The Charter School Two-Step in Minneapolis

Charter schools can be an effective tool for providing an appropriate education to students with disabilities.  But too many seem most interested in keeping those students out.  Too often, we see what I call the charter school two-step.  In step one, a district turns over an underperforming or failing school (defined largely by test scores) to a charter operator.  In step two, the charter operator, immediately or some time down the road, turns away many of its students with disabilities (who -- coincidentally or not -- often have lower test scores).  An ongoing lawsuit highlights the extent of this problem in New Orleans -- where more than two-thirds of students attend charter schools.  And a recent GAO report discusses the problem in a nationwide context.  Today, via Diane Ravitch's blog, I came across this well-reported story that documents the same sort of conduct in a Minneapolis charter school.

Harkin: Sequester Could Cause Nearly $1 Billion in IDEA Funding Cuts

See this post from the valuable On Special Education blog.  It begins:

Across-the-board federal budget cuts could take a nearly $1 billion bite out of federal special education spending, with the bulk of that representing state grants for the education of school-age children with disabilities. 

The automatic cuts, or sequestration, could come in January if Congress doesn't come up with a way to put the country on firmer fiscal footing, as my colleague Alyson Klein explains over at the Politics K-12 blog.

Kansas City Enters Project Civic Access Agreement with DOJ

See this article, which begins:

Kansas City has reached a settlement that requires millions of dollars in city improvements to comply with the Americans with Disabilities Act, the Justice Department announced Wednesday. 

The settlement, which the City Council authorized earlier this year, makes Kansas City the 200th city nationally to agree to improve access to public facilities for people with disabilities, as required by the law. 

“We are committed to helping every resident fully participate in all Kansas City has to offer,” Mayor Sly James said in a statement. “Our city has historically been a leader on issues of inclusion and equal access, and I am proud we are once again demonstrating that commitment.”

DREDF Files Class Action Against Walmart for Inaccessible Credit/Debit Card Machines

See this article, which begins:

A local disability rights organization and two Bay Area women who use wheelchairs filed a federal class action lawsuit against Walmart on Wednesday claiming many of its credit and debit card machines are physically out of reach and violate the Americans with Disabilities Act. 

Berkeley-based Center for Independent Living, Janet Brown of Pittsburg and Lisa Kilgore of San Pablo are asking a judge to order Walmart to move the credit and debit machines so they can reach them. In the suit they also cite the California Disabled Persons Act and the California Unruh Civil Rights Act.

Coleman on Assisted Suicide Laws and the ADA

At the Not Dead Yet blog, Diane Coleman has this post arguing, on the occasion of the statute's 22d Anniversary, that laws allowing assisted suicide violate the ADA.

Happy Birthday ADA!

Twenty-two years.  We're so proud!

Diane Ravitch on Special Education Vouchers

See this blog post.

Maddow Blog on CRPD Troubles

See this post by Steve Benen.

Sen. DeMint Blocks CRPD

See this post from The Hill, which begins:

Sen. Jim DeMint (R-S.C.) is delaying Senate consideration of the United Nations treaty on people with disabilities amid growing opposition from home-schooling advocates. 

The Senate Foreign Relations Committee was scheduled to take up the UN Convention on the Rights of People with Disabilities on Thursday, with the goal of getting it passed in time for the 22nd anniversary of the Americans with Disabilities Act on July 26. Instead, Chairman John Kerry (D-Mass.) announced that he will hold the markup next Thursday, July 26. 

A spokesman for DeMint said several Republicans on the committee joined him in asking for the delay.

SoMeLaw Blog on Netflix

The social media law blog SoMeLaw Thoughts has this interesting commentary on the Netflix decision, about which I've blogged a couple of times.  An excerpt:

Given the uncertain nature of the law and the regulations so far, what does this tell us about whether corporations and individuals should spend the time including captions on online videos? My take is that it’s a good idea to do so now. Partly because it’s the right thing to do, and partly because most courts are going to be sympathetic to entities who have made at least a good-faith effort to provide captioning. 

Captioning is time-consuming, and can be expensive (and real-time captioning for webinars and suchlike is even more expensive). But it’s not difficult anymore. YouTube’s voice-recognition capability makes the process more like editing and less like transcribing. Not to mention that captioning adds value in terms of SEO (which is why YouTube does it). And captioning makes your video more inclusive, and I think we can all agree that that is a good thing. And I also think we can all agree that it’s just wrong to make cats dress up in Renaissance fair costumes and lip-sync to Katy Perry songs.

Travis on the ADAAA

Just out: Michelle A. Travis, Impairment as Protected Status: A New Universality for Disability Rights, 46 Ga. L. Rev. 937 (2012).  From the introduction:

The ADAAA's new form of universality has the potential to provide a cohesive alternative to the two existing theories that often divide the disability rights community regarding the most effective form of civil rights legislation. Advocates on one side of this divide contend that disability should be recognized and respected as a minority group status. While emphasizing that disability is not an inherent trait, these advocates highlight the distinct life experiences shared only by those individuals whose particular impairments produce significant functional limitations, widespread stigma, and pervasive social exclusion. These advocates argue that civil rights coverage should be limited only to members of this socially constructed but identifiable and subordinated minority. 

Advocates on the other side of the divide argue that disability is better understood as a universal continuum that reflects infinite degrees of socially imposed limitation. Supporters of the continuum approach question the ability to identify a discrete and insular minority, and they contend that any attempt to do so reinforces the notion of disability as an intrinsic personal deficit-a notion that both sides uniformly denounce.  Under this “traditional” form of universalism, civil rights law would neither distinguish nor exclude from coverage any individual who experiences any form of impairment-based disadvantage. While those in favor of minority group treatment argue that the continuum approach ignores and disrespects the existence of a unique disability identity, traditional universalists believe that conceptualizing disability as a continuum is the only way to erase the stigmatizing line that society has drawn between “us” and “them.” 

The ADAAA offers an alternative approach to disability civil rights coverage-an approach that has the potential to bridge the existing divide and thereby strengthen the disability rights movement. Understanding the ADAAA as having implicitly elevated impairment to protected class status alongside disability-rather than as having merely expanded the definition of disability-could reveal the statute as having combined the most compelling elements of both traditional universalism and of the minority group approach.
By granting legal protection for nearly all physical and mental impairments, the ADAAA recognizes the critical insight of traditional universalists about the importance of broad statutory coverage in reducing socio-legal backlash. Yet unlike the traditional universalist endeavor, the ADAAA does not erase the line between the disabled and the nondisabled-either as a matter of formal law or of public perception. To the contrary, the ADAAA embraces difference by distinguishing disability from impairment and by using that distinction as the dividing line between the affirmative right to workplace accommodations and the negative right to be free from simple discrimination. In this way, the ADAAA's new universality offers the opportunity to achieve the traditional universalist objective of expanding the group of workers who view themselves as ADA stakeholders, while at the same time acknowledging the respect for difference that plays such a central role in the minority group approach. 

Unfortunately, the ADAAA's potential for charting such a new and unifying path for disability civil rights has largely gone unrecognized, in part because the primary drafters made the necessary strategic decision to frame the ADAAA as merely a restorative bill, rather than as an innovative piece of civil rights legislation. Until recently, the ADAAA's potential has also remained dormant in the courts because of the statute's non-retroactivity, which has meant that pre-ADAAA law has continued to govern many cases long after the ADAAA's effective date. But now that enactment is behind us and the development of ADAAA case law has finally begun, it is time to render more explicit the full opportunity that the ADAAA presents for advancing a disability civil rights agenda.

Eleanor Clift on Delaware Gov. Markell's Disability Employment Initiative

See this piece by Clift in the Daily Beast.  It begins:

How to bring down the nation’s high unemployment rate and create jobs for millions of people seeking work dominated last weekend’s confab of governors in Williamsburg, Va., setting the stage for an admittedly “niche initiative” targeted at employing people with disabilities. “There are a lot of people who want to be working in our country, and aren’t given a shot,” says Delaware Gov. Jack Markell, who was selected by his peers to head the National Governors Association (NGA) for the next year.

With so many able-bodied people out of work, why would Markell choose to focus on the special-needs community? It’s not politically correct to even ask such a question, but Markell has a ready answer, and he is not the least fazed by the unseemliness of the inquiry. He says hiring people with disabilities is good for the bottom line of companies that are doing it, which means it’s good for the shareholders. “It’s not just for charity,” he told The Daily Beast. His NGA initiative is dubbed “A Better Bottom Line: Employing People With Disabilities.”

He thinks a targeted initiative like this “can move the needle” when it comes to hiring. Unemployment among people with disabilities seeking work is “staggering,” he says, with some surveys finding it as high as 80 percent. He believes the reluctance to hire among employers can be overcome with outreach and education.

AAPD, ADAPT, NCIL, and NDRN to Boycott Hotels Over Pools

See this article from USA Today.  It begins:

The continuing controversy over hotel pool wheelchair lifts today will escalate into a targeted boycott of hotels across the USA.  

A national coalition of disability rights groups today will officially kick off a two-tier campaign against hotels. 

On one level, they will call for supporters to boycott all hotels in the USA that lack a fixed wheelchair lift - the kind of lift that would allow wheelchair users to easily get into a hotel pool without assistance. 

The American Association of People with Disabilities (AAPD), with 100,000 members, is one of the groups that have scheduled a call this morning to convey that message. The other boycott organizers are the National Disability Rights Network, the National Council on Independent Living and ADAPT. 

Additionally, the organizers will ask supporters in nearly every state to steer conventions, meetings and leisure travel away from specific hotels whose leaders, they say, have participated in efforts to delay regulations.

Dole and Coelho on the CRPD

Bob Dole and Tony Coelho have this piece in The Hill arguing for the ratification of the Convention on the Rights of Persons with Disabilities.  It begins:

As two individuals with disabilities who served in Congress, the passage of the Americans with Disabilities Act (ADA) in 1990 was not only a proud moment in our careers, it was also remarkable bipartisan legislation that has benefited millions of Americans. Twenty two years later, this important legislation continues to support the independence and dignity of Americans with disabilities.


During this Congress, the United States has a rare opportunity to share our disability rights commitment with other countries. On July 30, 2009, the U.S. signed the Convention on the Rights of Persons with Disabilities (CRPD). On May 17, 2012, the administration transmitted the CRPD treaty package for ratification, and a bipartisan group of Senate leaders immediately expressed their support for its ratification. By ratifying the treaty, the U.S. Senate will stand up for the equality and dignity of people with disabilities around the globe, just as Congress did for Americans in 1990.

"Segways at Disneyland? Could Happen."

So begins a published opinion written by Judge Alex Kozinski and issued today by the United States Court of Appeals for the Ninth Circuit in the case of Baughman v. Walt Disney World Company.  Ms. Baughman has muscular dystrophy and uses a Segway for mobility.  But Disney does not allow Segways at Disneyland and refused to let her bring hers in.  She sued under Title III of the ADA.  The United States District Court for the Central District of California granted summary judgment, because Ms. Baughman could have used a motorized wheelchair while she was visiting Disneyland.

In today's decision, the Ninth Circuit reversed.  It sternly rejected the argument proffered by Disney and accepted by the district court:

Read as Disney suggests, the ADA would require very few accommodations indeed. After all, a paraplegic can enter a courthouse by dragging himself up the front steps, see Tennessee v. Lane, 541 U.S. 509, 513–14 (2004), so lifts and ramps would not be “necessary” under Disney’s reading of the term. And no facility would be required to provide wheelchair-accessible doors or bathrooms, because disabled individuals could be carried in litters or on the backs of their friends. That’s not the world we live in, and we are disappointed to see such a retrograde position taken by a company whose reputation is built on service to the public.

* * * 

Facilities are not required to make any and all possible accommodations that would provide full and equal access to disabled patrons; they need only make accommodations that are reasonable. In deciding what’s reasonable, facilities may consider the costs of such accommodations, disruption of their business and safety. But they must also take into account evolving technology that might make it cheaper and easier to ameliorate the plight of the disabled. In the past, it might have been enough for a theme park to permit only non-powered wheelchairs. As technology made motorized wheelchairs and scooters cheaper, safer and more reliable, our expectations of what is reasonable changed—as Disney recognizes. But technological advances didn’t end with the powered wheelchair. As new devices become available, public accommodations must consider using or adapting them to help disabled guests have an experience more akin to that of non-disabled guests.

The modification Baughman seeks is entirely consistent with our caselaw. She claims that she has difficulty standing up from a seated position, so the Segway—which allows her to remain standing—makes it easier for her to visit Disneyland’s many attractions, concessions and facilities. She also claims that using a Segway allows her to be at eye-level with other guests and staff, rather than having everyone look down at her. Disney doesn’t dispute Baughman’s claim thatusing a motorized wheelchair or scooter would require her to stand and sit many times during her visit, or that doing so would be painful for her. Nor does Disney dispute that Baughman would feel more comfortable and dignified using a Segway. Disney simply takes the position that, even if Baughman’s access is made “uncomfortable or difficult” by its policies, any discomfort or difficulty she may suffer is too darn bad. Supplemental Br. of Appellee 5. Disney is obviously mistaken. If it can make Baughman’s experience less onerous and more akin to that enjoyed by its able-bodied patrons, it must take reasonable steps to do so. See Regal Cinemas, Inc., 339 F.3d at 1133.

The court also found support for its conclusion in the Attorney General's 2010 ADA regulations, which require places of public accommodations to allow patrons with disabilities to use Segways as mobility devices in "the vast majority of circumstances."  The court explicitly deferred to and relied on that regulation.  Consistent with that regulation, the court noted that Disney could exclude Segways if it could make an appropriate showing that they present a safety risk:

We do not hold that Disney must permit Segways at its theme parks. It might be able to exclude them if it can prove that Segways can’t be operated safely in its parks. Section 36.311(b) lists several factors to consider in determining whether a device can be used in a particular facility, including the size, weight and speed of the device; the volume of pedestrian traffic in the facility; and whether legitimate safety requirements can be established to ensure safe operation of the device. § 36.311(b)(2). Disney might, for example, permissibly require Segways to travel only as fast as motorized wheelchairs. But any safety requirements Disney imposes “must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.” 28 C.F.R. § 36.301(b).

All told, a big win for the plaintiffs and the Department of Justice (which participated as amicus, and I should note as a matter of full disclosure that I was involved in the case as it proceeded through the Department and of course was supervising the relevant part of DOJ when it issued the regs to which the court deferred). And quite an embarrassment, I would think, for Disney and its counsel.

New Senate HELP Committee Report on Employment of People with Disabilities

You can read it here.  The report states clearly that competitive, integrated employment should be the goal of federal policy in this area.  In a cover letter, Senator Harkin says that he will introduce bipartisan legislation that will:

 help young people with disabilities transition successfully from school to higher education and competitive, integrated employment that can lead to quality careers and economic security;

 help disability-owned businesses compete effectively for contracts within all levels of government and the private sector;

 create incentives for States to develop and test new models of providing income support, rewarding work and offering long-term services and supports that will better enable people with disabilities to live in the community, work and earn to their full potential, and remain employed after the onset of a disability; and

 encourage saving and asset development for people with disabilities so that they can become more economically secure and join the middle class.

EEOC Sues Disability Services Provider for Disability Discrimination

Yup.  See this press release, which begins:

Solano County disability services provider Pace Solano violated federal law when it withdrew a job offer because of the applicant’s disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today. 

After interviewing for a position to teach developmentally disabled adults at Pace Solano’s Vallejo, Calif., facility, Katrina Holly was immediately offered a job and asked to take a pre-employment physical exam. Holly successfully completed all of the tests and disclosed that she had partial paralysis in one hand to the examiner, so that he would have her complete medical information. Despite written verification from its own doctor that Holly was cleared to do the job, Pace Solano withdrew its job offer due to her hand. When she asked the company to reconsider, the response was, “Your injury makes you a liability; you don’t want to get hurt any more than you already are, do you?” 

“When they told me I wasn’t getting the job, I was sure there was some mistake,” Holly said. “I was shocked to be told that it was because of my disability. Most people are unaware of it, and it didn’t prevent me from doing any of the tasks they tested me on.”

Thanks to Chai Feldblum for passing this along.

Starline Tours Settles ADA Suit

See this article in the LA Times.  It begins:

Amy Champlin simply wanted the classic Los Angeles experience: to gawk at movie stars' homes, the Hollywood Walk of Fame and the Sunset Strip from the comfort of a tour bus. 

What she got instead was an eight-month ordeal to get a reservation, a six-hour wait for a tour that never took off and a part in a federal lawsuit. The glitch: Starline Tours couldn't provide a working wheelchair-accessible bus for Champlin and her group, who were in town for a National Ataxia Foundation meeting. 

On Monday, federal prosecutors in Los Angeles announced a consent decree with Starline, which bills itself as the largest and oldest of the Hollywood-centric tours. To settle an Americans With Disabilities Act lawsuit brought by the U.S. attorney, the company agreed to ensure that enough of its buses are wheelchair-accessible and to train its employees.

Hockenberry on Chen Guangcheng, Disability Rights, and Human Rights

See this interesting piece posted by John Hockenberry.

Two Big Senate Hearings Today

There are two big hearings related to disability law going on in the Senate today.

The Foreign Relations Committee is holding this hearing right now on the Convention on the Rights of Persons with Disabilities.  The illustrious witness list includes Senators John McCain and Tom Harkin, Judy Heumann and Eve Hill from the Obama Administration, and Richard Thornburgh, John Wodatch, Steven Groves, Michael Farris, and John Lancaster.  You can see their testimony and the video of the hearing (captioned, natch) at the link above.

In a few minutes, the Health, Education, Labor, and Pensions Committee will be holding this hearing on seclusion and restraint issues.  Witnesses include Dan Crimmins, Cyndi Pitonyak, Michael George, and Debbie Jackson.

Horrid Student-on-Student Harassment Case

Yesterday, Judge David G. Larimer of the United States District Court for the Western District of New York issued an opinion denying the defendants' motion to dismiss in Preston v. Hilton Central School District, --- F.Supp.2d ----, 2012 WL 2829452 (W.D.N.Y., July 11, 2012).  The plaintiffs brought this case on behalf of their son, A.P., who has Asperger's Syndrome, to challenge what, if the complaint is to be believed, was a vastly inadequate school response to truly horrendous harassment.  The case isn't especially legally significant, but the facts were so striking (though, alas, not unique) that I thought I would share them at length:

Plaintiffs contend that throughout the 2009–2010 school year, A.P. was routinely bullied by students in a Basic Electronics Class at Hilton High School, who harassed and mocked him on a daily basis, including calling him, “fucking retard,” “asshole,” “faggot,” and “bitch,” and subjecting him to frequent comments of a sexual nature, as well as comments disparaging his cognitive abilities, such as, “Fuck you, you autistic piece of shit.” Plaintiffs also allege that the classroom teacher, Helmer, used profanity and shared inappropriately sexual stories and anecdotes in class. Plaintiffs state that they e-mailed Bartalo concerning the harassment as early as October 10, 2009 and were assured by Bartolo that the incidents would be investigated and that Helmer would be admonished. Helmer apologized to the plaintiffs shortly thereafter, and Bartolo assured plaintiffs that A.P.'s one-on-one aide, Frey, would attend the Basic Electronics class with him for the remainder of the semester as a deterrent to further bullying. However, according to plaintiffs, Frey's presence has no affect on the students' continued sexual comments and insults toward A.P., and Frey stopped accompanying him to class after a few weeks. 

Plaintiffs allege that neither Bartalo nor Helmer took any further action to deter the harassment of A.P. or to discipline the students involved. In November 2009, plaintiffs complained about the continuing harassment to MacDonald, a special education teacher, and Cowey. Plaintiffs met with Bartalo in December 2009, and e-mailed MacDonald in January 2010, to ask why Frey was no longer attending classes with A.P. Plaintiffs also contacted Helmer to report that students were continuing to ridicule A.P. Notwithstanding these contacts, plaintiffs allege that the defendants took no meaningful action. 

After the Basic Electronics class concluded mid-way through the school year, A.P. enrolled in a Construction class. According to the amended complaint, the environment in the Construction class was even more abusive, and from the start of classes on February 1, 2010, other students in that class openly mocked A.P., calling him “gay,” “homo,” “retard,” “asshole,” “faggot,” “bitch” and “loser” during virtually every class. Once again, the District arranged for Frey to attend classes with A.P., but her presence was ineffective at curbing the harassment and as before, she stopped accompanying A.P. to classes after a few weeks. Thereafter, A.P. was allegedly subjected to constant vulgar and/or offensive language directed at his perceived mental capacity and/or sexual preference, including being asked whether he watched pornography, was gay, or masturbated, and whether he would perform oral sex on another male student “for $10.” On one occasion, A.P. was asked by a male classmate, “can I put my dick in your ass?” Students in the class threw small objects such as pencils and small pieces of wood at A.P., and drew sexually explicit pictures on the blackboard. Plaintiffs allege that A.P. complained to the Construction class teacher, Loe, who was present during much of the harassment, but that Loe took no action except to have the offensive drawings erased, and did not discipline or rebuke A.P.'s tormentors. Plaintiffs allege that they complained to Loe, MacDonald, Cowey, and Bartalo, each of whom cautioned that “teens will be teens” but promised they would address the problem, yet did nothing to stop or punish the ongoing harassment. Plaintiffs contend that near the end of the school year, the daily bullying of A.P. was being perpetrated by approximately half of the students in Loe's Construction class. 

On May 6, 2010, the students allegedly surrounded A.P. in the classroom and openly ridiculed a model home project he had completed, but Loe, who was present, did not intervene. Later, a student falsely accused A.P. of smashing that student's model home project. A.P.'s parents alerted MacDonald about the bullying conduct of other students toward A.P., and informed him that as a result, A.P. was having increasing difficulty completing assignments, and was developing serious emotional issues. The following day, A.P. found himself emotionally and mentally unable to complete the school day, and disclosed to his parents several occasions of harassment that he had not previously shared. 

Plaintiffs thereafter met with Bartalo and MacDonald, and learned that AP's grades had dropped by 40% in two of his classes, which plaintiffs attributed to the bullying and harassment of A.P. A.P.'s parents agreed to send A.P. back to school for the remainder of the year. Two return attempts were made, but proved unsuccessful. Plaintiff allege that A.P. continued to be sexually harassed and insulted by other male students each time he attempted to return to the classroom, to the point where he was unable to function emotionally or academically. In an attempt to ensure that A.P. received credit for his course work, plaintiffs located a qualified individual who was able to administer A.P.'s final exams to him outside and independent from the school. A.P. twice attempted to take the exams, but allegedly experienced emotional breakdowns that made him unable to complete them. 

Plaintiffs attempted to have A.P. accepted into the Communications and Social Skills program for children with Asperger's syndrome, but found that if A.P. was accepted to the program, he could not enroll until January 2011, and would be required to attend Hilton Central High School in the interim, an option plaintiffs determined to be a non-viable, given A.P.'s refusal and apparent psychological inability to return. 

The plaintiffs sued under, among other statutes, Title II of the ADA and Section 504 of the Rehabilitation Act.  The school district moved to dismiss those claims on the ground that the harassment was not disability based.  The district court quite properly concluded that the allegations in the complaint were sufficient to make out a case that the students were motivated by A.P.'s disability in harassing him, and that the school district was deliberately indifferent to the harassment.

Francis on Ouelette on Bioethics and Disability

It's apparently bioethics day here at the blog.  Leslie Francis has a book review just out in the Journal of Legal Medicine on Alicia Ouelette's book, Bioethics and Disability: Toward a Disability-Conscious Bioethics.  The review appears at 33 J. Legal Med. 285 (2012).  The review begins:

Alicia Ouellette's Bioethics and Disability: Toward a Disability-Conscious Bioethics is an informative account of legal and ethical tensions between the field of bioethics and some aspects of disability advocacy. At the book's core are case studies to illustrate how paradigms of analysis in bioethics may lie at cross-purposes with disability rights and to suggest theoretical and practical means to reconciliation. Ouellette's admirable goal in the volume is to build detente and trust between the two perspectives. Her practical suggestions about how this might be accomplished are helpful contributions to this difficult task, especially her views about the implementation of procedural protections. I am less convinced by her strategies for reconciliation at the theoretical level, for reasons detailed at the conclusion of this review. 

Ouellette contends that people with disabilities have been medicalized and marginalized by bioethics practice. Although perhaps overstating the connection between bioethics and clinical medicine, she provides powerful descriptions of how some bioethics commentary and consultation have been infected by misinformation and disability bias. She explains the importance to bioethics of listening to the voices of people with disabilities, unearthing prejudice, and pursuing inclusive justice. To put the call of the book in Ouellette's own words: “A disability-conscious bioethics will incorporate important but overlooked knowledge, evince sensitivity to the values, concerns, and interests of members of the disability community, acknowledge the biases and alliances that affect various parties' perspectives, and focus on principles of importance to disability work that are sometimes overlooked in bioethics -- nondiscrimination, full and effective participation and inclusion of people with disabilities, respect for difference, and accessibility.” [345] So far, so very good. 

My concerns about her proposals for theoretical reconciliation between bioethics and disability advocacy rest in Ouellette's characterization of the two approaches. “Bioethics,” she writes, “promotes informed individual choice in medical care, even when the choice leads to the death of a patient.” “Disability experts,” in contrast, “promote the protection of people with disabilities as a group, even when the community interest might conflict with the choice of an individual member.” [13] I have doubts both about the somewhat simplistic individualism attributed to bioethics and about the group-rights consciousness and approach attributed to disability advocacy. Moreover, a deep methodological divide is implicitly if not explicitly revealed in the book: between what might be characterized as philosophical analysis and an approach that takes emotional responses and relational commitments as equally important not only to respect for others but also to judgments about the appropriateness of arguments. It is not quite right to characterize this as the difference between philosophy and advocacy. Nor is it quite right to see this only in epistemological terms, as about the role of non-cognitive forms of knowing. Instead, it seems to me to be a normative commitment, to the view that certain forms of argumentation must yield in light of the pain they may cause or their risks for being used in discriminatory ways.

Peace and Coleman and Drake on "Being Pushed to Choose Death"

Stephen Drake from Not Dead Yet blogs here about an online essay he and his colleague Diane Coleman recently posted on the Hastings Center's Bioethics Forum.  The essay responds to an essay authored by Bill Peace and recently published in the Hastings Center Report.  Both essays are well worth the read.  Here is the abstract of Peace's essay:

It is 2 a.m. I am very sick. I am not sure how long I have been hospitalized. The last two or three days have been a blur, a parade of procedures and people. I had a bloody debridement for a severe, large, and grossly infected stage four wound-the first wound I have had since I was paralyzed in 1978. I know the next six months or longer are going to be exceedingly difficult. I will be bedbound for months, dependent upon others for the first time in my adult life. As these thoughts are coursing through my mind, a physician I have never met and the registered nurse on duty appear at my door. As they put on their gowns I am weary but hopeful. Surely there is something that can be done to stop the vomiting. The physician examines me with the nurse's help. Like many other hospitalists that have examined me, he is coldly efficient. At some point, he asks the nurse to get a new medication.

What transpired after the nurse exited the room has haunted me. Paralyzed me with fear. The hospitalist asked me if I understood the gravity of my condition. He grimly told me I would be bedbound for at least six months and most likely a year or more. That there was a good chance the wound would never heal. If this happened, I would never sit in my wheelchair. I would never be able to work again. Not close to done, he told me I was looking at a life of complete and utter dependence. He went on to tell me I was on powerful antibiotics that could cause significant organ damage. He informed me I had the right to forego any medication, including the lifesaving antibiotics. If I chose not to continue with the current therapy, I could be made very comfortable. I would feel no pain or discomfort at all. Although not explicitly stated, the message was loud and clear. I can help you die peacefully.

And here are the first two paragraphs of Coleman and Drake's essay:

It's difficult for us to believe that Bill Peace's story would really surprise anyone entrenched in bioethics and “end of life” issues. Anyone paying close attention to various news stories and occasional journal articles would be pretty sure there are more stories – some arguably worse – just waiting to be told. For a story, of course, you need a survivor who is able and willing to tell it. And of course, the storyteller needs a venue – we owe Bill Peace and The Hastings Center our thanks for making those elements come together. 

The most surprising thing about Bill Peace's article concerning his experience with the hospitalist is that it appeared in a bioethics journal at all. The second surprising aspect of his experience is that we're having a publicly accessible discussion about it. The many ways that medical professionals push disabled people toward death are absent from journals – or masked in jargon and euphemisms. Subjects like Bill Peace's story are certainly absent in venues in which bioethicists engage the public – as though there are discussions that the professional class would prefer we (the public) not be a part of. Recently, however, the wall of silence shows signs of cracking.

More on Amusement Parks and People with Amputations

Following up on this post from earlier today, I came across this article from earlier this week about Disneyland Paris.  It begins:

Limb Difference charities in Europe are calling on Disneyland and other theme park operators to clarify their policies on safety and discrimination after several young people with limb disabilities were banned from rides.

EDRIC (European Dysmelia Reference Information Centre), which operates DysNet, a globally-focused limb-difference online network, has been contacted by two of its member charities, Reach in the UK and Assedea in France, after several disabled youngsters were prevented from riding roller-coasters because they had missing limbs.

In one case, a young girl, twice refused entry to a ride, was permitted to go on after she and her parents visited customer services to be registered as a disabled passenger.

Mollica on Tenth Circuit on Accommodations for Deaf Employee

Navigate on over to Paul Mollica's blog for a description of a quite bad, split decision by the Tenth Circuit in a case in which a deaf photographer unsuccessfully sued her former employer for denial of accommodation and for retaliation.  On reading the opinions, I am quite persuaded by Judge Holloway's dissent, which begins:

Ms. Jessica Chrysler was hired as a photographer or “performer” at the Littleton, Colorado studio of Defendant-Appellee The Picture People, Inc. (the Employer). The manager who hired her had full knowledge of her deafness and the means by which she can communicate, and he also had the experience to fully understand the requirements of the job.

When Ms. Chrysler was given an opportunity to conduct a photo session, her performance was given high praise by the customers. She conducted a number of other sessions as well, and there is no evidence that these sessions were less than successful in any way. Nevertheless, acting on what a jury could well determine was nothing more than a stereotyped view of the limitations of the deaf, the Employer first relegated Ms. Chrysler to work only in the lab, then eliminated all of her hours, and finally, after months of hollow promises that she would be given some opportunities, it fired her. Not only that, but the Employer explicitly chastised Ms. Chrysler for having the temerity to complain about her treatment.

The EEOC brought this case against the Employer alleging (1) that the Employer had discriminated against Ms. Chrysler because of her deafness; and (2) that the Employer had retaliated against Ms. Chrysler “for her requests for accommodation and complaints of discrimination.” Despite substantial evidence that Ms. Chrysler had performed well, the district court granted summary judgment for the Employer, holding that Ms. Chrysler was unable to perform the “essential functions” of the job and thus was not a “qualified individual” entitled to the protection of the ADA. Thus, the judge concluded that she could not do that which she had in fact done. Moreover, although faced with the fact that Ms. Chrysler had been disciplined explicitly for invoking her rights, the district court nevertheless concluded that the EEOC had not produced enough evidence to defeat summary judgment on the retaliation claim. 

The opinion affirms these illogical holdings. Like the district court, the opinion fails to apply the proper standard in evaluating the evidence. When the evidence is taken in the proper light, I am convinced that the judgment must be reversed. I therefore respectfully dissent.

Also, what's up with this weird corporate-speak in which a photographer is called a "performer"?

Universal Studios Sued for Barring Patrons with Amputations from Roller Coaster

See this article in the LA Times, which begins:

Two men who say they were barred from riding a roller coaster at Universal Studios Hollywood because they are missing limbs have sued the theme park. 

Angel Castelan, whose forearms were amputated after an electrical accident as a child, and Marvin Huezo, whose legs were amputated after a car accident, say they were kept off Revenge of the Mummy: The Ride, an indoor roller coaster. 

The suit, filed last month in U.S. District Court in Los Angeles, contends the men were kept off the ride in violation of the Americans with Disabilities Act.

A personal note about this: About five years ago, I went to Universal Studios with my son and about a dozen other kids with various amputations (all of whom were in LA to serve as extras in a scene that was slated to appear, but ended up not appearing, in this movie.  I didn't see any safety concerns.

Mississippi Sued Over IDEA Violations in Jackson

See this story from EdWeek's valuable On Special Education blog.  The piece begins:

Some 18 months after the Mississippi Department of Education found that Jackson public schools were violating federal special education law, the department has failed to enforce its own decision, according to a lawsuit filed today in federal district court. 

The Southern Poverty Law Center, Disability Rights Mississippi, and the Southern Disability Law Center sued the Mississippi Department of Education for failing to ensure that students with disabilities in the 30,000-student Jackson public school system get the education and services federal law requires. In a Nov. 2010 letter, the department listed a number of violations by the district, which enrolls about 3,000 students with disabilities. The district had to start working on the violations right away, and had a year to address everything. 

So far, the advocacy groups say, nothing has changed in Jackson.

Judge Slams Defense Counsel Again for Dilatory Tactics in ADA Public Accommodations Case

A couple of weeks ago, I wrote about an order in Lema v. Comfort Inn, Merced and Lema v. Courtyard Marriott, Merced.  In these cases, both pending in the United States District Court for the Eastern District of California, Magistrate Judge Sandra Snyder issued an order on June 20 harshly criticizing defense counsel for filing dilatory and frivolous motions.  She threatened Rule 11 sanctions if defense counsel did it again.  Last Thursday, she issued a new round of orders.  On July 2, the defendants moved to dismiss for lack of standing and failure to state a claim.  Three days later, Judge Snyder denied the motions, finding them meritless and frivolous.  As a consequence, she issued an order directing the filing of an answer by July 13 and any dispositive motions by August 2.  And she prohibited the defendants from filing any further motions before those deadlines, without first obtaining leave from the court:

The Court surmises that Defendants brought this action in the absence of good faith, seeking to further the delay resolution of this matter despite their representations in the summer of 2011 that permitting them to retain their current attorney would not result in further delay. The Court has repeatedly noted Defendants' lack of good faith as they and their attorneys have sought to exploit rules of procedure as a means of postponing just resolution of Plaintiff's claims while imposing unnecessary burdens on this overburdened Court. The test for maliciousness is subjective, requiring the Court to “determine the ... good faith of the applicant.” Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 46, 35 S.Ct. 236, 59 L.Ed. 457 (1915). 

The impropriety of this motion would have been readily apparent to Defendants and their attorney had they performed the most perfunctory examination of applicable law. This Court has repeatedly warned Defendants and their attorney regarding their employment of sharp legal tactics intended solely to harass Plaintiff and delay resolution of this matter. No further delay will be tolerated. Accordingly, the Court will strike any motion brought by Plaintiff without leave of Court prior to their filing of an answer and any dispositive motion(s).

Settlement Reached in Burger King Accessibility Class Action

Friend of the blog Amy Robertson passes along word that she and her cocounsel have reached a settlement in their class action challenging the inaccessibility of 86 California Burger King stores to people who use scooters or wheelchairs.  The settlement provides significant injunctive relief to ensure that the stores will be and remain accessible, as well as $19 million in monetary relief.  The notice to class members is here, and the settlement itself is here.  Looks like a really strong settlement.

Do the Illinois Prisons Really Have a Minyan Requirement for Allowing Prisoners with Disabilities to Exercise?

That would be ridiculous if true.  From an opinion issued by the Seventh Circuit last week (written by Judge Richard Posner):

The plaintiff alleges—as yet without contradiction, because the district judge dismissed the suit before the defendants filed anything—that the defendants won’t allow a disabled inmate to engage in outdoor recreation unless at least nine other disabled inmates want to do so as well and that as a result of this quorum requirement (cf. Garza v. Miller, 688 F.2d 480, 483, 486-87 (7th Cir. 1982)) he went seven consecutive weeks without any such recreation.

The quorum rule seems arbitrary, especially since recreation, including aerobic exercises that cannot be performed in a cell (the plaintiff is in segregation, meaning he’s confined to his one-person cell 23 hours a day), is particularly important to the health of a person confined to a wheelchair. E.g., James H. Rimmer, “Exercise/Fitness: Resistance Training for Persons with Physical Disabilities” (National Center on Physical Activity and Disability, Dec. 21, 2005), www.ncpad.org/exercise/fact_sheet.php?sheet=107 (visited June 26, 2012). “Aerobic training promotes weight loss, increases energy and improves cardiovascular conditioning . . . . Activities that can be performed are wheelchair basketball, wheelchair volleyball and wheelchair tennis. A recommended aerobic sport can be wheelchair racing. The benefits of this activity are that you can perform the race at your own pace. Wheelchair racing can be done by pushing your wheelchair on a running track or in a neighborhood. Start out each workout with light intensity to warm up the muscles. As you feel more comfortable add more intensity to the workout by racing at a faster pace.” Matthew Potak, “Exercise Routine for Disabled People Wheelchairs,” http://voices.yahoo.com/exercise-routine-disabled-people-8467447.html (visited June 26, 2012); see also Jae Ireland, Livestrong.com, “Exercises for People in Wheelchairs,” Apr. 29, 2012, www.livestrong.com/article/108802-exercises-people-wheelchairs/ (visited June 26, 2012). Whether seven weeks without such recreation can result in serious harm to someone in the plaintiff’s condition is a separate question not yet addressed in the litigation.

You've also got to love Judge Posner citing Livestrong.com!

Tenth Circuit Holds City Did Not Violate ADA or FHA by Denying Zoning Variance to Residential Treatment Center

Last week, the United States Court of Appeals for the Tenth Circuit issued an opinion in Cinnamon Hills Youth Crisis Center, Inc. v. Saint George City.  Cinnamon Hills had run a residential treatment facility in St. George, Utah, for some time.  It sought to create a new residential step-down program that would take up the top floor of a motel that the organization owned.  The city refused, however, to waive two provisions of its zoning code:  one that prohibited the occupancy of a motel room by an individual for more than 29 days, and another that prohibited residential uses in certain commercial zones.  Cinnamon Hills sued in the United States District Court for the District of Utah, alleging violations of the ADA, the Rehabilitation Act, and the Fair Housing Act.  The district court granted summary judgment to the city.

The Tenth Circuit affirmed.  The court concluded that the zoning provisions at issue neither were intentionally discriminatory nor had been shown to have a disparate impact on people with disabilities.  The court also concluded that waiving the 29-day and no-residential-uses-in-commercial-zones rule would not be a reasonable accommodation.  The relevant discussion from the court's opinion:

Of course, in some sense all reasonable accommodations treat the disabled not just equally but preferentially. U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 397-98 (2002). Think of the blind woman who obtains an exemption from a “no pets” policy for her seeing eye dog, or the paraplegic granted special permission to live on a first floor apartment because he cannot climb the stairs. But without an accommodation, those individuals cannot take advantage of the opportunity (available to those without disabilities) to live in those housing facilities. And they cannot because of conditions created by their disabilities. These examples show that under the FHA it is sometimes necessary to dispense with formal equality of treatment in order to advance a more substantial equality of opportunity. And that is precisely the point of the reasonable accommodation mandate: to require changes in otherwise neutral policies that preclude the disabled from obtaining “the same . . . opportunities that those without disabilities automatically enjoy.” Id. (second emphasis added).

But while the FHA requires accommodations necessary to ensure the disabled receive the same housing opportunities as everybody else, it does not require more or better opportunities. The law requires accommodations overcoming barriers, imposed by the disability, that prevent the disabled from obtaining a housing opportunity others can access. But when there is no comparable housing opportunity for non-disabled people, the failure to create an opportunity for disabled people cannot be called necessary to achieve equality of opportunity in any sense. So, for example, a city need not allow the construction of a group home for the disabled in a commercial area where nobody, disabled or otherwise, is allowed to live. See Bryant Woods Inn, 124 F.3d at 604; Wisconsin Cmty. Serv., Inc. v. City of Milwaukee, 465 F.3d 737, 752 (7th Cir. 2006) (en banc); Forest City Daly Hous., Inc. v. Town of North Hempstead, 175 F.3d 144, 152 (2d Cir. 1999).

And recognizing this necessarily marks the end of the road for Cinnamon Hills’s reasonable accommodation request. As we have already seen, no one, disabled or otherwise, is generally allowed to stay in a motel for more than 29 days or to reside in a C-3 commercial zone. To be sure, and as we have also seen, the city provides some limited exceptions to these rules (for law enforcement personnel and the like). But there is no evidence that the disabled, because of their disabilities, are any less able to take advantage of these exceptions than the non-disabled. Instead, the evidence shows that in seeking to occupy the top floor of a motel in a commercial zone, Cinnamon Hills is seeking an opportunity that isn’t available to others rather than one that is. And that’s a result the statute does not compel.

As in a lot of ADA/FHA zoning cases, the court here essentially collapses the reasonable accommodation inquiry into an inquiry into whether there is intentional discrimination.  There is an interesting law review note to be written comparing the analysis in zoning cases brought under the ADA and Fair Housing Act to that in zoning cases brought by religious groups under the First Amendment or RLUIPA.

Concannon on Mental Disability and the ADAAA

Just out: James Concannon, Mind Matters: Mental Disability and the History and Future of the Americans with Disabilities Act, 36 Law & Psychol. Rev. 89 (2012).  The abstract:

This Article examines the history of protections afforded individuals alleging mental disabilities under the Americans with Disabilities Act of 1990, and the protections such individuals will receive under the ADA going forward in light of the ADA Amendments Act of 2008, which substantially amended the ADA. The Article specifically focuses on Title I of the ADA, which governs discrimination in employment against individuals with disabilities. While the Article concludes that it is reasonable to suspect that coverage for potential Title I ADA plaintiffs alleging mental disabilities will be broader post-Amendments Act, it also finds that it is unclear whether individuals with such disabilities will experience the same increase in coverage as those alleging physical disabilities will likely enjoy. This potential divergence stems from the lack of amendment of particular provisions of the Act that have disproportionately disqualified individuals with mental impairments from coverage, and from the continuing stigma attached to mental disabilities.

Is the LA City Council Poised to Violate the ADA and the Fair Housing Act?

See this commentary on the Huffington Post.  An excerpt:

So why would the L.A. City Council pass a law that would shut down places like Keaveney House? The proposed Community Care Facilities Ordinance (CCFO) would do just that, and much more. In a misguided attempt to address nuisance "group homes," this dangerous ordinance will make it illegal to have unrelated people share a home in any residential neighborhood anywhere in L.A. 

Sound like overkill? It is. It's also discrimination -- against veterans in recovery, people with disabilities, and seniors on fixed incomes who live with roommates. The proposed ordinance violates fair housing law, the Americans With Disabilities Act, and the state's constitution right to privacy. If passed, disability rights advocates plan to sue, costing the city millions of dollars to battle a lawsuit, at a time when city workers are being laid off in droves. 

The proposed ordinance would shut down well-established, responsible owners of shared housing like New Directions, because this type of housing is not licensed. One of New Directions' houses does have a license, but only because it provides more intensive drug & alcohol treatment, so it is licensed by the California Department of Alcohol & Drug Programs. But the other houses are for veterans further along in their recovery, and no license exists for this type of housing with services, known as "supportive housing."

(The author of the commentary is the CEO of New Directions, just for full disclosure.)

DOJ Finds Oregon's Reliance on Sheltered Workshops Violates Olmstead

The big news while I was in hiding:  The U.S. Department of Justice issued a letter finding that the State of Oregon "is failing to provide employment and vocational services to persons with intellectual and developmental disabilities in the most integrated setting appropriate to their needs, in violation of the ADA," because the state "plans, structures, and administers its system of providing employment and vocational services in a manner that delivers such services primarily in segregated sheltered workshops, rather than in integrated community employment."

The Oregonian explains what it all means, in an article that begins:

The United States Department of Justice is warning Oregon to help people with intellectual or physical disabilities find jobs in the community or the federal government will go to court and force the state to do it.

Following a nine-month investigation, the Justice Department sent a 20-page letter to the Oregon attorney general late last week outlining its problems with state programs offering employment and vocational services for disabled workers.

Bottom line: Too many in Oregon are forced to work sub-minimum-wage jobs doing rote tasks in what are called "sheltered workshops."

As readers of this blog know, Oregon's heavy reliance on sheltered workshops is the subject of ongoing private Olmstead litigation, in which the Department of Justice had already filed a brief.

Goren on the Second Circuit's NYC Taxi Decision

William Goren has this post on the Second Circuit's recent decision in the New York City taxi case.  The key takeaway:

What does this all mean? It means that for purposes of the Americans with Disabilities Act, there is a big difference between the regulations issued by a public entity and the people or entities subject to those regulations. Unless those regulations mandate discrimination, the Americans with Disabilities Act is not going to allow a title II claim to proceed.

Morning Edition on Pool Lifts

Returning from my own little Fourth of July recess . . .

Yesterday NPR's Morning Edition had this story on the ADA pool lift regulations, now scheduled to go into effect in January.  It's a pretty good treatment.