking parents absorb it unconsciously, starting from the moment of birth. They are surrounded with English; bombarded with it from all sides! They listen; they imitate. Effortlessly, it seems, they begin to put together grammatically correct sentences well before they learn to read. Children who are born deaf or early-deafened are excluded from this process because they cannot hear.
Deaf people thus face tremendous challenges within the criminal justice system. Foremost among these challenges is their ability to understand what is being said to them, as well as their ability to communicate their thoughts and feelings. This inability to understand and communicate is, primarily, linguistic, which has nothing to do with overall mental status, intelligence, or competence.
When confronted by law enforcement officers issuing a Miranda warning, a deaf person's behavior may deviate from the generally expected norm because a prelingually deaf person grows up in a world of communicational and cultural differences. The deaf community forms a "Deaf Culture" that is recognized by many as analogous to a minority culture. A deaf person cannot be fairly judged using the same criteria employed for a hearing person. The experience of deafness impacts a person's entire world. Being deaf means more than just being unable to hear.
Judge Thompson: ADA Title II Doesn't Validly Abrogate Sovereign Immunity in Employment
Wednesday, September 20, 2006
Government Supports Parents' Cert. Petition in IDEA Case
Wednesday, September 13, 2006
Testimony at ADA Oversight Hearing
Tuesday, September 12, 2006
Sixth Circuit Obesity Decision
This decision seems to me quite confused, though it's a confusing area so I cut the court some slack. What does it mean to say that morbid obesity has a "physiological cause"? All of our behavior has some physiological cause, if only from hormones and brain activity. And there's lots of reason to believe that brain proteins that alter appetite and activity levels, not to mention genetics, are substantial contributors to morbid obesity. More broadly, every fact about our body is by definition physiological. And morbid obesity, being a condition of one's physiology, is by definition a "physiological condition."
So the problem can't be that the worker's morbid obesity had no "physiological cause" or was not a "physiological condition." The problem has to be that he had no physiological "disorder." But what does that mean? The theory of "disorder" can't be a condition that has some identifiable organic etiology, or most "syndrome"-type conditions would be ruled out. We often just don't know what the etiology of a particular condition is, even when doctors diagnose it, recognize that it calls for treatment, and treat it. For it to make any sense, I think "impairment" has to be defined medically -- according to what are the conditions that are the basis for recognized medical (and psychological, since the statute includes both physical and mental impairments) diagnoses. On that score, morbid obesity that meets clinical criteria should always be an "impairment" -- which doesn't mean it will always be a "disability," as the plaintiff will still have to show actual or perceived substantial limitation of a major life activity.
Thanks to How Appealing for the tip.
Friday, September 08, 2006
Hensel and Jones on Mental Illness Stigma and the ADA
This Article represents one of the first attempts to ascertain empirically whether mentally-impaired litigants experiencing psychiatric disorders are disadvantaged vis-a-vis those with physical impairments in establishing membership in the protected class under the ADA. Part I provides the background for the study by identifying and discussing the historical stigma and stereotypes associated with mental illness and psychiatric impairments which continue to thrive today. Particular attention is paid to the potential impact such stigma may have in an employment context, and the challenges it creates for impaired employees in the workplace. Part II scrutinizes the legislative history of the ADA to determine whether evidence of such stigma was present during the legislative process, identifying the reluctance of several lawmakers to extend protection to people with psychiatric impairments. Part III reveals the results of an empirical study of all Title I district and circuit court decisions, available in LexisNexis or Westlaw, in three appellate circuits over two discrete two-year time periods, which directly address whether litigants have established class coverage under the ADA. The study compares the success rates of physically and mentally impaired litigants in an attempt to answer whether individuals with psychiatric disorders face systemic challenges that are not shared by physically-impaired litigants. Part IV proposes possible explanations for the surprisingly comparable success rates between the two tested groups, examining subtle sources of continuing stigma that may explain the unexpected results. Part V concludes with proposals for future research and action by advocates to ensure that people with mental illness are able to secure the full and equal protection from discrimination that is the promise of the ADA.
For my long-ago take on stigma and the ADA, see this article.
Important Web Accessibility Ruling
A federal judge ruled Wednesday that Target Corp. may be sued if its Web site is inaccessible to the blind, allowing a disabilities class action suit against the retailer to go forward.
The Minneapolis-based company unsuccessfully sought a dismissal of the action in U.S. District Court for the Northern District of California, arguing that that only its stores are covered by disabilities lawsThe court ruled instead that all services provided by Target, including its Web site, must be accessible to the disabled.
The suit brought by the National Federation of the Blind charges that Target's Web site is inaccessible to the blind, and therefore violates the Americans with Disabilities Act as well as California state laws.
Thursday, September 07, 2006
Our Hedonic Damages Paper
This article contributes to the broad debate over "adaptive preferences" in law, economics, and political philosophy by addressing an important ongoing controversy in tort law. Hedonic damages compensate for the lost enjoyment of life that results from a tortious injury. Lawyers seeking hedonic damages in personal injury cases emphasize their clients' new status as compromised and damaged persons, and courts frequently uphold jury verdicts awarding hedonic damages to individuals who experienced disabling injuries based on a view that disability necessarily limits one's enjoyment of life. This view is consonant with a general societal understanding of disability as a tragedy and of people with disabilities as natural objects of pity. But a rich psychological literature demonstrates that disability does not inherently limit enjoyment of life to the degree that these courts suggest. Rather, people who experience disabling injuries tend to adapt to their disabilities. To be sure, the views of people with disabilities about their own quality of life are classic adaptive preferences. Accordingly, one might suggest that the legal system should disregard those views. But we argue that the legal system goes wrong by so devaluing the experience of people with disabilities. When courts award damages based on the (nondisabled person's) view that disability is tragic, they distract attention from the societal choices and stigmas that attach disadvantage to disability; they also make it harder for people with disabilities to make hedonic adjustments to their conditions. For deterrence and compensation reasons, people who experience disabling injuries should be able to recover for their physical pain; for medical expenses and the cost of assistive technology and personal assistance; for the opportunities society denies people with their conditions; and for the effects of social stigma. But they should not recover for any purported effect of disability on the enjoyment of life.
Ed. Department Gives Primer on IDEA Regulations
After two days of carefully outlining changes in federal special education policy wrought by recently unveiled regulations, Department of Education officials last week acknowledged that they weren’t ready to give an audience of special educators what it wanted most: answers to hundreds of specific questions.
The Education Department’s office of special education programs planned its annual leadership conference to give school, district, and state special education officials a primer on the regulations covering the 2004 reauthorization of the Individuals with Disabilities Education Act, the federal law that governs the education of 6.7 million students in special education. The regulations were released Aug. 3 and were published in the Federal Register on Aug. 14. ("Final IDEA Regulations Clarify Key Issues," Aug. 9, 2006.)
But to provide more details, OSEP said it is taking the regulations on a road trip.
The department will hold three regional meetings devoted to implementation issues in January and February. In addition, the department plans eight informal public meetings around the country to introduce the regulations to the public.
The first of those public meetings will be held Sept. 26 in Charlotte, N.C., and Sept. 27 in Tampa, Fla. Additional gatherings will be held in Philadelphia, Seattle, Minneapolis, Dallas, Denver, and Sacramento, Calif., but the dates have not yet been set.
“It was an idea to reach a broader audience, to get out and get very personal,” Alexa Posny, the director of OSEP, said in an interview. “I’m hoping it’s community members who are there—people who would not ordinarily come to a conference like this.”
Also, OSEP unveiled a Web site, http://idea.ed.gov/, which officials say will be a frequently updated repository of information related to the IDEA regulations, including video interviews, question-and-answer sections, and links to government-funded agencies that provide technical assistance to schools, states, and parents.
Normally, the annual OSEP conference, which was held Aug. 28-30 this year, might focus on giving practical information to special educators, Ms. Posny said. But with the regulations released just two weeks before this year’s conference, she said, “this was a very intentional overview.”
Still, she wanted attendees to leave with the idea that the regulations have been made as user-friendly as possible, and that the Education Department considered all of the more than 5,500 public comments submitted in response to draft regulations.
“One comment from one person absolutely could have made a difference,” Ms. Posny said. “Every one of them was read, and every one of them was responded to.”
Another goal was to let state and local special education directors know there is nothing to fear in the new regulations, said Ms. Posny, a former deputy commissioner of education in Kansas. What special educators saw in the 2004 renewal of the IDEA and in the proposed regulations are in the final regulations, she said.
Justice Department Gives Oakwood Five More Years to Shape Up
The U.S. Department of Justice has reached a settlement agreement with the state of Kentucky giving it five years to make changes to ensure that the 254 residents at Communities at Oakwood are protected from harm, and have adequate supports and services.
The settlement may mean little, however, if the U.S. Centers for Medicare and Medicaid decides this month to withdraw $43 million in federal funding for the facility.
The Justice Department has been monitoring conditions at Oakwood since 2001, when federal investigators found widespread problems of abuse and neglect of the adults with developmental disabilities housed at the institution. That led to a 2004 "memorandum on understanding" signed by state and Justice Department officials designed to improve conditions.
Conditions have not improved. In fact, since January 2005, the state's own inspector general with the Cabinet for Health and Family Services has given Oakwood its most serious 'Type A' citation 22 times for abuse and neglect. In the past two years, 15 Oakwood employees have been charged with mistreating residents. Just last month, one former employee was sentenced to two years in prison for abusing a resident.
According to a DOJ statement released Thursday, the new agreement "replaces and strengthens" the 2004 out-of-court settlement. Justice Department officials said key differences include the fact that this time a federal judge will monitor conditions at Oakwood, and that the state could be found in contempt of court and fined if those conditions are not improved.
However, Wes Butler, general counsel for Kentucky's Cabinet for Health and Family Services, told the Lexington Herald-Leader that Thursday's settlement agreement is nearly identical to the 2004 memorandum of understanding.
Wednesday, September 06, 2006
Hentoff on Schiavo
Coombs on Schiavo
Using the Schiavo case as a springboard, this article explores how a bioethics process could provide, in some situations, a better way of dealing with dilemmas over withdrawal of life-saving medical treatment. It briefly examines the different kinds of processes that health care facilities have to deal with these problems and focuses on a bioethics consultation/mediation, in which a trained person helps the participants - the health care team, the patient to the extent he or she is able to communicate, the proxy, if any, and the family - to reach a decision on what should be done. It recognizes the risks of such a process and calls for a constrained deference, in which the consultant/mediator will seek to ensure an adequate, open discourse and to deflect the participants from any outcomes that are ethically problematic.
It then compares such a process with adjudication, both in terms of process values and likely substantive outcomes. In regard to substance, it distinguishes between those situations in which the patient had provided an advance directive, where his or her wishes should be followed even if the active participants might prefer a different outcome and those where there is no advance directive. In the latter situation, the decision reached by a consensus among the parties should ordinarily be followed, given the values furthered by doing so and the relative lack of certainty regarding what specific outcome the patient would have wanted.
Colleges Feel Heat to Help Disabled
The first time the fire alarm went off in his University of Chicago dorm, Jonathan Ko, a quadriplegic, was in bed, without a plan of escape. Had it been a real fire, there would have been no obvious way for anyone to know he was stuck.
Days later, a red sign went up in his window to alert firefighters to his location.
Years after Ko's experience and 16 years after the Americans with Disabilities Act led to sweeping changes in accommodations for people with special needs, the University of Chicago and many other institutions are still grappling with how to adapt - a slow evolution tolerated, until recently, by the government.
But roughly two years ago, the U.S. Department of Justice launched an investigation at the University of Chicago and about 10 other universities.
Last month, to avoid litigation, University of Chicago officials signed an agreement with the Justice Department that requires extensive campus improvements during the next four years.
Government officials hope the University of Chicago settlement and another signed last month with Colorado College are only the beginning of a series of agreements that will require universities to improve access and accommodations for students with disabilities.
The cost of retrofitting buildings, as well as revamping everything from parking to emergency plans, has caught the attention of academia.
"The Justice Department is sending a very strong shot across the bow of American higher education, from community colleges to major research universities, that they are serious about the enforcement of ADA," said Sheldon Steinbach, general counsel for the Washington, D.C.-based American Council on Education. He said it could be "extraordinarily expensive" to comply with what the Justice Department wants.
Tuesday, September 05, 2006
Important Inter-American Court of Human Rights Decision
A group of Harvard Law students has helped to bring about a landmark decision by the Inter-American Court of Human Rights, which ruled earlier this month that the Brazilian government bears responsibility for the death of a patient in a state-affiliated psychiatric hospital.
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The decision, which is believed to be the first of its kind in South America, said that Brazil violated its obligations to respect and guarantee human rights, violated the right to life and personal integrity, and violated the family’s right to judicial protection and guarantees. The Inter-American Court on Human Rights, the highest tribunal within the Organization of American States, ordered Brazil to pay compensation to Damião’s family.
Interesting Bill Stuntz Piece
Stuntz's piece isn't about the law (though he is a law professor). Margo Schlanger and I explore some of the legal implications (particularly for tort law) of hedonic adaptation to disability in a piece we are working on. Drop me a line and I'll send you a copy.
UPDATE: A recent draft of my piece is here.