E.D. Va. Approves Settlement of DOJ-Virginia Olmstead Case

More Olmstead news for the day:  Judge John A. Gibney of the United States District Court for the Eastern District of Virginia just issued an order approving the settlement in United States v. Virginia, the Olmstead case involving individuals with intellectual and/or developmental disabilities.  (I've blogged about the settlement a bunch of times before.  See also this, this, this, this, this, this, and this.)  More congratulations to my old colleagues!

DOJ Reaches Major Olmstead Agreement with North Carolina

See this press release, which outlines the basic contours of the settlement.  It begins:

The Justice Department announced today that it has entered into an agreement with the state of North Carolina to ensure the state is in compliance with the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The agreement will transform the state’s system for serving people with mental illness. Under the settlement agreement, over the next eight years, North Carolina’s system will expand community-based services and supported housing that promote inclusion and independence and enable people with mental illness to participate fully in community life.

Under the ADA, as interpreted by the Supreme Court’s landmark decision in Olmstead v. L.C., people with disabilities have the right to receive services in the most integrated settings appropriate to their needs. The settlement follows an investigation by the Department of North Carolina’s mental health service system that began in 2010. Since the department’s letter of findings was issued one year ago, in July 2011, the state has worked cooperatively with the department to negotiate an agreement..

“As the Supreme Court noted over a decade ago, the unnecessary segregation of people with disabilities is based on the unsupported assumption that they are unworthy of participating in community life,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division. “This agreement will enable North Carolinians with mental illness to live in community-based settings, enriching their lives and the lives of their neighbors, and recognizing their worth and dignity. I commend Governor Bev Perdue and North Carolina’s Department of Health and Human Services Secretary Al Delia for their leadership, which played a crucial role in making this comprehensive agreement a reality.”

Over the next eight years, North Carolina will provide integrated supported housing to 3,000 people, expand Assertive Community Treatment teams to serve 5,000 individuals, and provide a range of crisis services. The agreement will also expand integrated employment opportunities for people with mental illness by providing supported employment services to 2,500 individuals. These services will allow the state to serve people with mental illness effectively in their communities while avoiding costly institutional settings.

The settlement is here.  DOJ issued its findings letter in this case in my last week at the Department in 2011; congratulations to my former colleagues for bringing home such a big settlement.

Read This IDEA Opinion From The Fifth Circuit

United States Circuit Judge Catharina Haynes has a terrific, must-read partial concurrence/partial dissent in an unpublished opinion her court issued last week in S.H. v. Plano Independent School District.  The case is an IDEA case that presented a very technical issue.  Basically, the parents succeeded in administrative proceedings in obtaining reimbursement for a private school placement.  But the school district had made a settlement offer before the administrative hearing.  That settlement would have awarded the parents $15,500 in reimbursement, but the parents rejected it.  The administrative hearing officer awarded $20,475 in reimbursement.  The district court, however, reduced that award to $14,625.  And because the parents ultimately recovered less than the settlement offer they had rejected, the district court denied them attorneys' fees.

A few provisions of the IDEA are relevant to the attorneys' fees question.  Title 20 U.S.C. 1415(i)(3)(D) prohibits the award of attorneys' fees "for services performed subsequent to the time of a written offer of settlement" if the relief the parents finally obtain is not as favorable as what they would have received had they accepted the offer.  But 20 U.S.C. 1414(i)(3)(E) makes an exception to that fee bar in cases in which the parent was the prevailing party (as the parents were here) and "was substantially justified in rejecting the settlement offer."  All three judges concluded that the parents had not shown that they were substantially justified in rejecting the school district's settlement offer here.  Thus, all three judges held that the district court appropriately denied attorneys' fees for work done after the offer of settlement.

As for work done before the settlement offer, the judges divided.  The majority (Judges Carolyn Dineen King and Edward Prado) concluded that the parents' rejection of the settlement offer unreasonably protracted the final resolution of the case, and thus was a basis for denying even pre-offer fees.  See 20 U.S.C. 1415(i)(3)(F)(i) (court shall reduce attorneys' fees "accordingly" when "the parent, or the parent’s attorney, during the course of the action or proceeding, unreasonably protracted the final resolution of the controversy").  Judge Haynes argued that this was essentially double counting:

Certainly, rejecting a reasonable settlement offer is one factor that can be considered in analyzing unreasonable protraction.  But—other than in a * * * situation where the school district offers everything asked for and then some—it is not the sole factor.  * * *.  Instead, the district court should analyze unreasonable protraction in the context of the overall conduct of the litigation, including the parents' good faith, the reasonableness of the legal position taken and arguments made, participation in efforts to resolve the litigation, the issues prevailed upon, and the type and amount of relief ultimately obtained. No such analysis was conducted here.

Judge Haynes also argued that the majority improperly put the burden on the parents to show that they did not unreasonably protract the proceedings, and that even if the parents' pre-offer fees should be reduced under 1415(i)(3)(F)(i), there was no basis for denying them fees entirely.

I think Judge Haynes has the better of this argument.  But what makes this opinion a must-read is Judge Haynes's appreciation of the importance of attorneys' fees in ensuring that students with disabilities and their parents can actually realize the rights guaranteed by the IDEA.  Here are key excerpts (I've omitted a bunch of footnotes):

Faced with the challenges of raising a child with a disability, parents often depend on public educational authorities for assistance in “ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for” their child. 20 U.S.C. § 1400(c)(1). Congress intended for the IDEA to promote these outcomes, id. § 1400(d) (listing the IDEA’s purposes), and added the attorneys’ fees and related costs provisions now found in 20 U.S.C. § 1415 to increase parents’ participation in and access to the IDEA’s remedial scheme. See Handicapped Children’s Protection Act of 1986, Pub. L. No. 99-372, 100 Stat. 796 (1986) (enacting, inter alia, attorneys’ fees award provision), abrogating Smith v. Robinson, 468 U.S. 992 (1984) (holding that, because the IDEA’s predecessor statute lacked an attorneys’ fees provision, such awards could not be obtained by enforcing education-related rights through other civil rights statutes that permitted awards); cf. R. Shep Melnick, Taking Remedies Seriously: Can Courts Control Public Schools?, in From Schoolhouse to Courthouse 40 (Joshua M. Dunn & Martin R. West eds., 2009) (“Schoolhouse”) (observing that the “combination of attorneys’ fees and monetary damages significantly increased incentives for private parties to file suits” under federal civil rights statutes, fostered the development of “a private bar . . . to litigate [such] cases,” and “had the effect not just of increasing the number of cases filed but also of augmenting the political support for this enforcement mechanism”). 

As many parents unfortunately discover, the quest to procure a free appropriate public education for their child is anything but free, and it certainly is not easy. The IDEA’s complex procedural requirements and opaque, jargon- laden provisions easily could discourage even the most dedicated parents from “going it alone.” Although the IDEA provides parents a right to use attorneys or other specialized individuals in resolving special education disputes, 20 U.S.C. § 1415(h)(1), it is difficult to find—let alone afford—attorneys to take these cases, especially in those areas where such help is most needed. See Lynn M. Daggett, Special Education Attorney’s Fees, 8 U.C. Davis J. of Juvenile L. & Pol’y 1, 24-29 (2004) (noting disparity in number of IDEA disputes brought in different states, in urban vs. rural districts, and by socioeconomic status). 

Some of the children who qualify for services under the IDEA come from underprivileged families lacking in resources to pursue a complex process. See, e.g., Kelly D. Thomason, Note, The Costs of a “Free” Education, 57 Duke L.J. 457, 483-84 (2007). It nonetheless falls to such families to prove the inadequacy of a school district’s actions and to bear the cost of the experts inevitably required to make such a case. See Arlington Cent. Sch. Dist. v. Murphy, 548 U.S. 291, 293-94 (2006) (expert costs); Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 51 (2005) (IEP burden). On top of all this, although Congress intended for the IDEA to provide relatively quick resolution to special education disputes, this more than six year-old case exemplifies the tragic reality that such controversies have a tendency to mature more slowly than the children at issue. See, e.g., Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 484 (7th Cir. 2012) (ending eleven-year-old dispute over school district’s alleged systemic violations of IDEA’s “child-find” provision by decertifying class).

* * *

However inadvertently, the attorneys’ fee ruling here only further steepens an already-uphill climb parents face in this area by turning every settlement offer into a game of high-stakes poker between school districts and the parents of special-needs children. See Thomason, supra, at 484-85 (discussing the rarity of IDEA due process hearings and the minute amount of special education funds (0.3%) actually spent on IDEA disputes). In addition to cash, experts, and perseverance, parents with legitimate arguments for more benefits for their special-needs child apparently must also arm themselves with a crystal ball accurate within mere percentage points of what a “final” adjudicator might actually award. If they are wrong, either the lawyer does not get paid or the parents get saddled with a bill they likely cannot afford—providing disincentives for lawyers to take these types of cases and for parents to exercise their IDEA-given right to disagree with the school district’s provision of services in the future.

National Council on Disability Calls for Phaseout of Subminimum Wage

Big news.  See this report that the NCD transmitted to the President today.  Here are the report's key findings, as summarized in the introduction:

Sheltered workshops are ineffective at transitioning individuals with disabilities to integrated employment. According to the 2001 investigation by the Government Accountability Office into the 14(c) program, only approximately 5% of sheltered workshops employees left to take a job in the community.[ii] 

According to the Centers for Medicare and Medicaid Services, Medicaid-financed pre-vocational services to sheltered workshops are, “not an end point, but a time limited (although no specific limit is given) service for the purpose of helping someone obtain competitive employment.”[iii] 

Individuals in supported employment who had previously been served in sheltered workshop settings do not show a higher rate of employment as compared to those who had gone straight to supported employment without ever being in a sheltered workshop.[iv] However, research indicates that those who had previously been in sheltered workshops had higher support costs and lower wages than comparable individuals who had never been in sheltered workshop settings.[v] 

The 14(c) sub-minimum wage program is utilized primarily by non-profit or state-operated social services providers – specifically, sheltered workshops – rather than private, for-profit businesses. According to the GAO, 95% of all workers with disabilities being paid less than minimum wage under the 14(c) program were employed by sheltered workshops.[vi] 

Research indicates that employees receiving supported employment services generate lower cumulative costs than employees receiving sheltered workshop services and that whereas the cost-trend of supported employees shifts downward over time, the opposite is the case for individuals receiving sheltered workshop services.[vii]

NJ Senate Passes Bill Prohibiting Disability Discrimination in Transplants

See this article, which begins:

Legislation that would prohibit discrimination against a potential organ transplant recipient on the basis of a mental or physical disability cleared the full Senate Monday. 

“People with developmental disabilities should not be treated as second-class citizens,” said state Senate President Steve Sweeney. “Their disabilities do not make them any less human or worthy of respect and common decency. They should be afforded the same rights as anyone would want when entering a hospital.” 

The bill, S-1456, would prohibit discrimination against a possible organ transplant recipient based solely on physical or mental disability. The bill, however, would permit a mental or physical disability to be taken into account by a physician or surgeon to the extent that disability may medically impact the transplant. The legislation would also provide for an expedited court process for anyone who feels that its provisions are not being upheld.

Wal-Mart Settles EEOC ADA Suit for $50K

See this EEOC press release, which begins:

Wal-Mart Stores, Inc. and Wal-Mart Stores East, L.P. will pay $50,000 in back pay and damages in settlement of a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC had charged that a Carlsbad, N.M., Walmart store unlawfully fired a part-time sales clerk because of her cerebral palsy.

The EEOC had charged in its lawsuit, Case No. 2:11-CV-00834, filed in the U.S. District Court for the District of New Mexico, that Wal-Mart fired Marcia Arney rather than attempting to return her to her job following a medical leave related to her cerebral palsy. When Arney, a 22-year Wal-Mart employee, showed the store manager a note from her doctor requesting an accommodation involving periodic breaks off her feet, he refused to return her to her job, and instead demanded that she obtain a medical release with no restrictions. The EEOC alleges that the medical restriction could have easily been accommodated by the giant retailer. In fact, had the employer inquired further, it would have learned that her need for accommodation was temporary.

Such alleged conduct violates the Americans with Disabilities Act of 1990 (ADA), which prohibits disability discrimination in the workplace. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. 

Under the consent decree settling the suit, Wal-Mart will conduct annual live ADA training of management officials at its Carlsbad store. It will also post a notice on its agreement with the EEOC so that employees are aware of procedures for reporting disability discrimination. The company has committed to not requiring disabled workers to produce a full release from their doctor upon returning from a medical leave. Further, the company will engage in an interactive process with disabled employees to find a reasonable accommodation to assist them in performing their jobs. Future charges and lawsuits alleging disability discrimination will be reported to the EEOC for the duration of the decree, as well as requests by employees for accommodation of a disability.

Ravitch on Charter Schools and Kids with Disabilities

See this post from Diane Ravitch's blog.  An excerpt:

We have seen this story again and again. A lawsuit against the charters in New Orleans and the District of Columbia filed on behalf of children with disabilities. A charter school in Minneapolis that literally pushed out 40 children with special needs, part of a pattern in which the nation’s largest charter chain–the Gulen-affiliated schools–keep their test scores high by excluding students with disabilities. Study after study showing that charters take fewer children with disabilities. Even a federal study by the GAO documenting that charter schools have a smaller proportion of children with special needs, to which the relevant federal official responded with a yawn and a promise to look into it someday. 

And now the AP has documented the widespread practice, in which charters take fewer students with special needs, take those with the mildest disabilities, and harm the public schools that are expected to educate a disproportionate share of the neediest, most expensive to educate children.

Disability Advocates Question Accessibility of New Metro SmarTrip Dispensers

See this article by that title in the Washington Post.  It begins:

Advocates for people with disabilities say Metro’s plans to make SmarTrip cards more accessible to riders by installing new vending machines at every rail station fall short in one crucial area: The new machines are not expected to be immediately accessible to all people with limited vision. 

The machines, which are scheduled to make their debut Sept. 1, have no audio feature. Riders who are blind or have impaired vision or those with cognitive impairments may find them difficult, if not impossible, to use, disability advocates said. 

“In this day and time I can’t imagine how. . . the Metro system [is] purchasing things and then . . . installing them and paying for them and they are not accessible to everyone,” said Denise Rush, who is blind and serves on Metro’s Accessibility Advisory Committee (AAC). “It is not acceptable. It is ludicrous.”

Second Circuit Upholds, Against IDEA Challenge, New York's Prohibition on Aversive Interventions

This is a huge and important decision:

Today, the United States Court of Appeals for the Second Circuit issued a divided opinion in Bryant v. New York State Education Department.  By a 2-1 vote, the court upheld New York's prohibition on aversive interventions.  The prohibition, issued as a regulation by the New York Board of Regents, "defines an 'aversive intervention' as an intervention 'intended to induce pain or discomfort to a student for the purpose of eliminating or reducing maladaptive behaviors,' such as the contingent application of painful, intrusive, or similar stimuli or activity."  The regulation was challenged by a group of New York parents who send their children (pursuant to Individualized Education Plans issued by their local school districts) to the Judge Rotenberg Center (JRC), a Massachusetts residential program that is well known for using electrical shocks as part of a plan of behavioral modification for certain school children with developmental disabilities.  The parents argued that the ban on aversives violated the IDEA, the Rehabilitation Act, and the Due Process and Equal Protection Clauses of the Fourteenth Amendment.  The United States District Court for the Northern District of New York dismissed the suit for failure to state a claim.

The Second Circuit affirmed in an opinion by Chief Judge Dennis Jacobs.  The court first held that the plaintiffs had standing even though Massachusetts itself now has a rule that (with certain exceptions not applicable to the Bryant plaintiffs) prohibits the use of aversives "such as spanking, slapping, hitting or contingent skin shock."  That rule does not cover all aversive treatment.  And although the Massachusetts regulation means that the plaintiffs' children could not receive the particularly listed forms of aversive treatment at JRC, the court concluded, they might be able to get aversive treatment somewhere else if the New York rule were enjoined.

The court then turned to the IDEA claims.  The parents argued "that prohibiting aversive interventions prevents these children from obtaining a truly individualized education program because they are categorically barred from getting an IEP that includes aversive interventions without regard to their individual needs."  But the majority easily rejected that argument.  The majority emphasized that "[n]othing in New York’s regulation prevents individualized assessment or precludes educators from considering a wide range of possible treatments"; it simply "prohibits consideration of a single method of treatment without foreclosing other options."  And the majority noted that the regulation itself is consistent with "the goals and emphasis of the IDEA," a statute that explicitly encourages the use of positive behavioral interventions and supports.  "Although the IDEA does not prohibit alternatives such as aversives," the majority concluded, "it cannot be said that a policy that relies on positive behavioral interventions only is incompatible with the IDEA" (my emphasis).

The majority urged that a contrary ruling would improperly second-guess the considered judgments of New York state officials regarding a sensitive issue of educational policy:

In this case, New York adopted the ban of aversives only after the Education Department made site visits, reviewed reports, and considered complaints from parents as well as school districts and others raising concerns about aversive techniques.  Notice of Emergency Adoption & Proposed Rulemaking, N.Y. State Educ. Dep’t, June 20, 2006.  It concluded that aversive interventions are dangerous and may backfire and that positive behavioral interventions are sufficiently effective to provide a FAPE. Id.

The prohibition therefore represents a considered judgment; one that conforms to the IDEA’s preference for positive behavioral intervention. See, e.g., 20 U.S.C. § 1400(c)(5)(F). (Another such New York policy is the long-standing bar on corporal punishment. See N.Y. Comp. Codes R. & Regs. tit. 8, § 19.5(a).) The IDEA does not categorically bar such statewide regulations that resolve problems in special education; otherwise, the IDEA would be transformed from a legislative scheme that preserves the states’ fundamental role in education to one that usurps the role of the states. 

The majority noted that "[t]here is an ongoing debate among the experts regarding the advantages and disadvantages of aversive interventions and positive-only methods of behavioral modification." It concluded that "[t]he judiciary is ill-suited to decide the winner of that debate."  For similar reasons, the court rejected the parents' Rehabilitation Act and Fourteenth Amendment claims.

The dissent, authored by United States District Judge Richard Sullivan (sitting by designation), disagreed with the majority's resolution of the IDEA claims.  Judge Sullivan argued that the record was insufficient, at this early stage of the litigation, to conclude that the plaintiffs could not make out an IDEA claim.

Weber on the Common Law of Disability Discrimination

Just out: Mark C. Weber, The Common Law of Disability Discrimination, 2012 Utah L. Rev. 429.  The abstract:

In many cases alleging race and sex discrimination, plaintiffs append common law claims to cases asserting federal or state statutory causes of action. In other race and sex cases, plaintiffs put forward these common law claims without making any federal or state statutory claims. Less frequent, and much less frequently discussed by scholars, are common law claims for conduct constituting disability discrimination. Nevertheless, there are sound theoretical and practical reasons to develop a common law of disability discrimination.

On the theoretical side of the discussion, federal statutory disability discrimination claims are not exclusive, and the common law can both draw from and influence statutory developments. The evolution of the common law can be part of the adaptation of the social and legal environment that is needed to achieve equality for people with disabilities. Practically speaking, there are numerous obstacles to statutory disability discrimination claims; the common law may provide redress when statutory remedies are blocked. Common law claims may face difficulties of their own, however, and the law may need to be reformed to facilitate just results in common law cases.

Existing scholarship includes several prominent discussions of disability and the law of torts, but there has been little development of the most important tort and contract remedies for disability discrimination. This Article seeks to contribute to the scholarly discussion by considering common law remedies for disability discrimination in a systematic way and discussing how to align the remedies more closely with the goal of protecting civil rights of individuals with disabilities.

Fay Vincent on the Low Cost of Disability Accommodations

Former Major League Baseball Commissioner Fay Vincent had this op-ed in the Wall Street Journal yesterday urging businesses to accommodate wheelchair users.  An excerpt:

I begin by urging the wide acceptance of toilet facilities with suitable bars and seats about four inches higher than normal. I know the cost of such a bathroom isn't great and the comfort and security such equipment offers the handicapped is enormous. 

I'm stunned by the number of doors in offices and other public places that aren't wide enough for my wheelchair—and by the number of door sills that make wheelchair use difficult. 

If the doorways were constructed to make it easy for the wheels of my chair to slide over the sills, the awkward occasions when the chair is unable to cross the sill would be avoided.

Battle with Hershey School Won, But Fight Against Ignorance Continues

See this editorial by that title in the Pottstown (PA) Mercury.  It begins:

Abraham Smith has won the battle but not yet the war. 

The 14-year-old, who is using an alias because he is infected with the AIDS virus, was issued an invitation a month ago to attend the Milton Hershey School, a free private boarding school for 1,850 low income boys and girls. The Dauphin County institution was founded by chocolate magnate Milton Hershey and his wife, Catherine, in 1909, originally for white male orphans. 

The invitation by school president Anthony Colistra was a reversal of the school officials’ previous stance last year that rejected the honor roll student’s application because he was HIV-positive.

Two New Articles on the Spending Clause and the Healthcare Cases

As both of my readers know (Hi, Mom!), since the day the Supreme Court decided the healthcare cases, I have been saying that the Court's Spending Clause decision was likely to be the most consequential part of the ruling for disability law and lots of other federal statutes.  That decision decoupled the Affordable Care Act's Medicaid expansion from the rest of the Medicaid program, and it, for the first time, held that a conditional federal spending program unconstitutionally coerced the states. The Court's decision on the Spending Clause issue was fractured; there was no majority opinion on the question.  And Chief Justice Roberts's pivotal opinion itself requires some work to understand.  I expect we'll see a fair amount of litigation and scholarship on the question.

Now up on SSRN are two pieces that will begin that conversation.  One, my own piece entitled The Anti-Leveraging Principle and the Spending Clause after NFIB, forthcoming this spring in the Georgetown Law Journal, tries to assess what the Court's decision means for Spending Clause doctrine generally.  Here's the abstract:

This article offers an initial assessment of the Supreme Court’s Spending Clause holding in National Federation of Independent Business v. Sebelius, which addressed the constitutional challenge to the Affordable Care Act. As Justice Ginsburg pointed out, NFIB marks “the first time ever” that the Court has held that a spending condition unconstitutionally coerced the states. The implications of that holding are potentially massive, and some of the language in the decision, if read broadly, would seriously threaten the constitutionality of a broad swath of federal spending legislation. 

Notwithstanding some of the Court’s language, this article contends that the case is not best read as rendering federal spending conditions unconstitutional simply because they are attached to large amounts of federal money, change the terms of participation in entrenched cooperative programs, or tie together separate programs into a package deal. Rather Chief Justice Roberts’s pivotal opinion is best read as adopting an “anti-leveraging principle” that will find coercion only where all three of these conditions are present at the same time. The anti-leveraging principle both makes the most sense of what the Chief Justice actually said in NFIB and does a better job of accommodating the relevant constitutional values than do alternative readings of the case. Although that principle threatens the constitutionality of far fewer conditional-spending laws than do those alternative readings, it raises challenging questions about the constitutionality of certain spending conditions. And it gives states an important new tool in negotiations with federal administrators.

The other piece, by health law mavens Nicole Huberfeld, Elizabeth Weeks Leonard, and Kevin Outterson, is entitled Plunging into Endless Difficulties: Medicaid and Coercion in the Healthcare Cases.  It focuses more specifically on the implications of the Court's decision for Medicaid.  Here's the abstract:

Of the four discrete questions before the Court in National Federation of Independent Business v. Sebelius, the Medicaid expansion held the greatest potential for destabilization from both a statutory and a constitutional perspective. As authors of an amicus brief supporting the Medicaid expansion, and scholars with expertise in health law who have been cited by the Court, we show in this article why NFIB is likely to fulfill that promise.

For the first time in its history, the Court held federal legislation based upon the spending power to be unconstitutionally coercive. Chief Justice Roberts’ plurality (joined for future voting purposes by the joint dissent) decided that the Medicaid expansion created by the ACA was a “new” program to which Congress could not attach the penalty of losing all Medicaid funding for refusing to participate. NFIB signals the Roberts Court’s interest in continuing the Federalism Revolution. The Court relied on, seemingly modified, and strengthened at least two existing elements of the test for conditional spending articulated in South Dakota v. Dole. Clear notice and germaneness now appear to be folded into the newly fashioned yet undefined coercion doctrine, which relied on quantitative as well as qualitative analysis to determine that the Medicaid expansion was unconstitutionally coercive. The Court is now actively enforcing the Tenth Amendment to protect states from federal spending legislation. 

NFIB raises many questions regarding implementation of the Medicaid expansion as well as the ACA. The dockets will experience the reverberations of these open questions, as well as the Court’s invitation to explore the coercion doctrine. Thanks to their success before the Court, states are no longer plaintiffs claiming coercion, powerless with a “gun to the head.” The Court’s decision grants them the option to expand Medicaid or not, leaving them with the difficult political choice upon which the lives of some of our most fragile, disenfranchised citizens will rely. We are plunged into Justice Cardozo’s “endless difficulties.”

Wheelchair User in Wisconsin Forced to Vote at Bottom of Stairs Without Secret Ballot

See this story, which begins:

A disabled Milwaukee retiree says she was deprived of her right to a secret ballot Tuesday, and it started with an inoperable wheelchair lift. 

"This particular situation is the most serious situation we've run across in the last few years," said Reid Magney, a spokesman with the Government Accountability Board. 

Marsha Valance, 66, said the handicapped lift at Juneau High School in Milwaukee was out of order when she arrived with her walker about 7:10 a.m. Tuesday. Because she couldn't get up the stairs, she called out for a poll worker. A worker subsequently carried her ballot downstairs to her without a sleeve and handed the ballot and a pencil to her. Leaning against her walker, she filled out the ballot at the bottom of the stairs just inside the door with no privacy. 

"I saw the poll worker reading it as he carried it back upstairs," Valance said in an interview Tuesday. "It's a matter of the right to vote a secret ballot. I got to vote, but it wasn't secret. I just think that's so outrageous."

Thanks to my friends at Bethesda Voices for the tip!

Fifth Circuit Decides Fascinating, Troubling IDEA Case

Last week, the United States Court of Appeals for the Fifth Circuit issued an opinion in Klein Independent School District v. Hovem.  Per Hovem, a very intelligent teenager with a learning disability that affected his writing abilities, got very good grades in high school and passed readily from grade to grade.  He achieved these results with certain accommodations, which included "extra time to complete written assignments, the opportunity to respond orally to assignments, printed copies of class notes, and the * * * use of his portable speller in class and at home."  (Apparently, Hovem never used the portable speller in class, because he found it stigmatizing; his teachers never saw him use it, but they assumed that he was using it, and he told them that he had been using it when asked.)

On the statewide Texas Assessment of Knowledge and Skills (TAKS) administered at the end of his junior year, Hovem "achieved Commended scores in Social Studies and Science, but he failed the written composition sections, which comprised a portion of the exit level English test."  To address this problem, the school assigned him to a "practical writing course" for his senior year.  When he took the SAT that fall, he received a 650 in Critical Reading and a 640 in Math, but only a 340 in Writing.  Sometime in the spring, Hovem and his parents decided that he should not graduate with his class but should instead receive specialized writing instruction from an out-of-state private school that focuses on providing services to intelligent students with learning disabilities.  Accordingly, Hovem dropped a course that was required for graduation.  Beginning with the summer session, Hovem enrolled in the private school.  His parents requested reimbursement of the private school's tuition; they contended that the public school district had not provided Hovem a Free Appropriate Public Education as required by the Individuals with Disabilities Education Act.  The United States District Court for the Southern District of Texas agreed with the Hovems and awarded reimbursement, but the Fifth Circuit, by a 2-1 vote, reversed.

Judge Edith Jones wrote the majority opinion, joined by Judge Leslie Southwick.  For Judge Jones, the case was a straightforward application of the Supreme Court's decision in Board of Education v. Rowley:

In Rowley, the Supreme Court clearly and repeatedly expressed IDEA's purpose “to confer some educational benefit upon the handicapped child.” 458 U.S. at 200, 102 S.Ct. at 3048 (emphasis added)). The Court quoted the statute as affording “specially designed instruction” and services “to assist a handicapped child to benefit from special education. § 1401(17) (emphasis added).” Id. Rowley declined to fix any single test to determine the adequacy of benefits that must be conferred by IDEA; this court's Michael F. test fills in some gaps. But Rowley held that for a particular child who had received “substantial” specialized instruction and services to compensate for deafness and “who is performing above average in the regular classrooms of a public school system,” the IEP was sufficient to afford her a FAPE. The Court held, “the IEP, and therefore the personalized instruction, should . . . if the child is being educated in the regular classrooms . . . be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” 458 U.S. at 204, 102 S.Ct. at 3049. Rowley not only enjoined lower courts to be “careful to avoid imposing their view of preferable educational methods . . . ” 458 U.S. at 207, 102 S.Ct. at 3051, but on the facts before it rejected a demand that the particular student be furnished additional auditory services to maximize her potential. 458 U.S. at 198, 102 S.Ct. at 3047. 

Nowhere in Rowley is the educational benefit defined exclusively or even primarily in terms of correcting the child's disability. Certainly, given the wide range of disabilities covered by IDEA, remediation may often be part of an IEP. Behavioral modifications, for instance, immediately come to mind as an example of an IEP strategy that may remediate a disability while also being necessary to confer educational benefits. But the whole educational experience, and its adaptation to confer “benefits” on the child, is the ultimate statutory goal.

* * *

The fundamental issue as seen by the district court is whether Per's program, fully acquiesced in by his parents until his senior high school year, was not sufficiently individualized because it failed to enable him to write and spell better. On the facts before us, Rowley is decisive. As has been noted, overall educational benefit, not solely disability remediation, is IDEA's statutory goal. Per's IEPs were sufficient because they were “reasonably calculated to enable [Per] to achieve passing marks and advance from grade to grade” in mainstream classes. Rowley, 458 U.S. at 204, 102 S.Ct. at 3049.Moreover, an IEP is not required to maximize a child's potential, but to provide “a basic floor of opportunity.” See Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 346 (5th Cir.2000) (paraphrasing Rowley). Finally, Rowley emphasizes that courts should not lightly disregard educators' decisions on the appropriate educational methods to achieve a FAPE. Whether KISD could have remediated Per's disability more effectively is debatable, but the school district did far more, and offered him far more, than robotic IDEA form-checking to assist his performance in school. And, to say nothing of his generally admirable academic career, the record shows that he made progress in his written expression over the course of high school. His IEPs were sufficiently individualized.

In dissent, Judge Carl Stewart argued that the school district does not satisfy its obligations under the IDEA simply because the student does well in the areas not affected by his disability; the district also has to provide the student with services that will address the limitations imposed by the disability.  He found "numerous flaws with the majority's reasoning":

First is its over-reliance on and misunderstanding of aspects of Rowley. In Rowley, the Supreme Court ruled that, in light of the district court's factual findings that a deaf student was receiving an adequate education and easily advancing in grade level, and “that [the student] was receiving personalized instruction and related services calculated by ... school administrators to meet her educational needs, the lower courts should not have concluded that the Act requires the provision of a sign-language interpreter.” 458 U.S. at 210, 102 S.Ct. 3034. Accordingly, Rowley stands for the proposition that, where courts determine that the individualized education plans afforded to disabled children are adequate, “courts must be careful to avoid imposing their view of preferable educational methods upon the States.” Id. at 207, 102 S.Ct. 3034. 

The majority disregards the nuance of the Rowley opinion, and instead treats Rowley as a blanket permission slip for federally-funded school districts to ignore the special needs of disabled students by affording them passing grades and advancement in the regular classroom. Although in Rowley the Supreme Court “considered Amy Rowley's promotions in determining that she had been afforded a FAPE, the Court limited its analysis to that one case and recognized that promotions were a fallible measure of educational benefit.” Hall by Hall v. Vance Cnty. Bd. of Educ., 774 F.2d 629, 635–36 (4th Cir.1985) (citing Rowley, 458 U.S. at 203 n. 25, 102 S.Ct. 3034). 

Promotion from grade to grade is less indicative of a disabled student's receipt of a FAPE where it appears that the student was promoted pursuant to a school policy rather than his achievement, where good grades are traceable to exemptions from standard expectations intended to circumvent rather than address his area of disability, and when independent evaluations contradict the amount of progress otherwise to be inferred from class promotion. See id. at 636 (holding that “[t]he district court did not err in discounting [the student's] promotions in light of the school's policy of social promotion and [his] test scores and independent evaluations”); D.B. v. Bedford Cnty. Sch. Bd., 708 F.Supp.2d 564, 584 (W.D.Va.2010) (“Although the [hearing officer] observed that D.B. was promoted a grade every year, [he] failed to comprehend that this token advancement documents, at best, a sad case of social promotion.”); Nein v. Greater Clark Cnty. Sch. Corp., 95 F.Supp.2d 961, 977–78 (concluding that, because dyslexic student “was graded on a modified scale and his tests and quizzes were modified, often being read to him aloud because he was unable to read them[,] ... [his] promotions to the next grade level are not evidence of educational benefit . . . .”); Smith v. Parham, 72 F.Supp.2d 570, 576 (D.Md.1999) (“[A]dvancement from grade to grade should not be the only factor considered when determining whether a child is receiving an educational benefit.”); Carl D. v. Special Sch. Dist., 21 F.Supp.2d 1042, 1053 (E.D.Mo.1998) (“Achievement of passing marks and advancement from grade to grade are important—but not dispositive—factors in assessing educational benefit.”). 

In this case, there is plentiful evidence that Per's promotion in classes in which his disability affected his performance was due in large part to the school's policy of excepting his full participation rather than tailoring his instruction to address his disability. As expressed above, Per was in a posture to graduate only upon the school's waiver, on the basis of his disability, of the requirement that he pass the written component of the TAKS. Moreover, the battery of tests Per undertook as part of his application to the Landmark School provided measurable data that he was performing significantly below grade level in areas affected by his disability. Accordingly, Per's passing grades and presumptive graduation are insufficient to establish that KISD had provided him a FAPE. 

Acquiescence to a disabled student's weaknesses, even if well-meaning, cannot obviate the requirements of the IDEA. Put otherwise, the fulfillment of a school district's obligations under the IDEA is not a matter of intention. It is entirely reasonable to assume, as the majority apparently does, that KISD's employees believed that they were doing Per a favor by excusing his failure to complete written assignments legibly, timely, or even at all; by emphasizing his many strengths when grading his performance, yet ignoring his core weaknesses; by matriculating and promoting him through the general education curriculum toward graduation, in spite of the fact that, though he possesses an impressive intellect, he plainly displayed severe difficulty in producing even the most basic forms of written communication, such as words, sentences, and paragraphs, which average students produce with ease.

What's interesting about this argument is its suggestion that providing accommodations to a student, far from satisfying the school district's obligations under the IDEA, may actually violate that statute by excluding the student from important (though difficult) learning experiences.

Duhl on Price on Mental Disability in Academic Life

New on SSRN: Gregory M. Duhl, Over the Borderline — A Review of Margaret Price’s Mad at School: Rhetorics of Mental Disability in Academic Life.  The abstract:

This essay is about “madness” in higher education. In Mad at School: Rhetorics of Mental Disability in Academic Life, Professor Price analyzes the rhetoric and discourse surrounding mental disabilities in academia. In this essay, I place Price’s work in a legal context, suggesting why the Americans with Disabilities Act fails those with mental illness and why reform is needed to protect them. My own narrative as a law professor with Borderline Personality Disorder frames my critique. Narratives of mental illness are important because they help connect those who are often stigmatized and isolated due to mental illness and provide a framework for them to overcome barriers limiting their equal participation in academic life.

SDNY Rules for Plaintiffs in NYC Voting Access Case

See this article, which begins:

The city has failed to adequately provide for disabled voters at election polling places, a federal judge ruled Wednesday. 

U.S. District Judge Deborah Batts ruled in favor of two groups representing the disabled, the United Spinal Association and Disabled In Action. They had sued the city Board of Elections in 2010, saying the city was violating the Americans with Disabilities Act through "pervasive and persistent access barriers" at poll sites operated by the Board of Elections. 

The judge said the plaintiffs had provided copious documentation of barriers at poll sites, ranging from unsafe ramps to missing signage and improper placement of voting equipment and furniture.

NYT Editorial on "Millions of Dollars of Fraud" in New York's Preschool Special Education

See this important editorial.  Excerpts:

Over the last several weeks, Comptroller Thomas DiNapoli of New York has issued audits detailing millions of dollars in fraud by private companies that provide special education services to preschool children with learning, developmental or other disabilities.

* * * 

Beyond that, the Legislature needs to rethink the way the state delivers these services. David Halbfinger reported in The Times earlier this year that New York is the only state that turns over preschool special education to private contractors, many of which are for-profit companies. 

In most of the country, The Times reports, these services are provided through the public school districts. State officials in New York place the annual average cost at about $17,000 per preschooler. The Times reported earlier this year that the average cost for children in Massachusetts, which is said to have a generous program, was less than $10,000 per child.

This should be a cautionary tale for those who want to privatize IDEA more generally.

Baltimore County Agrees to $475K Employment Settlement with DOJ

See this article, which begins:

Baltimore County agreed on Tuesday to a $475,000 settlement with the U.S. Department of Justice to settle an investigation over the county’s employment practices under the Americans with Disabilities Act. 

During the last several years, county officials said 13 people either filed or threatened to file charges with the Federal Equal Employment Opportunity Commission alleging the county violated terms of the act during routine medical examination procedures for its employees. 

The settlement resolves 10 of the 13 cases. The three remaining complainants “made settlement demands that the county believed were unreasonable based upon the facts of those cases,” said Mike Field, an attorney for the county. If any of the three file suit, the county plans to “vigorously defend” itself, he added.

The settlement, in the form of a consent decree, also provides for substantial injunctive relief.  DOJ's press release is here.

DOJ: Illinois High School Association is a Public Accommodation Covered by the ADA

A couple of weeks ago, the Department of Justice filed this statement of interest in Illinois ex rel. Madigan v. Illinois High School Association, a case about which I have blogged before.  The statement of interest argues that the IHSA is a public accommodation that is subject to the requirements of Title III of the ADA.  Here is the crucial analysis:

A “public accommodation” under the statute is “a private entity that owns, leases (or leases to), or operates a place of public accommodation.” 28 C.F.R. § 36.104; 42 U.S.C. § 12181(7). The Department’s 1991 regulatory guidance confirms that it is the private entity — the “public accommodation” — that is subject to title III’s requirements: “The term ‘public accommodation[ ]’ . . . is reserved by the final rule for the private entity that owns, leases (or leases to), or operates a place of public accommodation. It is the public accommodation, and not the place of public accommodation, that is subject to the regulation’s nondiscrimination requirements.” 28 C.F.R. pt. 36, App. C (concerning the definitions at 28 C.F.R. § 36.104). 

Application of this standard to Plaintiffs’ claims demonstrates that IHSA is subject to title III. IHSA asserts that it is not a “public entity.” Mem. Supp. Mot. Dismiss at 11-2. If that assertion is correct, see supra note 2, then it necessarily follows that IHSA qualifies as a “private entity” for purposes of title III. See 42 U.S.C. § 12181 (6) (defining “private entity” for purposes of title III as “any entity other than a public entity (as defined in section 12131(1))”). In addition, IHSA does not dispute that its activities affect commerce. Finally, IHSA operates “places of public accommodation” — specifically, the facilities in which the association’s meets and tournaments are held, including the gymnasiums, arenas, courts, pools, tracks, stadiums, and other venues open to the public. Compl. ¶ 38. Title III explicitly identifies such facilities as places of public accommodation when owned, leased, or operated by a private entity whose operations affect commerce. See 42 U.S.C. § 12181(7)(C), (D), (J), and (L) (listing, as places of public accommodation: elementary, secondary, undergraduate, or other places of education; gymnasiums, or other places of exercise or recreation; stadiums or other places of exhibition entertainment; and/or other places of public gathering). 

IHSA asserts that because it is “not a physical structure” and is “merely an organization that sanctions and promotes athletic events,” it is not required to comply with title III. Def.’s Mem. Supp. Mot. Dismiss at 13; Rep. at 7. IHSA cites Brown v. 1995 Tenet Paraamerica Bicycle Challenge, 959 F. Supp. 496 (N.D. Ill. 1997) for this proposition. Brown is materially different from the case at bar. Brown — involving a bicyclist who was denied participation in a cross country bicycle tour because he refused to wear a helmet — turned on whether roads upon which a cycling tour occurred could themselves be considered “places of public accommodation” to bring the organizer within title III coverage. Id. A road, without more, is not a “place of public accommodation” under title III. See 28 C.F.R. § 36.104 (“facility” definition). Brown did not plead sufficient facts for title III coverage of the organizing group because he did not show that the places in which it operated — the roads — were analogous to the twelve categories of places of public accommodation listed in title III, and he did not allege that he was denied access to a service at a place. See 959 F. Supp. at 499. In contrast, the gymnasiums, stadiums, and other athletic facilities that IHSA operates are undoubtedly places of public accommodation, and plaintiffs allege denial of participation in them. 

Contrary to IHSA’s argument, this case does not raise a question of the coverage of public accommodations that do not occupy a physical space, such as online-only stores. Plaintiffs have, indeed, alleged that IHSA operates — and controls student athletes’ access to — the sectional and state tournaments held in various physical gymnasiums, stadiums, and other arenas across the state. See Compl. ¶¶ 7, 13, 29-32. Accordingly, IHSA falls squarely within title III’s coverage and is subject to the requirements of title III. 

D. Or. Distinguishes Wal-Mart, Certifies Class in Olmstead Challenge to Sheltered Workshops

I've blogged before about Lane v. Kitzhaber, the case pending in the United States District Court for the District of Oregon in which a set of plaintiffs with intellectual and developmental disabilities is challenging Oregon's reliance on sheltered workshops, instead of integrated supported employment, for that population.  Yesterday, the district court issued an opinion granting the plaintiffs' motion for class certification.  The state had argued that the Supreme Court's recent decision in Wal-Mart v. Dukes meant that there was no sufficiently common question of law or fact to justify certification of a class action.  But the court rejected that argument.  Here's the nub of the court's analysis:

Unlike this case, Wal-Mart was a Title VII gender discrimination case in which the plaintiffs sought damages. The Supreme Court found that the evidence was insufficient to support commonality by failing to show a common reason for the alleged disparate treatment of female employees. Instead, the evidence showed significant localized discretionary decision- making among thousands of stores nationwide potentially impacting a class of approximately 1.5 million women. In contrast, the Rehabilitation Act claims alleged in this case do not require proof of the intent behind the alleged discrimination, but instead rely on a denial of benefits to disabled persons. Thus, the Title VII analysis in Wal-Mart is not closely on point. Moreover, plaintiffs in this case point to a common policy and practice of unnecessary segregation by DHS and its programs which is capable of classwide resolution. 

* * * 

Defendants assert that a single answer cannot be given to any of the four allegedly common questions of fact, pointing to differences among the named plaintiffs. For example, not all of the named plaintiffs work in sheltered workshops; some have worked in (or declined the opportunity to work in) integrated settings; and appropriate vocational training will differ for each individual. However, commonality only requires a single common question of law or fact. A common question of law posed in this case is whether defendants have failed to plan, administer, operate and fund a system that provides employment services that allow persons with disabilities to work in the most integrated setting. As in other cases certifying class actions under the ADA and Rehabilitation Act, commonality exists even where class members are not identically situated.

As defendants correctly note, some plaintiffs or putative class members may need more or different employment services than others. However, all plaintiffs are qualified for, but not receiving the full benefit of, supported employment services; all lack regular contact with non- disabled peers (other than paid staff); and all want to work, but are not working, in an integrated setting. As a result, they and all similarly situated persons suffer the same injury of unnecessary segregation in the employment setting. It is not necessary, as defendants contend, for plaintiffs to prove at this stage that they and all putative class members are unnecessarily segregated and would benefit from employment services. That is, in effect, the answer to the common question and not the common question of whether they are being denied supported employment services for which they are qualified.

Under defendants’ interpretation, differences with respect to the needs and preferences of persons with disabilities would always preclude the certification of a class in virtually all ADA Title II cases. This court rejects that interpretation and concludes that plaintiffs satisfy the commonality requirement of FRCP 23(a).

(The Department of Justice had filed a statement of interest supporting this conclusion).

Hershey School Abandons Untenable Litigating Position, Will Admit Students with HIV

Good news via this article, which begins:

The Milton Hershey School has reversed its policy to deny admission to applicants who are HIV positive. 

In a statement, MHS President Anthony Colistra said, "We are issuing a new Equal Opportunity Policy clearly stating that the School treats applicants with HIV no differently than any other applicants. We are also developing and providing mandatory training for staff and students on HIV issues and expanding our current training on Universal Precautions." 

A 13-year-old denied admission because he has HIV filed a federal lawsuit using the pseudonym "Abraham Smith." He says the Milton Hershey School violated the Americans with Disabilities Act.

MHS has extendied an offer to the teenager and his mother to continue the enrollment process for fall classes.

It looks like the decision of the Department of Justice to advise Hershey that it could not exclude students with HIV was critical to Hershey's decision here. Kudos to my old colleagues at DOJ!

California Supreme Court Decides Interesting Civil Commitment Case

Last week, the California Supreme Court issued a decision in People v. Barrett.  The case involved the civil commitment of a woman with an intellectual disability on the basis of dangerousness.  California law provides for the civil commitment, on dangerousness grounds, of people who are either "mentally ill" or "mentally retarded."  Both classes of individual are entitled to trial by jury in their commitment proceedings, but only individuals who are subject to commitment for being "mentally ill" are entitled, under state law, to be personally advised of the jury-trial right.  Barrett, who was committed after her counsel waived her right to jury trial without her being personally advised of that right, argued that the distinction California statutes draw between "mentally ill" and "mentally retarded" individuals violated equal protection under both the state and federal constitutions.

The court rejected that argument.  It found a rational basis for distinguishing between "mentally ill" and "mentally retarded" individuals in deciding whether to personally advise them of their jury trial right.  The court concluded that a finding of dangerous "mental illness" does "not necessarily imply incompetence or a reduced ability to understand, and make decisions about, the conduct of the proceedings," but that a finding of dangerous "mental retardation" in fact "raises substantial doubts about ["mentally retarded" individuals'] cognitive and intellectual functioning sufficient to limit the personal and procedural role they play."  Justice Werdegar and Justice Liu filed separate concurrences in the judgment.  They argued that the distinction the state statutes drew (and the court accepted) was based on irrational prejudice) and accordingly violated the state constitutional prohibition against denials of equal protection.

Both Justice Werdegar and Justice Liu said they would follow, for these purposes, the U.S. Supreme Court's analysis in City of Cleburne v. Cleburne Living Center, which held that a Texas city denied equal protection when it refused to grant a special use permit to a group home to be occupied by people with developmental disabilities.  Justice Liu noted that, after Cleburne, the Court had upheld the distinctions Kentucky drew between intellectual and psychiatric disabilities in its civil commitment process.  The case was Heller v. Doe.  But Justice Liu argued that Heller lacked persuasive force in interpreting the California constitution, because that case "did not apply Cleburne's analysis yet made no effort to distinguish it."  And, he argued, it was not clear that Heller, which did not involve the jury trial right, dictated a result here in any event.

Although they said the distinction California law drew violated the state constitution, Justices Werdegar and Liu joined the court's judgment because they found the error harmless under the analysis the court uses for violations of state law.

First Circuit Holds that But-For Causation is Required to Prove ADA/Rehab Act Violation

Joining the Sixth Circuit's recent en banc decision in Lewis v. Humboldt Acquisition, the First Circuit last week held, in Palmquist v. Shinseki, that the Price-Waterhouse mixed-motives analysis is not available to ADA and Rehabilitation Act plaintiffs.  Rather, according to the Lewis and Palmquist courts, plaintiffs in these cases must prove that their protected act or status was the but-for cause of the adverse employment action.  Both cases applied the Supreme Court's decision in  Gross v. FBL Financial Services, which held that plaintiffs suing under the Age Discrimination in Employment Act must prove but-for causation.