Serial Litigation Comes to New Orleans

Hey, I'm going to New Orleans next week!  Coincidence?  Well, actually, yes.  

Nonetheless, see this article from the Louisiana Record.  It begins:

The number of lawsuits against businesses allegedly in violation of the Americans with Disabilities Act (ADA) has grown over the past few years in the New Orleans area. 

David Whitaker, partner at New Orleans-based defense firm Kean Miller, said the recent up-tick in the number of lawsuits under the ADA has been mainly led by New Orleans area attorney Andrew Bizer of the Bizer Law Firm.

Schweik on the ADA, "Sidewalk Management," and the Politics of Urban Space

Just out: Susan Schweik, Kicked to the Curb: Ugly Law Then and Now, 46 Harv. C.R.-C.L. L. Rev. 1 (2011).  The abstract:

For most CRCL readers, discussion of the Americans with Disabilities Act (“ADA”) in the context of the politics of urban space will probably invoke images of frivolous lawsuits, backlash against civil rights law, and so on. This essay concerns a more unexpected and surprisingly blunt consequence of the ADA. I will focus on Portland, Oregon, where a new and cynical manipulation of the ADA pits disability rights against homeless rights. Setting this development in the historical context of a previous ordinance, the infamous “ugly law” that targeted poor disabled people in Portland and elsewhere, I will show how repudiation of that ordinance played a part in the creation of the ADA--an act now not only failing to prevent but even actively prescribing the targeting of poor disabled people. The case of Portland provides a broader opportunity to explore the relationship between people and physical space, considering: how city ordinances, and even federal civil rights law, can turn people into objects; how at the same time urban objects can enjoy protected status almost as if they were people; and how disability oppression, in the context of classed and capitalist social relations, has played a shifting role in these dynamics. Portland will also provide a location and occasion for exploring the relation between law and poetry (particularly street poetry) as forms of urban expression. Poems like those I take up here may be valuable tools for legal scholars, not simply because they document a stance, but because, in complex ways, they allow us to place laws in local dialogue with the people they affect.

A fascinating piece about an important set of issues.

 

Student Note on Using the False Claims Act to Enforce Civil Rights Laws

The use of the False Claims Act to enforce civil rights laws is an important and potentially promising trend for civil rights litigators.  Check out this new student note discussing that trend:  Ralph C. Mayrell, Note, Blowing the Whistle on Civil Rights: Analyzing the False Claims Act as an Alternative Enforcement Method for Civil Rights Laws, 91 Tex. L. Rev. 449 (2012).  From the introduction:

The FCA offers significant benefits to civil rights plaintiffs. Plaintiffs’ (called “relators” in the FCA) damages, can be quite large—up to 30% of a maximum of triple the value of the contract or grant—and plaintiffs can also take away per-claim civil penalties as well as ask for attorneys’ fees. These significant damages should incentivize private attorneys to litigate these claims as well as disincentivize government entities from violating antidiscrimination statutes. And because the injured party under the FCA is the United States, institutional-change litigants do not face the standing problems they otherwise have to overcome under laws based on remedying individual injuries.

The FCA provides civil rights litigators with another avenue for enforcing antidiscrimination laws, but it also comes with risks. This Note argues for using the FCA to defend civil rights to the benefit of discrimination victims. It also argues that agencies should use their flexibility in contracting to expand the civil rights requirements of contractors to include requirements of compliance with constitutional norms appropriate for the recipient agency. Despite this Note’s optimistic view of increasing damages against civil rights violators, there are risks to increasing the size of damages. Greater damages hurt local government coffers despite the Court’s and Congress’s professed desire to protect local governments from punitive damages in the civil rights context. Larger damages for relators also could discourage the worthy goal of reconciliation between the injured party and the local government. Furthermore, these penalties could decrease the local government’s willingness to admit wrongdoing in traditional civil rights disputes because they will know that reconciliation and settlement would not bar future FCA claims by third parties based on those admissions. This Note argues that despite these risks, when used judiciously by litigants, the FCA can play a useful role where individual remedies do not suffice or institutional-change litigants lack standing to apply pressure.

NYT on Hurricane Sandy and the Mental Health Crisis System

Good piece in today's Times on the disruptive effects of Hurricane Sandy on the mental health crisis system in New York City.  Excerpts:

Psychiatric hospital admission is always a judgment call. But in the city, according to hospital records and interviews with psychiatrists and veteran advocates of community care, the odds of securing mental health treatment in a crisis have worsened significantly since the hurricane. The storm’s surge knocked out several of the city’s largest psychiatric hospitals, disrupted outpatient services and flooded scores of coastal nursing homes and “adult homes” where many mentally ill people had found housing of last resort. 

* * * 

The storm battered a mental health system that still relies heavily on private nursing homes and substandard adult homes to house people with mental illness. Such institutions have a sordid history of neglect and exploitation, and the courts have repeatedly found that their overuse by the state isolated thousands of people in violation of the Americans With Disabilities Act. 

Plans are under way to increase supportive housing — dwellings where mentally ill people can live relatively independently, with support services. But even before Hurricane Sandy, the expansion fell far short of demand.

The EEOC's Aggressive Stance on Disability Discrimination Continues

See this article by that title from JD Supra.  It begins:

Dillard's Inc., a large national retail chain, has agreed to pay $2 million to resolve a class action disability discrimination lawsuit filed by the Equal Employment Opportunity Commission (EEOC). This settlement is further evidence that the EEOC will continue to go after employers if their policies and practices fail to adhere to the mandates of the Americans with Disabilities Act (ADA). 

As part of its complaint, the EEOC claimed that the national retail chain violated the ADA by: 

• Having an attendance policy that, without exception, required all employees to provide a doctor's note disclosing the exact nature of their medical condition in order for such absences to get approved, and terminating employees if they refused to give Dillard's more specific health-related information, the employee could be terminated for absenteeism; and
• Automatically terminating employees for taking sick leave beyond the maximum amount allowed under company policy - without considering the ADA.

A Failure-to-Comply-With-Olmstead Horror Story

See this article.  An early excerpt:

Pereira wanted her teenage son to live at a place called Baby House, a small group home for medically fragile children and young adults, with a long track record of treating children like Bryan as family. His care would have cost the state $300 per day there. 

State health and disability administrators had a different plan: For $200 more each day, Bryan would live in a nursing home. 

“I don’t want my son in this place,” Pereira wrote to disability administrators of the Florida Club Care nursing home in Miami Gardens. “If something happened with my son, [if] he died,” she wrote, “I will feel that this place killed” him. 

Two years later, that is just how Pereira feels.

Nice Article on the State of Accessibility Today

In Truthout, here.

Interesting Student Note on "The Framing of Fat"

Just out: Lauren E. Jones, Note, The Framing of Fat: Narratives of Health and Disability in Fat Discrimination Litigation, 87 N.Y.U. L. Rev. 1996 (2012).  The abstract:

Fat discrimination is rampant in education, health care, and employment. Anti-obesity activists claim that it is not only acceptable, but actually desirable to stigmatize fat bodies because this stigmatization shames fat people into better health. In response, the fat acceptance movement turned to science to show that fat bodies can be healthy. As part of this movement, legislative advocacy and litigation strategies have utilized the argument that fat discrimination should not be permitted because fat people can be healthy. I argue that this move undermines the true justice that the fat acceptance community seeks. In the quest towards the fat acceptance movement's ultimate goal of acceptance for all fat bodies, the movement must demand dignity and respect for all bodies, including fat bodies that are unhealthy In this Note, I will discuss the theoretical problems inherent in the two most frequent arguments employed by fat able-bodied plaintiffs: that they are healthy in comparison with unhealthy or disabled people, and, alternatively, that they are disabled. In addition to being theoretically problematic, as a practical matter, fat discrimination challenges using claims based on the good health and able bodies of fat persons have been mostly unsuccessful. On the other hand, some contemporaneous fat plaintiffs have won cases in which they claimed that fatness is a disability. I argue that fat plaintiffs who use disability claims must work in solidarity with the disability rights movement, which demands respect, self-determination, and access for disabled people. If they do not, fat plaintiffs risk creating precedent that will make it harder for disabled people to prove their own discrimination claims and perpetuating stereotypes about disabled people. In all cases, as an anti-oppression movement within a broader social justice framework, the fat acceptance movement must work in solidarity with the disability justice movement rather than undermining the legal protections disabled people have won.

Judge Thompson Orders Alabama to Stop Segregating Prisoners with HIV

See this article, which begins:

A federal judge in Alabama has ordered the state to stop segregating its prisoners living with HIV, a “historic decision” according to prison advocates who successfully argued the practice violated the Americans with Disabilities Act. 

In a 153-page ruling, U.S. District Court Judge Myron H. Thompson ruled Friday in a class-action lawsuit filed by the American Civil Liberties Union (ACLU) that the Alabama Department of Corrections discriminates against the state’s 250 prisoners living with the disease by housing them separately and denies them equal access to rehabilitative programs.

“Today’s decision is historic,” said Margaret Winter, associate director of the ACLU National Prison Project and lead counsel for the plaintiffs. “It spells an end to a segregation policy that has inflicted needless misery on Alabama prisoners with HIV and their families.” 

Thompson, in his decision, said that while the state’s segregation policy has been an unnecessary tool for preventing the transmission of HIV, it has been an effective one for “humiliating and isolating” prisoners living with the disease.

FDA Warns Judge Rotenberg Center

See this story from ABC News.  It begins:

A Boston area school for severely disabled children has received a warning letter from the U.S. Food and Drug Administration over its use of devices that administer shocks to its students when they misbehave, a form of restraint that is at the extreme end of a practice that has lawmakers calling for nationwide reform.

The devices "violate the Federal Food, Drug, and Cosmetic Act because your facility has failed to obtain FDA clearance or approval," the Dec. 6 letter to the Judge Rotenberg Educational Center says. An earlier version had FDA approval.

Disturbing video showing staff at the school administering 31 shocks in 2002 to a teenager with autistic characteristics, Andre McCollins, was part of a recent ABC News report about children who have been injured or killed while being restrained in school. The school's use of what it called "skin shocks" represents an extreme example, but is not the only measure that has brought objections from critics. Other schools have faced criticism for using handcuffs, stuffing children into so-called therapy bags, or placing them in small padded chambers known as seclusion rooms.

California Supreme Court: Two-Way Fee-Shifting Statute for Accessibility Cases Not Preempted by the ADA

Yesterday, the California Supreme Court issued an opinion in Jankey v. Lee.  Jankey, who uses a wheelchair, brought a case in state court and alleged that Lee's grocery store was inaccessible because it had a small step in front.  Jankey raised claims under both the public accommodations provisions of the ADA and state law, though the state law imposed the same substantive standards of liability as does the ADA.  The trial court granted summary judgment to Lee.  Although the grocery store did, in fact, have a small step at the front, the court concluded that removal of that step would not be readily achievable.  As a result, Lee did not violate the ADA or the parallel state laws.  Lee then moved for an award of attorneys' fees under Section 55 of California's Civil Code, which provides that the prevailing party -- plaintiff or defendant -- is entitled to fees in injunctive actions alleging inaccessible public accommodations.  Jankey argued that this provision was preempted by the ADA's attorneys' fees provision -- under which prevailing defendants are entitled to fees only if the plaintiff's case satisfies the Christiansburg Garment standard of being "frivolous, unreasonable, or without foundation."  The trial court nonetheless concluded that Section 55 mandated an award of fees to a prevailing defendant.  Although it did not find Jankey's claims to be frivolous, unreasonable, or without foundation, it granted the motion for attorneys' fees.  The appellate court affirmed, as did the Supreme Court in yesterday's decision.

The California Supreme Court concluded that, under the plain text of Section 55, attorneys' fees are not discretionary.  Rather, any prevailing party -- plaintiff or defendant -- in a Section 55 action is entitled to fees.

The court then rejected Jankey's preemption argument.  It first interpreted the ADA's savings clause for more disability-protective state laws as foreclosing any conflict or obstacle preemption challenge to Section 55.  The ADA's savings clause provides that "[n]othing in this chapter shall be construed to invalidate or limit the remedies, rights, and procedures of any * * * law of any State or political subdivision of any State or jurisdiction that provides greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter."  The court read this clause as saving from preemption any state law that at least in part affords people with disabilities greater protection than does the ADA -- even if other aspects of the state law, or even the state law taken as a whole, provide less protection to people with disabilities.  Because Section 55 provides broader protection than the ADA's public accommodations title in one respect -- the state law empowers people with disabilities to sue when they are "potentially aggrieved" by a defendant's violations, while federal law requires an individual with a disability to show that she is "about to be subjected to" discrimination -- the court saw no "need to parse every aspect of [the] state law to determine whether, on balance, the state law is equally or more advantageous as a whole."

Notwithstanding this conclusion, the court then examined the questions of conflict and obstacle preemption directly.  The court concluded that -- even if the plaintiff's state-law and ADA claims so completely overlapped that the state-law claim required no additional work to defend -- the award of full attorneys' fees to the prevailing defendant was not preempted:  "Lee would have been entitled to the same fees whether or not Jankey pleaded an ADA claim; the pleading of an ADA claim was neither a necessary nor a sufficient cause of the fee award. The fee award here is not in any meaningful sense for or on account of having to defend against an ADA claim, but instead a consequence of Jankey‟s purely voluntary decision to seek additional state remedies."  Because "[p]laintiffs can always sue under the ADA alone, safe in the knowledge that even if they lose, defense fees will be available only in accordance with Christiansburg," the court concluded that awarding attorneys' fees to defendants more broadly in cases in which plaintiffs voluntarily choose to add a state-law claim neither conflicted with the ADA nor posed an obstacle to the accomplishment of its purposes.

Four years ago, the Ninth Circuit held that two-way fee-shifting under Section 55 was preempted by the ADA.  I doubt, therefore, that this is the last we'll hear of this issue.

Bazelon Center Statement on Sandy Hook Shootings

My friends over at the Bazelon Center for Mental Health Law (disclosure: I'm on their Board of Trustees) have posted this statement regarding Friday's horrible shootings:

The Judge David L. Bazelon Center for Mental Health Law joins the rest of the nation in mourning the tragic loss of life at Sandy Hook Elementary School in Newtown, Connecticut. While much remains unknown about this incident, it is likely that, once again, two factors are at play: the all-too-easy access to guns, and the lack of access to the crucial community mental health services that people want and need. 

With respect to weapons, the Bazelon Center believes that no one who is dangerous—whether or not the individual has a mental illness—should have access to guns. In all instances, one’s capacity to handle a weapon responsibly should be determined individually, not based solely on a diagnostic label. Restrictions on access to guns should be applied equally to everyone rather than targeting people with mental illnesses. 

In the wake of similar tragedies, subsequent discussions concerning mental health services have drifted toward increasing the number of psychiatric hospital beds or making it easier for courts to commit people with mental illnesses to involuntary treatment. In reality, every state has provisions to hospitalize people when they are dangerous to themselves or others as a result of mental illnesses and when less restrictive measures are not appropriate. Moreover, while there may be areas of the country where psychiatric hospital beds are in short supply, nationwide many such beds are occupied by people who simply do not need hospital care.

The real problem is that community based services—including mobile crisis services, assertive community treatment, peer supports and supportive housing—are in short supply, delaying hospital discharges and resulting in mental health crises that could otherwise be prevented. While community mental health programs can offer excellent, comprehensive services, lack of resources has resulted in these services often not being available, except to people who are in immediate crisis and who have already endured multiple hospitalizations. 

A stronger commitment to vital community mental health services is long overdue and must be paired with improved gun laws in order to prevent future tragedies. This is a problem of political will; not know-how. 

Furthermore, people with mental illnesses are no more violent than people without mental illnesses. Yet, these kind of tragic events unfairly and harmfully tar people with mental illnesses as inherently dangerous. In fact, these Americans not only share the nation’s horror at these events, but also bear the additional weight of false stereotypes and discrimination needlessly reinforced by these perceptions. 

The Bazelon Center is working toward a more humane and just America, where we reduce the likelihood of crises such as we just experienced and where people with mental illnesses can thrive as a part of their communities.

Third Circuit: Objecting Guardians Had a Right to Intervene in Remedial Stage of Olmstead Deinstitutionalization Case

Last week, the United States Court of Appeals for the Third Circuit issued an opinion in Benjamin ex rel. Yock v. Department of Public Welfare.  The case was brought by five plaintiffs with intellectual disabilities who reside in institutions operated by the Commonwealth of Pennsylvania.  They alleged that the institutions were not the most integrated setting appropriate to their needs, and that the Commonwealth was therefore violating the ADA as interpreted in the Olmstead case.  The district court certified a plaintiff class consisting of:

All persons who: (1) currently or in the future will reside in on[e] of Pennsylvania's state-operated intermediate care facilities for persons with mental retardation; (2) could reside in the community with appropriate services and supports; and (3) do not or would not oppose community placement.

A group of guardians and next friends who opposed community placement for their wards who resided in state institutions sought to intervene following certification of the class.  The district court denied that motion, and the Third Circuit, in an unpublished opinion filed last year, affirmed.  In last year's opinion, the Third Circuit explained that:

The current parties have deliberately defined the class and the relief sought so that Intervenors' right to choose institutional treatment would not be affected. 

The District Court made its intent clear. The class it certified expressly excludes all current and future residents of ICFs/MR who oppose, or would at any relevant time in the future oppose, community placement. It therefore excludes Intervenors, and they will not be personally bound by anything that is decided in this litigation. It follows that, if the DPW should threaten in the future to coerce them into leaving their current institutions, Intervenors would be free to file their own suit and litigate whether they have a legally enforceable right to remain in the institution where they currently reside.

Shortly after the Third Circuit affirmed the denial of intervention, the plaintiffs and the Commonwealth reached agreement on a proposed settlement of the litigation.  In its opinion last week, the Third Circuit described the settlement as follows:

This fifteen-page document contains several significant components, including the establishment of: (1) an annual assessment process to create, maintain and update a “Planning List” consisting of “all state ICF/MR residents who have been identified as not opposed to discharge to community placement” (JA470); (2) educational, training, and outreach programs about community placement; (3) a viable “Integration Plan” providing community placements to a minimum number of ICF/MR residents on the Planning List in each fiscal year until each and every resident on the Planning List has been discharged; and (4) a number of budgetary steps designed to facilitate compliance with this Integration Plan.

The objecting guardians filed objections to this settlement, and they also filed a new motion to intervene to participate in the remedial stage of the case.  The district court denied the motion to intervene, but it said that it would consider the guardians' objections in deciding whether to approve the settlement.  After a fairness hearing, at which the guardians participated and presented their objections, the district court approved the settlement.

In its opinion last week, the Third Circuit reversed the district court's denial of the guardians' motion to intervene in the remedial stage of the case.  The appellate court concluded that "there are several components of the Settlement Agreement reached by the parties (and ultimately approved by the District Court after it denied Appellants' motions to intervene) that may affect or impair the protectable interests of Appellants themselves as well as other ICF/MR residents, guardians, and involved family members."  The court also said that "Appellants' interests in this stage of this complex yet important case—and the possible effects of the disposition of this stage on their interests—extend to the District Court's underlying class definition."  Accordingly, the Third Circuit held that the district court abused its discretion by denying intervention to the objecting guardians at the remedial stage.  But the appellate court was careful to emphasize the limited nature of its holding:

We merely determine that, given the possible effects of the Settlement Agreement, Appellants possess “a sufficient interest” in the remedy stage of the litigation and that their “interest may be affected or impaired as a practical matter” by the disposition of this distinct stage of this complex yet important case. We express no opinion whatsoever as to whether or not the Settlement Agreement (or any other settlement that may be reached in this proceeding) should ultimately be approved—or whether the class itself should or should not be decertified. All such matters must be decided in the first instance by the District Court on remand—with the full and appropriate participation of Appellants as Rule 24(a)(2) intervenors.

ASAN Statement Regarding the Newtown Shootings

I have a lot of disability-law related news to report from this past week, and I'm sure I'll post it tomorrow, but I'm still sufficiently shocked and saddened by yesterday's events in Connecticut that I can't really bring myself to do it today.  Twenty kids killed -- and little kids at that.  It crushes the heart. So all I'll post today is this statement that my friends at the Autistic Self Advocacy Network put out regarding the shootings:

In response to recent media reports that the perpetrator of today’s shooting in Newton, Connecticut may have been diagnosed on the autism spectrum or with a psychiatric disability, the Autistic Self Advocacy Network (ASAN) issued the following statement today: 

“Our hearts go out to the victims of today’s shooting massacre at Sandy Hook Elementary School in Newton, Connecticut and their families. Recent media reports have suggested that the perpetrator of this violence, Adam Lanza, may have been diagnosed with Asperger’s Syndrome, a diagnosis on the autism spectrum, or with another psychiatric disability. In either event, it is imperative that as we mourn the victims of this horrific tragedy that commentators and the media avoid drawing inappropriate and unfounded links between autism or other disabilities and violence. Autistic Americans and individuals with other disabilities are no more likely to commit violent crime than non-disabled people. In fact, people with disabilities of all kinds, including autism, are vastly more likely to be the victims of violent crime than the perpetrators. Should the shooter in today’s shooting prove to in fact be diagnosed on the autism spectrum or with another disability, the millions of Americans with disabilities should be no more implicated in his actions than the non-disabled population is responsible for those of non-disabled shooters. 

"Today’s violence was the act of an individual. We urge media, government and community leaders to speak out against any effort to spuriously link the Autistic or broader disability community with violent crime. Autistic Americans and other groups of people with disabilities persist in facing discrimination and segregation in school, the workplace and the general community. In this terrible time, our society should not further stigmatize our community. As our great nation has so many times in the past, let us come together to both mourn those killed by acts of heinous murder and defend all parts of our country from the scourge of stigma and prejudice.” 

Media inquiries regarding this shooting may be directed to ASAN at info@autisticadvocacy.org.

N.D. Ill.: Under ADAAA, Asthma Triggered by Strong Perfume Might Be Disability

A couple of weeks ago, Judge John A. Nordberg of the United States District Court for the Northern District of Illinois issued a ruling denying the defendants' motion to dismiss in Kobler v. Illinois Dept. Human Services, 2012 WL 5995836 (N.D. Ill., Nov. 30, 2012).  Kobler, a nurse who worked at a mental health facility operated by the defendants, alleged that they failed to accommodate her asthma, which was triggered by exposure to strong perfumes and fragrances.  The defendants moved to dismiss.  Among other things, they argued that Kobler's "asthma cannot qualify as substantially limiting if it is only triggered when she is exposed to a fragrance."  They cited "several cases holding that an intermittent flare-up is not enough to render a condition substantially limiting."  The court rejected that argument.  The court found persuasive Kobler's argument that "defendants' cases were decided before the ADA Amendments Act of 2008 expanded the definition of disability," and that "following the 2008 amendments, courts have found episodic conditions to be covered if they would substantially limit a life activity when those conditions were active."

Independent Reviewer's Report on Virginia Compliance with DOJ Olmstead Settlement

See this article, which begins:

So far, Virginia has met the requirements in a court settlement to reform the system of care for people with intellectual and developmental disabilities, according an independent reviewer’s report released this week. 

The reviewer, Donald J. Fletcher, stated that Virginia has shown “good faith effort” to comply with the agreement in the first seven months since a judge approved the settlement between the state and the U.S. Department of Justice. 

Federal attorneys charged that Virginia’s service system was failing hundreds of people living in large, out-dated institutions, as well as thousands of people living in the community without support services.

ThinkProgress on Medicaid Cuts and the ADA

It's always good when health wonks in the progressive media/activist world notice the ADA.  Here's a good post over at ThinkProgress Health about the ADA and cuts to Medicaid.

Check Out Ruth Colker's New Website

Ruth Colker (aka the doyenne of disability law) has a new website.  The first post is on possible changes to the DSM definition of learning disabilities.  Check it out!

A Harsh Assessment of the Accessibility of the New Kindle Fire

See this post from the National Federation of the Blind.  The harsh conclusion:

Amazon needs to stop burning blind readers with these half-hearted attempts at accessibility in all versions of the Kindle, including the Fire. What is needed now is for it to implement real accessibility, rather than expecting blind readers to accept a cassette tape equivalent in an era of multi-purpose tablets.

Florida Teen Dies After Disabled Mom Loses Custody

See this story by that title.  It seems to combine discrimination against parents with disabilities and the failure to provide community services to kids with disabilities.  Ugh.

Baker on CRPE on Charter Schools and Kids with Disabilities

A couple of weeks ago, I posted on a report by the Center on Reinventing Public Education that assessed the degree to which charter schools in New York State serve children with disabilities.  I wondered at the time whether someone would look at CRPE's data on a more granular level.  Bruce Baker of Rutgers has now done such an analysis.  Key takeaways:

The report asserts that differences in charter and district school special education rates are far smaller than is claimed in recent federal reports and other literature. The new report further asserts that location and grade-level differences lead to a mixed story regarding whether or not charter schools systematically under-enroll children with disabilities.

While the report does show that under-enrollment patterns vary by grade level and to some extent by location, it downplays the fact that the largest subset of charter schools in the sample—elementary and K-8 schools, most of which are in New York City—do systematically under enroll children with disabilities. What this report actually shows is that the vast majority of charter schools in New York state happen to be in New York City (76%) and happen to serve lower grades (73%), and these schools serve much lower percentages of children with disabilities than comparable traditional public schools in the same city or area within New York City. In an effort to undermine their own primary finding, the authors infer—without evidence or foundation—that charter elementary schools simply may be providing better early intervention. Those supposed interventions, in turn, would help these schools classify fewer children than their district school counterparts.

The report does not address whether variations in disabilities by type and severity exist between charter and district schools. As discussed below, this is a significant omission.

EEOC Sues Sony and Staffing Company for Firing Worker with Prosthetic Leg

See this EEOC press release, which begins:

The Equal Employment Opportunity Commission filed a disability discrimination lawsuit today against Staffmark Investment LLC and Sony Electronics, Inc., alleging that they terminated a woman with a prosthetic leg because of her disability, in violation of the Americans with Disabilities Act (ADA). 

According to John P. Rowe, the EEOC's district director in Chicago who oversaw the EEOC's administrative investigation, the EEOC found reasonable cause to believe that Staffmark and Sony fired Shanks because of her prosthetic leg. Staffmark, a staffing agency, assigned Dorothy Shanks to work on a temporary job for Sony at Ozzy Hessey Logistics' (OHL) facility located in Romeoville, Ill. Sony uses OHL laborers to package and/or inspect Sony products that are being shipped out. Despite the fact that she was working in the OHL facility, Shanks's supervisors were all Sony employees, who were also located at the OHL facility. 

On Shanks's second day of employment on the Sony job, a Staffmark employee told her that she was being removed from her assignment because they did not want anyone bumping into her, and that Staffmark would find her another assignment where she could sit. Staffmark never sent Shanks to work on any other job assignments even though Shanks repeatedly called Staffmark seeking work. 

The EEOC filed suit under the ADA after first attempting to reach a voluntary settlement with Staffmark and Sony through EEOC's conciliation process. The case, EEOC v. Staffmark Investment LLC and Sony Electronics, Inc, N.D. Ill. No. 12-cv-9628, was filed on Dec. 4, 2012, in U.S. District Court for the Northern District of Illinois, Eastern Division. Supervisory Trial Attorney Diane Smason and Trial Attorney Ann Henry will litigate the case on behalf of the EEOC. 

"The ADA requires that individuals with disabilities be judged on their ability to perform the essential functions of the job, with or without a reasonable accommodation," said Rowe. "Ms. Shanks performed her job with no difficulty, but was fired because of unjustified fears about her having a prosthetic leg. Firing employees because of baseless fears and stereotypes about their disabilities is illegal, and the EEOC will defend the victims of such unlawful conduct."

CRPD Fails in Senate

The Senate this afternoon voted down the Convention on the Rights of Persons with Disabilities (aka the Disability Treaty), with 61 votes in favor (all of the Democrats, plus 8 Republicans) and 38 opposed   (all Republicans).  With Senator Kirk still absent, the treaty needed 66 votes to obtain the constitutionally mandated two-thirds, so treaty supporters fell 5 votes short.  I'm not sure why they brought the treaty to the floor if they didn't have the votes, but that kind of issue is above my pay grade.  I will say that Senators Ayotte, Barrasso, Brown, Collins, Lugar, McCain, Murkowski, and Snowe should be proud for upholding our Nation's bipartisan tradition of supporting disability rights.  Senator McCain, in particular, gave a great speech (as did Senator Harkin among the Democrats).

Eleventh Circuit Upholds Right to Independent Educational Evaluation at Public Expense

A couple of weeks ago, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Phillip C. v. Jefferson County Board of Education.  In this case under the Individuals with Disabilities Education Act, the parents disagreed with the school district's assessment of their child's educational needs.  They obtained an independent educational evaluation (IEE).  Pursuant to the relevant Department of Education regulation, 34 C.F.R. 300.502, which provides that such an IEE will be performed at "public expense," the parents sought reimbursement for the evaluation from the school district.  The school district refused on the ground that the statute provides only that the parents shall be entitled to obtain an IEE, not that it shall be performed at public expense.  According to the state, the regulation thus went beyond the Department's authority under the statute.

The Eleventh Circuit rejected that argument:

As the Board notes, 20 U.S.C. § 1415(b) does not expressly state that agencies must pay for a parent’s IEE. See 20 U.S.C. § 1415(b) (stating only that a parent must “have an opportunity . . . to obtain an [IEE] of the child”). However, another section of the IDEA, 20 U.S.C. § 1406(b)(2), expressly requires the Secretary of Education to preserve any IDEA regulation that existed as of July 20, 1983 and provided protection for children:

The Secretary may not implement, or publish in final form, any regulation prescribed pursuant to this chapter that . . . procedurally or substantively lessens the protections provided to children with disabilities under this chapter, as embodied in regulations in effect on July 20, 1983 (particularly as such protections related to parental consent to initial evaluation or initial placement in special education, least restrictive environment, related services, timelines, attendance of evaluation personnel at [IEP] meetings, or qualifications of personnel), except to the extent that such regulation reflects the clear and unequivocal intent of Congress in legislation.

Id. § 1406(b)(2). One of the regulations in effect on July 20, 1983 expressly provided to parents “the right to an independent educational evaluation at public expense if the parent disagrees with an evaluation obtained by the public agency.”

By enacting 20 U.S.C. § 1406(b), Congress sought to “reaffirm support for the program and its existing regulations,” which included a parent’s right to an IEE at public expense. 129 Cong. Rec. 33,316 (1983) (statement of Rep. Biaggi); see also H.R. Rep. No. 98-410, at 21 (Oct. 6, 1983) (“[T]he current regulations which govern programs under [the IDEA] have received the strong support of Congress.”). Significantly, this reaffirmation was in response to proposed regulations that, in part, would have significantly curtailed a parent’s right to a publicly financed IEE by requiring public reimbursement “only where a hearing or reviewing officer determines that such an evaluation is necessary to resolve the issues in dispute in a hearing or review.” Assistance to States for Education of Handicapped Children, 47 Fed. Reg. 33836-01, 33841 (proposed Aug. 4, 1982) (emphasis added). Congress “remain[ed] strongly opposed to any attempts to alter current regulatory requirements which would result in diminished rights and protections for handicapped children under the [IDEA].” H.R. Rep. No. 98-410, at 21. It is clear that Congress enacted 20 U.S.C. § 1406(b) to ensure that the “Secretary cannot propose any regulations which . . . have the direct or indirect effect of weakening the protections for handicapped children under existing law and regulation.” 129 Cong. Rec. 33,316 (1983) (statement of Rep. Biaggi).

Moreover, subsequent to 1983, Congress reauthorized the IDEA in 1990, 1997, and 2004 without altering a parent’s right to a publicly financed IEE.  Under the re-enactment doctrine, “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.” Lorillard v. Pons, 434 U.S. 575, 580 (1978). This doctrine is particularly applicable here, where a parent’s right to a publicly financed IEE has endured since the Department of Education first implemented the IDEA. See United States v. Baxter Int’l, 345 F.3d 866, 887 (11th Cir. 2003).8 Accordingly, Congress has clearly evinced its intent that parents have the right to obtain an IEE at public expense. See 34 C.F.R. § 300.502.

Cuomo Creates Cabinet on Integrating People with Developmental Disabilities

See this article, which begins:

Gov. Andrew Cuomo issued an executive order Friday advancing the state’s efforts to place developmentally disabled people in integrated, community-based settings rather than state institutions. 

Cuomo’s order created a cabinet that will design a plan for how to implement federal law that aims to prevent disabled people from being segregated from the general population, both in where they live and how they spend their days. 

The cabinet, which includes officials from state agencies dealing with the disability community as well as several of the governor’s top aides, will present a plan to Cuomo in May. Roger Bearden, who Cuomo last year appointed chairman of the Commission on Quality of Care and Advocacy for Persons with Disabilities, will serve as the cabinet’s leader.

I like the focus not just on where people with disabilities live but on "how they spend their days."  Very important

Guest Prawfs Post on the Insanity Defense and Disability Rights

I'm guesting again at Prawfsblawg this month, though I'll continue to post here as well.  This is my first post of the month, on disability rights and the insanity defense.  Enjoy!

A Response to the Free Press on Deinstitutionalization

I seem to have done a number of long, discursive posts lately.  Here's another.

My local big-city paper, the Detroit Free Press, has done a great series of articles over the past several months regarding the lack of services for people with mental illness in Michigan.  The series is a good example of what quality, in-depth journalism can be.  But in an editorial last Sunday, the paper took a wrong turn.  Among some other proposals that are quite valuable, that editorial argues that the state should “put a moratorium on closing psychiatric beds” and “should seriously consider adding some” at the state’s psychiatric hospitals. 

That argument reflects the view that deinstitutionalization was the cause of the problems in the mental health system, and that stopping or reversing deinstitutionalization will help solve those problems.  That view is widely held.  But it is wrong.  In my recent Cardozo Law Review article, I showed that where deinstitutionalization has not fully achieved its goals, that is not because psychiatric hospitals are a particularly good setting for serving people with mental illness.  Rather, it is because states have too often seen deinstitutionalization as largely an opportunity to save money.  They have closed institutions, but they have not sufficiently invested in the services and supports that enable people with mental illness to flourish in their homes and communities.

As the Free Press's own reporting shows, Michigan has replicated this pattern.  An article on September 16 observed that despite the heavy burden that deinstitutionalization placed on community mental health services, the money for those services “never materialized.  In fact, mental health spending failed to keep pace even with inflation.”

To respond to the failure to fund community-based services by choosing reinstitutionalization could make sense only if people with mental illness were better served in psychiatric hospitals than in their homes and communities.  But we know that the opposite is true.  Over the past four decades, a robust evidence base has demonstrated that people with mental illness are more likely to thrive when they receive appropriate services and supports in the community than when they are institutionalized.  The federal Substance Abuse and Mental Health Services Administration has concluded that independence and participation in society, as well as community relationships and social networks, are essential to mental health recovery.

The evidence has also identified the services and supports that people with mental illness need to thrive in the community.  These include: supportive housing, which provides stable and permanent housing to people with mental illness in their own apartments, with services coming to them as needed; intensive and coordinated clinical services, such as those provided by multimember, multidisciplinary Assertive Community Treatment teams; and community-based crisis services, which respond to mental health crises, defuse them, and address their causes without triggering prolonged institutionalization.  All of these services exist in Michigan, and many people with mental illness in the state are flourishing outside of psychiatric hospitals because of them.  But the state has failed to make sufficient investments in these community-based services.  The Free Press's reporting has shown us the results.

More than anything else, it is the state’s failure to provide appropriate community-based housing that has led to the problems of homelessness and incarceration that the Free Press's reporting identified.  In its most recent “Grading the States” report, for example, the National Association for Mental Illness rated Michigan below average in providing housing for people with mental illness. 

The solution to this problem is not to reinstitutionalize people with mental illness.  Reinstitutionalization is more costly, and less effective, than providing services in the community.  And it will likely violate the ADA, as interpreted by the Supreme Court in the Olmstead decision.  The U.S. Department of Justice has been aggressively enforcing the Olmstead community-integration mandate in recent years.  (As all three of my readers know, I played some role in this effort before I left my DOJ appointment and returned to my teaching job a year and a half ago.)  Reinstitutionalizing people with mental illness could tie up the state in lengthy and expensive investigations and, potentially, litigation with the DOJ and private advocacy groups.

Michigan should not go down that path.  Instead, it should—finally—make sufficient investments in integrated supported housing and other community-based services so that Michiganders with mental illness do not have to live on the streets or in a jail or prison.