Eighth Circuit Adds to Circuit Split on Reassignment

Today, in Huber v. Wal-Mart Stores, the Eighth Circuit ruled that the ADA requires that an employee with a disability be reassigned to a vacant position as an accommodation only if the employee is the most qualified applicant for that position. This decision adds to a longstanding circuit split on the question.

In my view, the Eighth Circuit got it wrong. The ADA explicitly lists reassignment to a vacant position as a possible accommodation. If the Eighth Circuit is right, however, Congress accomplished absolutely nothing by adding the language about reassignment. Under the Eighth Circuit's interpretation, the employer is required to reassign an employee only if it would have reassigned her anyway, in the absence of the ADA. But Congress clearly meant to accomplish more than that, and the Supreme Court in US Airways v. Barnett seemed to recognize the point.

Ninth Circuit: Prior Notice Not Necessary to Get Attorneys' Fees in Title III Case

Earlier this week, in an unpublished memorandum in Doran v. Del Taco, Inc., the Ninth Circuit issued yet another good decision on attorneys' fees in Title III cases. (See earlier discussion here.) The district court had denied thet plaintiff attorneys' fees, even though he had prevailed, because he had not given the defendant restaurant notice and an opportunity to cure the accessibility problems without litigation. The Ninth Circuit reversed. It held that the district court abused its discretion when it "denied fees by subjecting Doran to a [notice] requirement not found in the ADA or the case law."

En Banc Third Circuit: Can't Enforce IDEA Through Section 1983

Yesterday, the en banc Third Circuit unanimously ruled, in A.W. v. Jersey City Public Schools, that the Individuals with Disabilities Education act cannot be enforced through 42 U.S.C. 1983. This is an important decision, because it means that kids and parents can't get money damages for violation of the IDEA, and it makes it nigh-impossible to maintain class-based claims for violation of the IDEA. The court's decision overrules its own prior precedent, and is inconsistent with decisions of a number of other circuits. (The court also took a bit of a leap in concluding that it had appellate jurisdiction to decide the issue in the first place.) Oh yeah, and the court concludes with a ruling, that also creates a circuit split, that Section 504 of the Rehabilitation Act cannot be enforced through Section 1983 either. All told, a significant and problematic decision.

Samaha on the Social Model

New on SSRN: Adam Samaha, What Good is the Social Model of Disability? (U. Chicago L. Rev., forthcoming). The abstract:

A social model of disability relates a person's disadvantage to the combination of personal traits and social setting. The model appears to have had a profound impact on academics, politics, and law since the 1970s. Scholars have debated the model's force but its limitations are more severe than have been recognized. This Article claims that the model, like all social construction accounts, has essentially no policy implications. Its impact depends on normative commitments developed by some other logic, such as membership in the disability rights movement or adherence to versions of libertarian, utilitarian, or egalitarian theory that are triggered by the model's causation story. At the same time, a normative framework within which the social model is relevant will suggest not only policy goals but also an institutional design. These points are illustrated by recent controversies involving genetic screening technology, cochlear implants, and sign language communities. Contrary to impressions left in the law literature, the social model has nothing to say about the proper response to such developments, although the model might have a mediated influence on our sense of the best decisionmakers.

This is a very good paper, and I think it will be an important paper. Nevertheless, I think this whole "nothing to say" business is quite a bit overstated -- and the paper itself seems to acknowledge the point. Some social-model scholars might think that the causation story (that disability is caused by an interaction between physical/mental traits and the environment) itself answers all the key normative questions about disability policy -- and even more might write things that might be interpreted that way -- but I think the overwhelming majority of social-model scholars understand that our broader normative views ought to influence how we respond to that causation story. Most social-model scholars start with liberal-to-left egalitarian views, as well as an affiliation with the disability rights movement, and those normative commitments obviously have a great deal to do with what they think are the policy implications of the social model. I doubt anyone would deny that. I think a lot of social-model scholars use the term "social model" as a shorthand description for both the causation story and these normative commitments. Read that way, the social model obviously has quite a bit to say about disability policy, and I don't think Samaha denies that.

Moreover, the social-model causation story itself has something to say about disability policy, because it helps to expand our understanding of the possible policy responses to disability. If you think of disability as a medical condition, inherent in the person with a disability, then your only possible responses are some combination of cure and charity. What the social-model causation story said was that there's another set of options -- alter the aspects of the environment that make certain physical and mental traits disabling. Obviously, which environmental alterations we make (and whether we want to make them at all) depends on some deeper normative commitments, and for some impairments there is no conceivable set of environmental alterations that can remove the disabling effect, but the point of the social-model causation story is that the option is there far more often than people think. The social model was speaking to policymakers who believed that people with disabilities were unfortunates who were appropriate targets of largesse and saying that charity and cure isn't the only answer. And I think it's been quite effective in that regard. (And Samaha acknowledges the point in the paper.)

So pace Samaha, I think the social model has quite a bit to say. It's not a complete answer to any policy question -- but neither, I'd say, are any of the normative theories Samaha discusses in his paper. Adherents to the social model may overstate its implications, but Samaha overstates its limitations.

Supreme Court: Parents Have Enforceable Rights Under IDEA

Today, the Supreme Court issued its opinion in Winkelman v. Parma City School District. The case presented the question whether parents can proceed in federal court pro se (that is, without a lawyer) to enforce provisions of the Individuals with Disabilities Education Act relating to their child's education. The Court, in a 7-2 decision, held that parents can proceed pro se in federal court. Justice Kennedy wrote the majority opinion, which concluded that the IDEA gives parents exactly the same rights relating to their children's education as it gives to their children. In an opinion concurring in the judgment in part and dissenting in part, Justice Scalia (joined by Justice Thomas) argued that parents have only two classes of enforceable rights under the IDEA: (1) a right to reimbursement if the school district denied a free appropriate public education and the parents sent the child to private school as a result; and (2) certain procedural rights.

It's nice to see the Court rule for the parents in an IDEA case, and the Court's holistic approach to reading the statute will be probably be helpful in future cases.

Ed. Department Releases IDEA Part C Rules

See this article, which begins:

The U.S. Department of Education has released long-awaited proposed regulations for the portion of the federal special education law that focuses on infants and toddlers with disabilities.

Referred to as Part C of the Individuals with Disabilities Education Act, the $436 million early-childhood program was established in 1986 to serve children from infancy to age 2. About 265,000 children nationally, representing about 2 percent of the population of babies and toddlers, were served under Part C, according to data collected by the Education Department in 2002.

Proposed regulations were introduced once before, in 2000, but were withdrawn from consideration in 2002 because, the department said, the special education law was too close to reauthorization for the regulations to be useful.

Among the new changes, according to the department, are clarifications in areas such as confidentiality and the use of insurance to pay for Part C services.

Eleventh Circuit: Mental Retardation is Not a Disability Under the ADA

Is this case a parody? No, it's an outrage. The Eleventh Circuit held, in an unpublished per curiam opinion, that an individual with mental retardation did not have a "disability" as defined by the ADA. Not only that, it held that the district court properly granted summary judgment against him on the "disability" issue. Here's a taste of the court's analysis:

The record shows that Littleton is able to read and comprehend and is able to perform various types of jobs. It is apparent that Littleton is somewhat limited in his ability to learn because of his mental retardation. However, he has pointed to no evidence which would create a genuine issue of material fact regarding whether he was substantially limited in the major life activity of learning because of his mental retardation.

It is unclear whether thinking, communicating and social interaction are “major life activities” under the ADA. We acknowledge that a review of Littleton’s deposition testimony is not inconsistent with his assertion that he sometimes has difficulty thinking or communicating. Even if thinking and communicating are major life activities, however, Littleton has not shown that he is substantially limited in those activities. As Wal-Mart contends, moreover, the fact that Littleton drives a car might be determined to be inconsistent with his assertion that his abilities to think and learn are substantially limited. Additionally, Littleton’s mother and Agee testified that Littleton is capable of being interviewed for a job without any accommodation, is “very verbal,” and would not need a job coach to communicate effectively with other people in the workforce. This bolsters Wal-Mart’s contention that any difficulty Littleton has with communicating does not appear to be a substantial limitation.

We do not doubt that Littleton has certain limitations because of his mental retardation. In order to qualify as “disabled” under the ADA, however, Littleton has the burden of proving that he actually is, is perceived to be, or has a record of being substantially limited as to “major life activities” under the ADA. 42 U.S.C. §§ 12102(2)(A), 12112(a), 12132; see also Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220, 1227 (11th Cir. 1997). Assuming that thinking, communicating and social interaction are “major life activities” under the ADA, we conclude that Littleton has failed to create a genuine issue of material fact that he is substantially limited in those pursuits. Thus he has failed to assert a prima facie case of discrimination under the ADA.

Takes One to Know One

Can you believe that Showtime gives these guys a forum for this kind of glibertarian propaganda? They're much better comedians than propagandists, anyway. I've seen lots of folks make libertarian arguments sound appealing, but these guys seem incapable of doing anything other than preaching to the converted.

Nice Opinion on Zoning Accommodations for Group Homes

New on Westlaw: Developmental Services v. City of Lincoln, 2007 WL 1290082 (D. Neb., May 2, 2007). The court's introduction sums it up:

Evidence showing heaps of red tape, garnished with bureaucratic indifference and inconsistent and irrelevant posturing by city officials, elected and otherwise, does not make the City of Lincoln guilty of consciously intending to discriminate against people with developmental disabilities. But that evidence, and more, does prove that Lincoln denied a group home provider and its developmentally disabled clients reasonable accommodations to land-use requirements. As a result, taxpayers will have to pay the provider a lot of money for the City's violation of federal law. Sadly, by merely acting reasonably, Lincoln could have easily avoided that expensive outcome.

N.D.W.Va.: Title II Validly Abrogates Sovereign Immunity in Context of Medical Residency

New on Westlaw: Sarkissian v. West Virginia Univ. Bd. of Governors, 2007 WL 1308978 (N.D.W.Va., May 3, 2007). Dr. Sarkissian was discharged from a medical residency at the West Virginia School of Medicine. He sued under, inter alia, Title II; he claimed that the school had refused to accommodate his ADHD. The school moved to dismiss on sovereign immunity grounds, and the district court denied the motion to dismiss. The Fourth Circuit had earlier held that Title II validly abrogates state sovereign immunity in cases involving public higher education, and the Supreme Court held in the Garrett case that the ADA did not validly abrogate state sovereign immunity in cases involving employment. A medical residency is a bit of a hybrid of higher education and employment, but the court concluded that a residency is primarily educational rather than vocational. Accordingly, applying the Fourth Circuit's higher-education precedent, it held that Title II does validly abrogate state sovereign immunity in the medical residency context. Expect an appeal.

NYT on Prenatal Testing for Down Syndrome, and Commentary

Today's New York Times contains this article on prenatal testing for Down syndrome. A key passage:

Until this year, only pregnant women 35 and older were routinely tested to see if their fetuses had the extra chromosome that causes Down syndrome. As a result many couples were given the diagnosis only at birth. But under a new recommendation from the American College of Obstetricians and Gynecologists, doctors have begun to offer a new, safer screening procedure to all pregnant women, regardless of age.

About 90 percent of pregnant women who are given a Down syndrome diagnosis have chosen to have an abortion.

Convinced that more couples would choose to continue their pregnancies if they better appreciated what it meant to raise a child with Down syndrome, a growing group of parents are seeking to insert their own positive perspectives into a decision often dominated by daunting medical statistics and doctors who feel obligated to describe the difficulties of life with a disabled child.

Ann Althouse comments:

In the future, it seems, anyone taking care of a child with Down syndrome will be viewed as a saint... or, perhaps, misguided and foolish.

Dana Goldstein comments:

As anyone who's had their life enriched by a loved one with a disability can attest, these conversations are incredibly fraught. But without judging any family's choice to either end or continue such a pregnancy, the issues remain the same -- the right to choose an abortion and the freedom from coercive pressure. Expectant parents should be given information, resources, and support as they make these complex choices. But expect the antis to boil this issue down into a talking point and portray pro-choicers as mad scientists trying to genetically manipulate the human race.

I discussed some of these issues, and the problems they present for people like me who favor both disability rights and abortion rights, in this piece. There are a bunch of competing considerations here. When women choose to abort after receiving a diagnosis of Down syndrome, they often do so on the basis of misperceptions about the lives of people with that condition. Those misperceptions stem from and feed into a general societal view of people with disabilities as being less than fully worthy citizens. From a disability rights perspective, those are big problems. In principle, it makes sense that pregnant women whose fetuses have been so diagnosed should receive full information on the point -- that people with Down syndrome can be happy and productive members of a family and a community. But Goldstein is quite right that a strategy of abortion opponents (validated by the Supreme Court's reasoning in the recent Carhart case) is to pack increasingly burdensome and coercive requirements into the category of "informed consent." Expressed concern about disability rights could easily be used as a way of imposing yet more burdens under that heading. And I don't think disability rights advocates should be so happy with the message expressed by many of the folks who are urging women not to abort fetuses that have been diagnosed with Down syndrome -- a message that is, essentially, that it's really saintly of you to be the parent to a child with that condition. This is a hard issue, and, unfortunately, will be one of the next battlegrounds in the abortion rights wars.