Fox and Griffin on the ADA's "Collateral Effects"

Up on SSRN: Dov Fox & Christopher Griffin have posted The Collateral Effects of Law on Social Behavior: The Case of Antidiscrimination Law and Selective Abortion. The abstract:

This Article explores the powerful ways in which changes in the law can bring about unexpected changes in social behavior that is unrelated to that which the law regulates. We puzzle through this unexamined phenomenon by considering the relation between a major antidiscrimination law, the Americans with Disabilities
Act (ADA), and a routine reproductive practice, selective abortion on the basis of Down syndrome. Our empirical analysis of U.S. natality data suggests that the ADA has the surprising effect of preventing the existence of the very class of people the law was intended to protect. We explain this paradox by showing how the ADA's implementation mechanism generates stigmatizing attitudes toward people with disabilities. The law's requirement that those seeking its protection prove the limitations caused by their disability does damage to our understandings and expectations about what it means to be disabled. Using formal regression analysis, we find suggestive evidence that the ADA significantly increased the incidence of decisions to terminate a pregnancy following a positive test for Down syndrome. We discuss the implications of this expressive externality for disability, reproduction, and antidiscrimination law in the United States.

Inmates with Disabilities in the LA County Jail

It's not a pretty picture. See this LA Times article, which begins:

For several hours, as he waited to get booked for petty theft at the Los Angeles County Jail in October, Peter Johnson told deputies he needed to go to the restroom.

Although other inmates were free to use the facilities, Johnson -- a paraplegic -- was told there were none in the area equipped to accommodate the physically disabled. Guards, he said, seemed indifferent to his plight, telling him he simply had to wait.

"We are treated like the worst of the worst because of our disabilities," said Johnson, who ultimately lost control of his bowels and was forced to sit in his own feces for more than six hours.

Johnson, who is still incarcerated, and more than a dozen other disabled inmates complain that the county jail system, by design, discriminates against them.

Simple tasks like taking a shower, getting onto a bunk or using the lavatory become impossible.

A recent study commissioned by the Disability Rights Legal Center and American Civil Liberties Union of Southern California found severe problems with how disabled inmates are treated. The report concluded that the Sheriff's Department was violating the Americans with Disabilities Act (ADA), which prohibits discrimination against people with disabilities.

Lawyers for the two groups say they plan to file a lawsuit against the county today that would seek a court order requiring that the jails to comply with anti-discrimination laws.

Law.Com on First Blind Supreme Court Clerk

Tony Mauro has this very good article on Isaac Lidsky, a former student of mine who will this Summer become the first blind person to serve as a law clerk at the Supreme Court.

Travis on the ADA's Benefits for People without Disabilities

New on SSRN: Michele Travis, Lashing Back at the ADA Backlash: How the Americans with Disabilities Act Benefits Americans Without Disabilities (Tenn. L. Rev., forthcoming). The abstract:

This Article applies Professor Derrick Bell's "interest convergence hypothesis" to the disability context. By identifying how the ADA benefits nondisabled workers, this Article challenges the notion that advancing equality for individuals with disabilities necessarily comes at the expense of the nondisabled workforce.

Many scholars have documented the socio-legal backlash against the ADA, particularly the ADA's reasonable accommodation mandate. This backlash is fueled in part by a belief that the ADA is a form of social welfare, rather than an antidiscrimination law, and that the accommodation mandate requires affirmative action or preferential treatment, rather than merely ensuring equal employment opportunities. More specifically, there is a growing sentiment that the ADA divides workers into two categories - those with disabilities and those without - and that workers with disabilities are benefiting at the expense of the nondisabled workforce.

Scholars have explored several strategies for unsettling this "us versus them" mentality. Some have proposed educating judges and the public that accommodation is really a form of equal employment opportunity, while others prefer embracing the affirmative action or preference labels and instead demonstrating that such legal protection is warranted. Others have attempted more directly to prove that accommodations impose lower costs on nondisabled workers than most people assume. This Article adds another strategy that thus far has been missing from this list: demonstrating to ADA opponents how the ADA affirmatively benefits them.

Identifying these benefits requires looking not just at the ADA's text and case law, but also at the workplace practices that the statute has required, inspired, or incentivized, which sociologists in the "new institutionalism" tradition have shown is crucial in assessing a law's impact. In taking an institutional approach, this Article demonstrates the variety of ways in which the ADA aligns the interests of workers with and without disabilities, rather than pitting them against each other in a zero-sum game, thereby giving all workers a stake in the ADA's future.

Satz on GINA (and, Inter Alia, the ADA)

Ani Satz has this very interesting op-ed today in the Atlanta Journal-Constitution on the Genetic Information Nondiscrimination Act (which President Bush signed last week) and its interaction with other health laws and the ADA. It begins:

On Wednesday, President Bush signed the Genetic Information Nondiscrimination Act, affording genetic information special protections. A product of more than a decade of debate, this moment was bittersweet. GINA may harm many of the individuals it is designed to protect.

The act increases protections only for some medical information, privileging those with genetic conditions over those with nongenetic ones. This necessarily places greater pressure on insurers to use nongenetic medical information to segregate risk. Further, it creates unequal disability protections. GINA protects individuals with genetic conditions from health insurance and employment discrimination even if they have no symptoms of the condition. The Americans with Disabilities Act protects only individuals with symptoms in regard to employment, services and public accommodation.

GINA also creates the perception that genetic testing is unique and not basic health care. This may further limit already restricted coverage of such technologies under public and private health insurance. In addition, heightened protections for genetic testing may discourage insurers from covering such services out of fear that they will open themselves to increased risk of litigation for breaching patient privacy. Further, insurers and employers are likely to lose incentive to provide genetic testing when they are not allowed access to the results, as they are for other diagnostic tests.

Huberfeld on Medicaid and Section 1983

Up on SSRN: Nicole Huberfeld, Bizarre Love Triangle: The Spending Clause, Section 1983, and Medicaid Entitlements. The abstract:

The first two terms of the Roberts Court signal a willingness to revisit precedent, and the Court appears poised to reinterpret another area of jurisprudence: the private enforcement of conditions on federal spending against states through actions under 42 U.S.C. § 1983. The most recent pre-Roberts Court precedent is Gonzaga University v. Doe. Federal courts have inconsistently and confusingly applied the Gonzaga framework, but the Rehnquist Court would not revisit the rule. Last term, the Roberts Court granted a petition for certiorari that would have required reconsidering Gonzaga. Before it could be heard on the merits, the respondents mooted the case, but petitions for certiorari regularly arise in similar Medicaid enforcement cases. Thus, Gonzaga is likely to be revisited in the context of enforcement of Medicaid statutory entitlements. Medicaid does not contain an enforcement mechanism, but the Supreme Court facilitated enforcement of federal statutory rights against state officers through section 1983. However, this paper highlights recent events that increasethe fragility of Medicaid.

The first part of this paper explores the structure of Medicaid and key provisions of the Deficit Reduction Act of 2005 that change Medicaid from a program of promised care and benefits into one of no enforceable promises. The second part of this paper discusses Supreme Court decisions that reveal hostility to enforcement of conditions on spending legislation by beneficiaries under section 1983. This part also explores how changes in the Court's composition may allow this view to become the prevailing rule. Additionally, this section demonstrates the narrowing ability of individuals to enforce Medicaid entitlements through section 1983 due to two distinct but related splits in the circuit courts. The final part of this paper analyzes the Court's hostility to enforcing conditions on spending by section 1983 and proposes legislative responses to the impending demise of the Medicaid entitlement.

Alaska Supreme Court Issues Stay of Forced Medication

Jim Gottstein passes along this order issued by the Alaska Supreme Court on Friday. The key passage:

There is at least implicit disagreement in this case about whether administration of psychotropic medication causes medical health problems that are potentially grave or whether itmay even contribute to mental illness. At least by implication, the involuntary administration ofmedication against appellant's fervent wishes may cause psychic harm, Whether long~term administration ofsuch medication causes irreparable harm is an issue that implicates the merits of this appeal. The evidence appellant produced at the mid-May hearing permits a conclusion long-term medication will cause him irreparable harm. It also appears to imply that even the administration of a single dose, or an additional dose, intravenously may contribute to irreparable harm. The 5/20 affidavit of Dr. Jackson does not seem to expressly address the harm that might result from a single fifty-milligram intravenous injection of Risperadone. But it also appears that the likelihood the medication will end with the proposed injection authorized 5/19/08 by the superior court is small. Appellant has been admitted seventy-five times to API. It is likely that ifhe is released with or without medication (his thirty-day commitment order was entered 5/5108), he will be readmitted to API in the future and that API staff will again seek a medication order. Thus, if the medication is administered as presently authorized, it seems likely that he will sooner or later following return to the community decline to voluntarily accept medication and that API will seek permission to administer additional doses. In other words, whether irreparable harm will result from the medication authorized by the 5/19 order necessarily raises longer-term questions.

API asserts that its interests cannot be adequately protected. It certainly has an important interest in fulfilling its duty to patients and in satisfYing its charter obligations to the public. But the evidence to date does not establish that medication is necessary to protect appellant from self-inflicted harm or from retaliatory harm in response to his behavior, threatening as it may seem to others. Nor has API identified any need to protect others from him, including API staff during his commitment or the public upon his release. This is not to minimize API's interest both in doing what it believes best for appellant and in carrying out its responsibilities. But it does not appear that API cannot adequately protect those interests. API's interest in protecting appellant does not dramatically outweigh his desire to make treatment decisions for himself, It therefore appears that the appropriate standard for a stay pending appeal is whether appellant has raised serious and substantial questions going to the merits ofthe case. He does not have to demonstrate a clear showing of probable success on the merits.

Proposed California Law on Crime Victims with Disabilities

Via the Word Warrior, I read of a bill introduced by State Rep. Sally Lieber that would fund a series of programs involving crime victims with disabilities. Here is a summary of the bill:

In order to ensure that people with disabilities are treated with respect, this bill (AB 2038 ) will make sure, among other things, that law enforcement officers will be trained about the unique needs of people with disabilities (for example, making sure that physical examinations take into account a person’s cognitive or physical disabilities) and mandates that violence-prevention education include appropriate information about victims of crime who have disabilities.

Brief in Brown v. Tennessee Dept. of Finance and Administration

Today, along with my cocounsel from the Disability Law and Advocacy Center of Tennessee, the National Health Law Program, and the Nashville law firm of Brewer, Krause, Brooks, Chastain & Burrow, I filed this brief for the plaintiffs-appellees in Brown v. Tennessee Department of Finance and Administration. The case is a class action brought on behalf of Tennessee residents with developmental disabilities who were eligible for but denied enrollment in home-and-community-based waiver programs. The state entered into a consent decree a couple of years back, but now it wants out of the deal. Our brief argues that there's no basis for vacating the decree.

Perlin on Panetti

New on SSRN: Michael L. Perlin, Insanity is Smashing Up Against My Soul: Panetti v. Quarterman and Questions That Won't Go Away. The abstract:

In Panetti v. Quarterman, the US Supreme Court expanded upon and clarified its earlier decision in Ford v. Wainwright, barring the execution of persons with mental disabilities who do not have a rational understanding of the reasons he is to be executed. The Panetti decision, however, has a second holding that may be equally important: that the failure to provide a defendant an adequate opportunity to submit expert evidence in response to the report filed by the court-appointed experts thus deprived him of his constitutionally adequate opportunity to be heard.

Both of these holdings leave open multiple questions that will likely be explored in subsequent cases (how severe does a mental illness have to be to qualify under this standard? how closely will it monitor the extent to which lower courts implement the new standard? To what extent does this decision augur a new level of comfort with expert testimony in other sorts of criminal proceedings). However, the Court chose not to address the question that many observers had thought was at the core of the case: whether a defendant can be medicated so as to make him competent to be executed? Does the Court's decision to not confront this question mean that it will never deal with such a case?

In this discussion of Panetti, I offer some possible answers to these questions.

Francis and Mialon on Tolerance and HIV

New on SSRN: Andrew M. Francis & Hugo M. Mialon, Tolerance and HIV. The abstract:

We empirically investigate the effect of attitudes toward gays on the spread of HIV in the United States. Using a state-level panel dataset spanning the mid-1970s to the late 1990s, we find that tolerance for gays significantly decreases the HIV rate. We then investigate the causal mechanisms potentially underlying this relationship. We find evidence consistent with the theory that tolerant attitudes toward homosexuals cause low-risk men to enter the pool of homosexual partners, as well as cause sexually active men to substitute from underground, anonymous, and risky behaviors to open, socially mediated, and less risky behaviors, both of which lower the HIV rate. We consider several alternative hypotheses and conclude that they are unlikely to explain the findings. Our estimates imply that taking steps to promote tolerance may result in thousands of fewer HIV cases annually.

NYT on ACB v. Paulson

The New York Times has this interesting article on the currency ruling, with a lot of quotes from people with visual impairments who really are happy about it.

LA Times Article on ACB v. Paulson

In tomorrow's LA Times, David Savage has a good, brief article on the currency case that I noted yesterday.

Does Wi-Fi Violate the ADA?

See this interesting post on that question on Disaboom. It begins:

Some Santa Fe residents are seeking to ban Wi-Fi signals in public buildings across the city. The residents, who claim to be highly electro-sensitive, claim that the prevalence of Wi-Fi signals causes adverse reactions such as headaches along with joint and muscle soreness. Despite using specially protected walls inside their cars and homes, these residents still feel the effect of the Wi-Fi signals.

Wi-Fi is a wireless technology that connects users to the internet, media and data. Wi-Fi is supported by most computers and networks in today's world. You can find Wi-Fi in coffee shops, book stores, libraries and some government buildings.

A group of electrically-sensitive residents in Santa Fe is suing the city and claims that broadcasting Wi-Fi signals in public areas is a violation of the Americans with Disabilities Act. The city attorney is now checking into the matter to see if it is indeed a violation.

I'm dubious that this is a violation of the ADA. If the plaintiffs feel the effects of Wi-Fi signals even inside their specially protected homes, it's hard to see how the city (which has got to be an awfully minor contributor to the aggregate Wi-Fi signals within its boundaries) could reasonably modify its policies and practices to avoid the problems these plaintiffs are facing. I'd be very interested to see the papers in this lawsuit, though (assuming there is a lawsuit -- the news story linked by the blog post suggests that people have complained, but it doesn't mention any lawsuit).

Schmall on Mental Health Parity

New on SSRN: Lorraine Schmall, Real Mental Health Parity. The abstract:

Advocates for political and legislative changes to the American health system posit that getting more (or all) people insured will resolve the inequalities in health care. That overlooks the disparity in the present system between mental and other health problems. Compromised and dated attempts by Congress and state lawmakers to create mental health parity made insignificant changes in access to care for those with mental illness.This unprotected class has all the qualifications for recognition as suspect (or semi-suspect) but the Supreme Court has not regarded it so. Fear, stereotyping and lack of information has historically and contemporaneously led to discriminatory treatment and the embrace of policies and practices that have a tragically disparate impact upon the emotionally unwell. Insurers and benefit plan sponsors can discriminate without economic justification. Civil Rights laws aimed at protecting the disabled are better suited to problems connected with physical disabilities. Definitions and accommodations needed for the mentally ill have not been
advanced in decades of litigation. However, if the data in this research is credible, mental health parity is economically efficient, both in reducing other health care costs and in maximizing the utility of an employee with untreated problems.

Perlin on the Civil Rights of Institutionalized Persons

New on SSRN: Michael Perlin, "Through the Wide Cathedral Evening": Barriers, Attitudes, Participatory Democracy, Professor tenBroek, and the Rights of Persons with Mental Disabilities (Texas Journal of Civil Liberties and Civil Rights, forthcoming). The abstract:

This article is a commentary on Michael Ashley Stein & Janet Lord, Jacobus tenBroek, Participatory Justice, and the UN Convention on the Rights of Persons with Disabilities, - Tex. J. Civ Lib. & Civ. Rts. - (2008) (in press). In it, I seek to expand their analysis of the new UN Convention on the Rights of Persons with Disabilities in an effort to invigorate an area of institutionalized patients rights law that is now nearly forgotten: the rights of such persons to exercise civil rights while institutionalized. I also argue that Prof. Stein and Ms. Lord's paper should lead us to focus also on the issues of attitudes, and how authentic amelioration and law reform in this area is impossible unless and until we begin to consider how negative and stereotypical attitudes towards persons with mental disabilities are formed and perpetuated. I conclude that the demand for participatory justice for persons with disabilities cannot be satisfied unless and until we turn our attention to attitudinal
issues.

Perlin on Lawyers with Mental Disabilities

New on SSRN: Michael Perlin, "Baby, Look Inside Your Mirror": The Legal Professions Willful and Sanist Blindness to Lawyers with Mental Disabilities (University of Pittsburgh Law Review, forthcoming). The abstract:

The legal profession has notoriously ignored the reality that a significant number of its members exhibit signs of serious mental illness (and become addicted or habituated to drugs or alcohol at levels that are statistically significantly elevated from levels of the public at large). This is no longer news. What has not been explored is why so much of the bar has remained willfully ignorant of these realities, and why it refuses to confront the depths of this problem.

The roots of this puzzle are found in the social attitude of sanism, an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, that infects both our jurisprudence and our lawyering practices, that is largely invisible and largely socially acceptable, and that is based predominantly upon stereotype, myth, superstition, and deindividualization, is sustained and perpetuated by our use of alleged ordinary common sense (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process.

Just as lawyers are sanist towards clients with mental disabilities, they are sanist towards their peers with mental disabilities. This presentation will (1) explain sanism, (2) describe its impact upon the legal system with special attention paid to the narrow but important question of its impact on lawyers who represent persons with mental disabilities, (3) speculate as to why lawyers are as susceptible (or more susceptible) to sanism's pernicious power as
others, and then consider (4) how a consideration of and an application of therapeutic jurisprudence principles to this problem may eventually have a redemptive effect.

Disabled Kids: The Next Civil Rights Movement

See this interesting article by that title in a BusinessWeek blog.

I'm Back!

So, after a year off to rest my blogging muscles and do some administrative work, I'm back on the job! I hope you enjoy my updated updates (and the new look)!

D.C. Circuit Holds Paper Money Violates Rehabilitation Act

What a way to welcome me back! Today, in a very significant ruling that surely won't be the last word in the case, a divided panel of the D.C. Circuit held that our current system of paper money denies meaningful access to people with visual impairments and thus violates the Rehabilitation Act. From Judge Rogers's majority opinion (joined by GWB appointee Judge Griffith):

Congress expressly intended the Rehabilitation Act to ensure that members of the disabled community could live independently and fully participate in society. 29 U.S.C. § 701(b)(1). The Secretary acknowledges that a paper currency system designed for the sighted means that millions of visually impaired individuals are dependent on the kindness of others, unless they purchase expensive electronic equipment, in using U.S. currency. Such dependence, which is amply supported by the record, constitutes a denial of meaningful access to U.S. currency that is not remedied by use of existing coping mechanisms. The record further demonstrates that the Secretary has not met his burden to show, as an affirmative defense, that each identified accommodation that is facially reasonable, effective, and feasible would impose an undue burden. A large majority of other currency systems have accommodated the visually impaired, and the Secretary does not explain why U.S. currency should be any different. The financial costs identified by the Secretary are not out of line with the costs associated with other currency changes that the Secretary has made and could be reduced were accommodations made as part of other planned changes. Further, this lawsuit seeks neither alteration of the system of using paper currency as such nor a specific accommodation dictated by court order, leaving the Secretary to choose the means of bringing U.S. currency into compliance with section 504. Accordingly, we affirm the grant of partial summary judgment and remand the case for the district court to address the request for injunctive relief.

From Judge Randolph's dissent:

In short, my colleagues have not identified a single accommodation that is undisputedly “reasonable, effective, and feasible,” Maj. Op. at 15, and for which there is no material issue about an undue burden. They do not know what if anything should be implemented as an accommodation and neither does the American Council of the Blind, the Treasury, the district court, or the National Federation of the Blind (who supports Treasury). Yet my colleagues affirm the grant of summary judgment against the Secretary. In doing so they state that because the Secretary did not show that every possible measure would impose an undue burden, he is barred on remand from showing that any particular measure would have this effect. Maj. Op. at 29-30, 33. This cannot possibly be correct.