Ninth Circuit Holds Hawaii Must Provide FAPE to Kids Over 20

Last week, the Ninth Circuit issued an opinion in E.R.K. v. Hawaii Department of Education.  The case presented a challenge to a 2010 Hawaii statute, which barred students from attending public school after the last day of the school year in which they turned 20.  The plaintiffs, a class of Hawaiian students who were otherwise eligible for special education but over 20, challenged that statute as in conflict with the Individuals with Disabilities Education Act. The IDEA provides that states must provide a free appropriate public education (FAPE) to all children with disabilities through age 21. The IDEA does, however, contain a provision that allows a state not to provide special education to individuals age 18 through 21 if doing so "would be inconsistent with State law or practice, or the order of any court, respecting the provision of public education to children in those age ranges."  The state argued that its 2010 statute, which denied access to the public schools to all individuals who had turned 20 before the beginning of the school year, entitled it to the benefit of that exemption.  But the plaintiffs noted that, although the state denied students over 20 access to the public schools, it did provide them free access to the state-operated Community Schools for Adults, which provided GED and life-skills courses but did not provide special education.  The plaintiffs argued that if the state was going to provide this form of public education to students who had turned 20 before the beginning of the school year, that it must provide a FAPE, including special education and related services, to students with disabilities through age 21.  The Ninth Circuit agreed with that argument.

California Supreme Court Considers Insulin-in-Schools Case

See this coverage from the LA Times, which begins:

Several members of the California Supreme Court appeared wary Wednesday of requiring public schools to provide licensed nurses to administer insulin injections and other medications to schoolchildren.

The powerful California Nurses Assn. has argued that state law requires licensed nurses to provide insulin injections and other medicines, and two lower courts have agreed. The American Diabetes Assn. appealed. During a hearing, some justices on the state high court appeared skeptical of the nurses' arguments. 

Justice Ming W. Chin, noting that few schools have full-time nurses, questioned why districts should have to call in a licensed practitioner to administer a shot that a child's parents and physician have agreed could be given by an unlicensed but trained employee.

For full disclosure, I should note that when I was at DOJ I signed a brief in this case arguing that the state Nurse Practices Act, to the extent that it is construed to prevent unlicensed but trained school employees from administering insulin injections to students with diabetes, is preempted by the IDEA, Section 504, and the ADA.

Divided Fifth Circuit Panel Decides Section 504 Student-on-Student Abuse Case

On Friday, the United States Court of Appeals for the Fifth Circuit issued an opinion in Stewart v. Waco Independent School District, --- F.3d ----, 2013 WL 1091654 (5th Cir., Mar. 14, 2013).  The facts of the case (based on the complaint, which is all that is before the court at this point) are quite sad. Andricka Stewart has an intellectual disability, as well as speech and hearing impairments.  In 2006 to 2007, when the events at issue in the case took place, she was a student at a high school operated by the defendant school district.  Late in 2005, after what the court calls "an incident involving sexual contact between Stewart and another student," the district modified her IEP to limit her contact with male students and ensure that she remain under close supervision while at school.  But, her complaint alleged, she experienced a number of further incidents of sexual abuse by other students.  The Fifth Circuit's opinion describes those incidents, as alleged in the complaint:

In February 2006, a male student sexually abused Stewart in a school restroom. The District concluded that Stewart "was at least somewhat complicit" in the incident and suspended her for three days. In August 2006, school personnel allowed Stewart to go to the restroom unattended, and she was again sexually abused by a male classmate. Finally, in October 2007, a male student "exposed himself" to Stewart. The District suspended her again. In none of these instances, according to Stewart, did the District take any steps to further modify her IEP or to prevent future abuse.

Stewart sued under, among other statutes, Section 504 of the Rehabilitation Act.  The district court dismissed for failure to state a claim.

In a divided opinion, the Fifth Circuit reversed.  Judge Catharina Haynes wrote the majority opinion, for herself and Judge Jennifer Walker Elrod.  The majority first ruled that Stewart did not state a claim under a student-on-student harassment theory because the complaint did not allege sufficient facts to "plausibly state" that the school district was deliberately indifferent to known disability-based harassment.  

But the majority concluded that "Stewart may nonetheless state a § 504 claim based on the District's alleged refusal to make reasonable accommodations for her disabilities."  In so holding, the court put a helpful gloss on the "bad faith or gross misjudgment" standard that some circuits apply to Section 504 claims in the school context.  The majority explained that "bad faith or gross misjudgment" is not a requirement for 504 claims in this context but is instead simply an "alternative way[] to plead the refusal to provide reasonable accommodations."  In particular, the bad faith or gross misjudgment standard makes clear that a district has failed in its accommodation obligation not only when it explicitly refuses a requested accommodation but also "when it fails to exercise professional judgment in response to changing circumstances or new information, even if the district has already provided an accommodation based on an initial exercise of such judgment."  The majority explained that a plaintiff can establish a violation of the reasonable accommodation requirement -- including under the bad faith or gross misjudgment standard -- without showing that the defendant school district's actions rose to the level of the deliberate indifference that is required to make a district liable for student-on-student harassment.  

Applying those standards to the facts as alleged in the complaint, the majority held that Stewart had plausibly alleged a violation of the school district's accommodation obligations.  The majority explained:

She alleges that she was sexually abused on campus on three separate occasions after the District initially modified her IEP. Regardless of what role Stewart allegedly played in facilitating this misconduct, her IEP was designed to prevent such encounters, and Stewart can plausibly argue at this stage that its effective implementation would have obviated any need for discipline. The complaint also contains allegations that the District knew of specific aspects of the alleged abuse that could have given rise to further modifications. For example, the first two additional instances both involved Stewart's use of the restroom and effectively occurred only three months apart, assuming an intervening three-month summer break, supporting a plausible argument that the District could have modified Stewart's IEP to prohibit her from going to the restroom unattended. It is plausible that failing to further modify an IEP in such circumstances grossly departs from standard educational practice.

The majority nonetheless "emphasize[d] that courts generally should give deference to the judgments of educational professionals in the operation of their schools."  And it reaffirmed that "[i]solated mistakes made by harried teachers and random bad acts committed by students and other third-parties generally will not support gross-misjudgment claims."  But it concluded that the complaint plausibly alleged something more than that.

Finally, the majority held that Stewart was not required to exhaust administrative remedies under the IDEA before bringing her Section 504 suit -- an issue that the school district had not raised before the Fifth Circuit, but that was the centerpiece of the dissent.  The majority noted, first, that the school district had "arguably forfeited administrative-exhaustion arguments" by failing "to raise the issue on appeal or in its motion-to-dismiss briefing before the district court."  As the majority observed, the circuits are split on the question whether IDEA exhaustion is jurisdictional.  The Fifth Circuit has not yet weighed in on that conflict.  And the majority saw no need to weigh in on it here, because it concluded that Stewart's was not the sort of case under which exhaustion was required under 20 U.S.C. § 1415(l):  "In short, Stewart's gross-misjudgment theory of liability—premised on sexual abuse fostered by the district's alleged disability discrimination—does not appear to seek damages 'as a substitute for relief under the IDEA'"(citing the Ninth Circuit's relatively recent decision in Payne v. Peninsula School District).

Judge Higginbotham dissented.  He argued that exhaustion of IDEA's administrative remedies was required because "at the heart of Ms. Stewart's lawsuit is a dispute over the content and implementation of her IEP, a matter that clearly falls within the purview of the IDEA and is capable of resolution through its administrative processes."  "Exhaustion aside," Judge Higginbotham argued that "when an IEP is in place, its shortcomings must find their answer within the detailed remedial scheme under the IDEA unless those shortcomings are somehow of a meaningfully distinct character."  To support this point, he relied on the Supreme Court's statement in Smith v. Robinson that "Congress did not intend a handicapped child to be able to circumvent [the IDEA's] requirements or supplement [its] remedies . . . by resort to the general antidiscrimination provision of § 504."  Judge Higginbotham failed to note, however, that Congress overturned Smith in Section 1415(l) -- the very statutory provision on which he relied for his exhaustion argument.  Section 1415(l) provides that, so long as the applicable exhaustion requirement is satisfied, the IDEA does not restrict the substantive rights accorded to kids with disabilities under Section 504 "or other Federal laws protecting the rights of children with disabilities."

Given the active circuit splits over the IDEA exhaustion requirement, which I've noted before, this may not be the last we hear of this case.  But Friday's opinion certainly makes me want to renew my membership in the Catharina Haynes fan club.

CNN Argues that Requiring Captioning of Web Videos Would Violate Free Speech

Alice Wong passes along this interesting story about a Ninth Circuit argument yesterday.  It begins:

The 9th Circuit pressed advocates for the deaf to explain how their demands for captioned videos on CNN's website supersede First Amendment media rights. 

Hoping to keep a jury from hearing claims that it discriminates against more than 100,000 deaf web surfers, CNN had sought relief under California's anti-SLAPP (strategic lawsuit against public participation) statute. Such laws allow for the early dismissal of claims that are designed to chill the exercise of First Amendment rights. 

It claimed that the lawsuit threatens its right to gather and disseminate news on matters of public interest, and that the disability advocates cannot establish a likelihood of success in the suit.

Second Circuit Holds Timely Arrival at Work Not Necessarily an Essential Job Function

Earlier this week, the United States Court of Appeals for the Second Circuit issued an opinion in McMillan v. City of New York, --- F.3d ----, 2013 WL 779742 (2d Cir., Mar. 4, 2013).  Early in the opinion, Judge Walker summarizes the major take-away from the case:

It is undisputed that Rodney McMillan's severe disability requires treatment that prevents him from arriving to work at a consistent time each day. In many, if not most, employment contexts, a timely arrival is an essential function of the position, and a plaintiff's inability to arrive on time would result in his failure to establish a fundamental element of aprima facie case of employment discrimination. But if we draw all reasonable inferences in McMillan's favor—as we must at summary judgment—it is not evident that a timely arrival at work is an essential function of McMillan's job, provided that he is able to offset the time missed due to tardiness with additional hours worked to complete the actual essential functions of his job.

McMillan, who works for the city, has schizophrenia, which he manages with medication.  But the medication unfortunately can make him extremely drowsy in the mornings.  "As a result, he often arrives late to work, sometimes after 11:00 a.m. The City makes no allegations that McMillan malingers; instead, it is undisputed that his inability to arrive at work by a specific time is the result of the treatment for his disability."  For at least ten years, the city explicitly or implicitly approved McMillan's late arrivals, provided he made up his hours at the end of the day.  But in 2008, the city shifted course and stopped approving them.  At that point, McMillan made a number of requests for the city to approve his late arrivals once more, but his supervisors refused.  

McMillan sued under, among other statutes, the ADA.  Judge Rakoff of the United States District Court for the Southern District of New York granted summary judgment to the city.  Judge Rakoff deferred to the city's determination that arrival at work within a one-hour time frame was an essential function of McMillan's job.  He thus concluded that McMillan's requested accommodation (to arrive as late as 11, while making up the hours later) was unreasonable.

The Second Circuit reversed.  Here is the nub of its analysis:

The district court appears to have relied heavily on its assumption that physical presence is “an essential requirement of virtually all employment” and on the City's representation that arriving at a consistent time was an essential function of McMillan's position. While the district court's conclusion would be unremarkable in most situations, we find that several relevant factors here present a somewhat different picture: one suggesting that arriving on or before 10:15 a.m.—or at any consistent time—may not have been an essential requirement of McMillan's particular job. For many years prior to 2008, McMillan's late arrivals were explicitly or implicitly approved. Similarly, the fact that the City's flex-time policy permits all employees to arrive and leave within one-hour windows implies that punctuality and presence at precise times may not be essential. Interpreting these facts in McMillan's favor, along with his long work history, whether McMillan's late and varied arrival times substantially interfered with his ability to fulfill his responsibilities is a subject of reasonable dispute. 

This case highlights the importance of a penetrating factual analysis. Physical presence at or by a specific time is not, as a matter of law, an essential function of all employment. While a timely arrival is normally an essential function, a court must still conduct a fact-specific inquiry, drawing all inferences in favor of the non-moving party. Such an inquiry was not conducted here.

Paul Mollica has commentary on the case here.

Fourth Circuit Upholds PI in Personal Care Cut Case

Yesterday, the United States Court of Appeals for the Fourth Circuit issued an opinion in Pashby v. Delia, --- F.3d ----, 2013 WL 791829 (4th Cir., Mar. 5, 2013).  In this case, North Carolina had tightened the eligibility requirements for in-home personal care services (PCS) under Medicaid.  A number of PCS recipients filed suit under the Medicaid Act, the ADA, and Section 504 of the Rehabilitation Act.  The district court granted a preliminary injunction to halt the cuts and certified a plaintiff class.  The state appealed.  Yesterday's decision addressed the state's appeal from the preliminary injunction.

Upholding the district court's conclusion that the plaintiffs were likely to succeed on the merits of their ADA/Section 504 claims, the Fourth Circuit held that the district court had not abused its discretion in concluding that the new eligibility standards placed them at a significant risk of institutionalization.  After the new eligibility standards were put in place, the plaintiffs argued, it would be easier to obtain personal care services in a congregate "adult care home" than in one's own home.  The state argued that the ADA does not prohibit placing people with disabilities at risk of institutionalization.  The Fourth Circuit, deferring to the views of the Department of Justice, disagreed:

Because Congress instructed the DOJ to issue regulations regarding Title II, we are especially swayed by the DOJ's determination that “the ADA and the Olmstead decision extend to persons at serious risk of institutionalization or segregation and are not limited to individuals currently in institutional or other segregated settings.” U.S. Dept. of Justice,Statement of the Department of Justice on the Integration Mandate of Title II of the ADA and Olmstead v. L.C.,http://www.ada.gov/olmstead/q & a_ olmstead .htm (last updated June 22, 2011); see also Olmstead, 527 U.S. at 597–98 (“Because the Department is the agency directed by Congress to issue regulations implementing Title II, its views warrant respect.” (citation omitted)). Moreover, the Tenth Circuit has held that “there is nothing in the plain language of the regulations that limits protection to persons who are currently institutionalized.” Fisher v. Okla. Health Care Auth., 335 F.3d 1175, 1181 (10th Cir.2003). In sum, individuals who must enter institutions to obtain Medicaid services for which they qualify may be able to raise successful Title II and Rehabilitation Act claims because they face a risk of institutionalization.

The state also argued that adult care homes are not institutions.  But the Fourth Circuit, again deferring to the views of the Department of Justice, disagreed.  And the state argued that "continuing to offer in-home PCS to the class members and named Appellees constitutes a fundamental alteration due to the administrative and financial burdens it entails."  The Fourth Circuit rejected that argument, too.  The court "join[ed] the Third, Ninth, and Tenth Circuits in holding that, although budgetary concerns are relevant to the fundamental alteration calculus, financial constraints alone cannot sustain a fundamental alteration defense."

The Fourth Circuit also concluded that the plaintiffs satisfied the other three requirements for a preliminary injunction (irreparable harm, balance of hardships, and the public interest), so it agreed that a PI was warranted.  The court remanded, however, because it concluded that the preliminary injunction issued by the district court failed to satisfy Rule 65's specificity requirement.  It thus directed the district court to describe the enjoined conduct in greater detail.

Judge Agee dissented.  He concluded that the plaintiffs had not shown a sufficient risk of institutionalization to establish a likelihood of success on the merits.  He also concluded that the state had presented a sufficient fundamental alteration defense to make the plaintiffs unlikely to succeed.

Sixth Circuit Issues Strong Opinion on Accommodation of Deaf Lifeguard

Yesterday, the United States Court of Appeals for the Sixth Circuit issued an opinion in Keith v. County of Oakland, ___ F.3d ___, 2013 WL 115647 (6th Cir., Jan. 10, 2013).  Keith, the plaintiff, applied to work as a lifeguard at a wave pool operated by Oakland County, Michigan (an excellent wave pool, by the way -- my kids and I enjoy it very much!).  Keith has been deaf since birth.  Although he can detect noises through a cochlear implant, he principally communicates by using American Sign Language.  Keith completed lifeguard training (using an ASL interpreter to relay verbal instructions to him, but not to assist him with lifesaving tasks) and was certified as a lifeguard.  He applied for a lifeguard position at the wave pool.  The County extended him an offer of employment conditioned on passing a medical examination.  The examining doctor approved Keith for employment, but only "if his deafness was 'constantly accommodated.'"  

The County's recreation specialist, Katherine Stavale, contacted a risk management consultant, Wayne Crokus, to discuss whether Keith's deafness could be safely accommodated.  The court's opinion describes what happened next:

After these discussions, Stavale prepared a six-page outline setting forth the accommodations that she believed could successfully integrate Keith, and she sent it to Crokus for feedback. Stavale explained:

1. Keith will carry laminated note cards in the pocket of his swim trunks to communicate with guests in non-emergency situations.
2. Keith does not need to hear to recognize and rescue a distressed swimmer; experience reveals that distressed swimmers do not cry out for help.
3. Keith will use his whistle and shake his head “no” to enforce pool rules.
4. Keith will briefly look at other lifeguards on duty when scanning his zone to see if they enter the pool for a save.
5. Because Keith cannot use the megaphone or radio, another lifeguard will have this responsibility when Keith is working.
6. Keith will not work the slide rotation, which should not be a problem because this is one of the favorite rotations and many lifeguards like to work more than one slide rotation.
7. The Emergency Action Plan (“EAP”) will be modified, regardless of whether Keith is scheduled. To initiate the EAP, lifeguards will be required to signal with a fist in the air, opening and closing it like a siren. This will accommodate Keith and improve the effectiveness of the EAP for the entire team.

Crokus questioned Stavale on several of these accommodations and remained concerned about Keith’s ability to function effectively as a lifeguard. He stated, “without 100 percent certainty that [the proposed accommodations] would always be effective, I don’t think you could safely have [Keith] on the stand by himself.” Ultimately, Stavale and her supervisors decided to revoke the offer of employment.

Keith sued under the ADA and the Rehabilitation Act.  Although Keith offered an impressive array of expert evidence tending to demonstrate that his deafness would not impair his ability to perform the duties of a lifeguard, the district court granted the County's motion for summary judgment.

The Sixth Circuit reversed.  The appellate court first concluded that neither the County's doctor nor its risk consultant made an individualized inquiry into the nature of Keith's particular limitations and the possibility of accommodation.  It therefore questioned the district court's conclusion that the County had itself made a sufficiently individualized inquiry:  "Because it strikes us as incongruent with the underlying objective of the ADA for an employer to make an individualized inquiry only to defer to the opinions and advice of those who have not, we direct the district court to consider these questions on remand."

Next, in the most significant part of its opinion, the court of appeals concluded that Keith had presented sufficient evidence to create a triable issue regarding whether he could perform the essential functions of the lifeguard position.  I'll quote it extensively to show what a good job the plaintiff's lawyer did here:

With regard to supervising water activities and lifesaving, Keith has presented evidence from which a jury could reasonably find that he can communicate effectively despite his deafness. Like other lifeguards, Keith can adhere to the “10/20 standard of zone protection,” a scanning technique taught to lifeguards in which they must scan their entire zone every ten seconds and be able to reach any part of their zone within twenty seconds. This method is purely visual. Further, by passing Oakland County’s lifeguard training program and earning his lifeguard certification, Keith demonstrated his ability to detect distressed swimmers, which several experts testified is almost completely visually based.

In addition to communicating with distressed swimmers, there is evidence that Keith can effectively communicate with other lifeguards during lifesaving. Because he cannot hear another lifeguard’s whistle blow before going in for a save, as a modest modification, he could briefly look at the other lifeguards when scanning his zone.

Likewise, Keith has presented evidence that he can enforce safety rules. Verbal enforcement is usually impractical in a noisy water park, and most lifeguards rely on their whistle and various physical gestures, including shaking their head “no” for patrons to stop engaging in horseplay, motioning their hand backward for a patron to get behind the red line, and signaling the number one with their finger for “one person per tube.” Keith can use these same methods of enforcement.

Keith has also presented evidence that he can communicate effectively during emergencies with a modification to the EAP. To activate the EAP, lifeguards would signal with a fist in the air, opening and closing their fist in repetition. According to Stavale, this would improve the EAP for everyone, not just Keith. It would allow other lifeguards and staff to see the EAP visually if they are not in a position to hear it. Once activated, other lifeguards who are required to maintain their position would put their fist in the air and make the same signal.

Further, Keith has presented evidence that he can respond to patrons who approach him, at least at a level that may be considered essential for a lifeguard. He would carry a few laminated note cards in the pocket of his swim trunks with basic phrases such as, “I am deaf. I will get someone to assist you. Wait here.” He can also provide first aid in situations in which he can see the ailment requiring attention. Although there may be situations in which verbal communication is necessary, attendants are posted throughout the water park to assist patrons with basic needs and inquiries, suggesting that this is not an essential function of lifeguards, or at least reasonable minds could differ on this point. In addition, staff members are required to respond whenever a whistle is blown to signal a save.

Perhaps the most compelling evidence that Keith is “otherwise qualified” comes from his experts who have knowledge, education, and experience regarding the ability of deaf individuals to serve as lifeguards. They all opine that the ability to hear is unnecessary to enable a person to perform the essential functions of a lifeguard. The world record for most lives saved is held by a deaf man, Leroy Colombo, who saved over 900 lives in his lifeguarding career. One also cannot ignore that the American Red Cross certifies deaf lifeguards, and Gallaudet University, the only liberal arts university in the world dedicated to serving the needs of deaf individuals, has a lifeguard certification program.

Finally, the court of appeals concluded that Keith had presented sufficient evidence that a reasonable accommodation was possible, and it directed the district court to consider on remand whether the County had properly engaged in an interactive process with him.

It's not easy to win a case on behalf of a plaintiff with a disability seeking a public safety job.  This is a very significant victory for a deaf plaintiff against what seems to have been a reflexive and stereotype-infused exclusion.  

Iowa Appellate Court: ADAAA Covers Severe Allergies

See this story, which begins:

Iowa residents who suffer from occasional medical attacks such as those those from severe allergies and epilepsy are protected from discrimination by the federal Americans With Disabilities Act, the Iowa Court of Appeals ruled Wednesday. 

The case involved Shannon Knudsen, 30, a mother who in May 2011 sued Tiger Tots Community Child Care Center in Madrid, Iowa, after the facility declined to accept her child because of the child's tree nut allergy. 

A district court had ruled that the Iowa Civil Rights Act does not protect the child. The appeals court, however, said the lower court erred in not considering a 2008 amendment to the Americans With Disabilities Act that may protect the child from discrimination.

The opinion in Knudsen v. Tiger Tots Community Child Care Center Corporation can be found here.  What's interesting about the case is that the Iowa legislature did not amend its Civil Rights Act after Congress passed the ADA Amendments Act to explicitly incorporate the new federal definition of disability.  But the court held nonetheless "that federal law" -- including the ADAAA -- "establishes the framework for an analysis of 'disability' under state law."  Judge Gayle Nelson Vogel, dissenting, argued that the court was usurping the legislative function by reading the state statute as incorporating the ADAAA.

Seventh Circuit Applies Continuing Violation Theory in ADA Public Accommodations Suit

Yesterday, the United States Court of Appeals for the Seventh Circuit issued an opinion in Scherr v. Marriott International, Inc., ___ F.3d ___, 2013 WL 57857 (7th Cir., Jan. 7, 2013).  The case was a rather straightforward hotel-accessibility case.  In a renovation in 2004, the defendant had added a spring-hinged door closer to the bathroom doors in a number of its Courtyard by Marriott hotels.  Scherr uses a walker for mobility.  She visited one of defendant's renovated hotels, in Overland Park, Kansas, in 2006, and was injured when the spring-assisted door closed too quickly on her.  In this lawsuit, filed in 2010, Scherr sought injunctive relief under Title III of the ADA to remove the spring-hinged door closers in all of defendants' hotels that have them.  The district court concluded that Scherr had standing to challenge accessibility at the Overland Park hotel (as she has lots of family in the Overland Park area who live near the Courtyard hotel, and she often visits) but not at the other hotels (as she made no similar showing that she would ever visit them).  The district court also concluded that Scherr's suit was not barred by the statute of limitations.  But the district court held that the spring-hinged door closer, while not compliant with the Attorney General's 1991 ADA regulations, did comply with the Attorney General's 2010 ADA regulations.  Accordingly, the court granted judgment to the defendant.

The Seventh Circuit affirmed in all respects.  The most legally significant aspect of the Seventh Circuit's opinion is its discussion of the statute of limitations.  The court concluded that Illinois's two-year personal-injury statute of limitations applied to Scherr's claim.  But even though Scherr filed her suit more than two years after she encountered the barrier she challenged, the court nonetheless held that the statute of limitations did not bar the suit.  Because Title III authorizes plaintiffs to seek injunctive relief for actual or threatened violations of the statute, the court concluded that the existence of unlawful barriers to access is a continuing violation of the statute that continues to impose a fresh injury.

Although there is no clear circuit split (because the appellate cases involve different accessibility statutes), the courts of appeals have employed a number of different statute-of-limitations analyses to disability-access claims involving construction or renovation.  The Seventh Circuit's decision in Scherr is consistent with the Ninth Circuit's 2002 decision in Pickern v. Holiday Quality Foods Inc., which also applied a continuing violation theory to an ADA Title III accessibility claim.  Last year, the en banc Fifth Circuit decided Frame v. City of Arlington (blogged about here), which held that the statute of limitations in an accessibility suit under Title II of the ADA does not begin to run until the plaintiff knew or should have known of the inaccessibility of the facilities at issue.  In 2008, the en banc Ninth Circuit decided Garcia v. Brockway, which refused to apply a discovery rule or continuing violation theory to a case challenging inaccessible design and construction under the Fair Housing Act.  The Garcia court held that the statute of limitations begins to run at the end of the design and construction phase.  Also in 2008, the Third Circuit held that the statute of limitations on a challenge to inaccessible alterations to a facility under the public-transportation provisions of ADA Title II begins to run no earlier than the completion of the alterations -- though the court left open the possibility that the statute would begin to run even later if the plaintiff did not discover the violation by the time the alteration was completed.  That case was Disabled in Action v. Southeastern Pennsylvania Transportation Authority.

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.

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.

Seattle NPR Affiliate on Argenyi v. Creighton University

See this story, which begins:

A Seattle man says his dreams of being a doctor are being dashed because Creighton University Medical School in Nebraska won’t accommodate his hearing impairment. At issue is just how far an institution must go to comply with the Americans with Disabilities Act. 

The case, Argenvi v. Creighton University, is being heard in the 8th Circuit Court of Appeals in St. Paul, Minnesota. 

Michael Argenyi, who has profound hearing loss, claims the school is in violation of the Americans with Disabilities Act because it has not provided him with interpreters and a real time captioning service known as CART.

Washington Governor Gregoire Decides Not to Seek Cert. in M.R.

Big news, and a big win for ADAPT, ASAN, and other advocates who worked hard to encourage Governor Gregoire to let the Ninth Circuit's ruling stand.  See this AP story, which begins:

Washington Gov. Chris Gregoire has decided to not appeal a recent appellate court decision that struck down budget cuts reducing the amount of in-home care hours available to Medicaid clients in the state.

Here's the press release from Governor Gregoire's website:

Gov. Chris Gregoire today issued the following statement regarding the state’s decision to not appeal a 9th Circuit Court of Appeals ruling granting a preliminary injunction in the M.R. vs. Dreyfus case to the U.S. Supreme Court: 

“I have, and will continue to support the landmark U.S. Supreme Court Olmstead ruling. We heard the concerns of many advocates who feared that Supreme Court review of the 9th Circuit decision could have had broader negative implications. While any appeal to the U.S. Supreme Court would have made it clear that the state did not seek to undermine the Olmstead ruling, my team and I have worked tirelessly to avoid taking this case to that level at this time. 

“I worked closely with Health and Human Services Secretary Kathleen Sebelius to obtain the guidance we needed, and on the basis of that guidance Washington state believes we can balance our budget while maintaining the intent of the Americans with Disabilities Act and the Olmstead ruling.

“The letter today from HHS and the U.S. Department of Justice affirms that, with appropriate process, Washington state can reduce its service level and still be consistent with federal law. Attorney General Rob McKenna and I agree that it is in the best interest of all citizens to return to the federal district court to obtain a final decision, rather than seek the review of the 9th Circuit’s decision by the U.S. Supreme Court at this time. 

“I thank both Secretary Sebelius and U.S. Attorney General Eric Holder for their effort and assistance. In the meantime, I remain proud of our state’s leadership in providing personal care services. Even with moderate reductions, Washington state remains one of the most generous states in the nation to provide services that keep our elderly and people with disabilities in the community. And I’m proud of our Department of Social and Health Services, which used its head and its heart to ensure those with the greatest need were least affected.”

As I said when the Ninth Circuit denied rehearing, it was far from clear that the Supreme Court would have granted cert. in this case had the state filed a cert. petition.  Still, Governor Gregoire's decision not to file a cert. petition removes a potential threat to Olmstead litigation, and it has to be understood as resulting significantly from the pressure that organized people with disabilities put on the state.

Second Circuit: School District Can't Rehabilitate Inadequate IEP with Testimony that Services Beyond the IEP Would Have Been Provided

Last week, the Second Circuit decided a technical but important case about the Individuals with Disabilities Education Act and private school reimbursement.  The case, R.E. v. New York City Department of Education, involved the legal rules that apply to the following fact pattern: A school district offers a child with a disability an individualized education plan, but the child's parents reject the proposed IEP as inadequate, place the child in private school, and seek tuition reimbursement.  In the reimbursement proceeding, the parents argue that the IEP was, within its four corners, inadequate.  But the district argues that if the parents had allowed them to implement the IEP the district would have rectified the inadequacies that the plan had on paper.

The court addressed the question whether a school district can offer this sort of hypothetical or counterfactual testimony (which the court confusingly called "retrospective testimony") to rehabilitate an inadequate IEP.  The court answered that question in the negative.  The court reasoned that the IDEA gives parents a choice when presented with the IEP: accept the IEP and keep their child in public school, or unilaterally place their child in private school and seek reimbursement.  And the only way that this system can work is if parents can rely on what is in the written IEP:

In order for this system to function properly, parents must have sufficient information about the IEP to make an informed decision as to its adequacy prior to making a placement decision. At the time the parents must choose whether to accept the school district recommendation or to place the child elsewhere, they have only the IEP to rely on, and therefore the adequacy of the IEP itself creates considerable reliance interests for the parents. Under the Department’s view, a school district could create an IEP that was materially defective, causing the parents to justifiably effect a private placement, and then defeat the parents’ reimbursement claim at a Burlington/Carter hearing with evidence that effectively amends or fixes the IEP by showing that the child would, in practice, have received the missing services.

The court did say, though, that a reimbursement hearing need not be limited to the four corners of the IEP.  A school district can provide testimony "that explains or justifies the services listed in the IEP," but the court held that it cannot provide testimony "that materially alters the written plan."

Seventh Circuit Reverses Itself on Reassignment as Reasonable Accommodation

As I noted in this post a few months ago, "there is a persistent conflict in the circuits regarding the scope of an employer's duty, as a reasonable accommodation, to reassign an employee with a disability to a vacant position":

The Tenth and D.C. Circuits have held that, when an employee acquires a disability that makes her unable to perform the essential functions of her current position even with a reasonable accommodation, the employer has a duty to reassign the employee to an equivalent, vacant position for which she is qualified -- whether or not she is the "most" qualified applicant for that position. The Seventh and Eighth Circuits have held that the reassignment duty is satisfied so long as the employer gives the employee the opportunity to apply for a vacant, equivalent position, but that the employer may refuse to give the new position to the employee if she is not the most qualified applicant. The Supreme Court granted cert. to resolve this conflict in Huber v. Wal-Mart Stores in 2007, but it dismissed the writ of certiorari after the parties settled. (Disclosure: I was one of Huber's counsel in the Supreme Court.)

As I explained in that post, back in March a panel of the Seventh Circuit issued a decision in a case entitled EEOC v. United Air Lines, Inc., in which the EEOC had argued that the Seventh Circuit's precedent on reassignment had been undermined by the Supreme Court's ruling in US Airways, Inc. v. Barnett.  The Seventh Circuit in March explained that the court was bound by its longstanding precedent on the issue but invited the EEOC to file a petition for rehearing en banc to prompt the court to reconsider its precedent in light of Barnett.  The EEOC did file for rehearing en banc.  But instead of rehearing the case en banc the panel today simply issued a new decision overruling the court's prior precedent on reassignment.  The panel noted that it had circulated its new decision to all of the active judges on the court, and none of them requested en banc consideration.

Today's decision holds that the Seventh Circuit's prior precedent on reassignment "did not survive Barnett":

We reverse and hold that the ADA does indeed mandate that an employer appoint employees with disabilities to vacant positions for which they are qualified, provided that such accommodations would be ordinarily reasonable and would not present an undue hardship to that employer. We remand with instructions that the district court determine if mandatory reassignment would be reasonable in the run of cases and if there are fact-specific considerations particular to United’s employment system that would render mandatory reassignment unreasonable in this case. 

With this decision, the Seventh Circuit switches sides in the circuit split, joining the Tenth and D.C. Circuits and leaving the Eighth Circuit alone as the defender of the "most qualified" rule.  Although there is still a conflict in the circuits, this decision does suggest that the conflict might resolve itself in favor of what is now the prevailing position in the courts of appeals.  Although United might well file for certiorari in the Supreme Court, the diminishing nature of the conflict would counsel against the Court's granting review.

Updates on Medicaid Cuts Litigation

Today's news brings two articles on key challenges to state Medicaid cuts.  One is from the New York Times, reporting on a preliminary injunction issued to block certain cuts to Medicaid personal care services in New York City and state.  The article begins:

Charles Strouchler, a former publicity agent for classical-music management companies, has such severe multiple sclerosis that he has to be washed, fed, secured in a wheelchair during the day and turned in bed at night. For the past 15 years, he said, he has been able to live at home only because Medicaid pays for aides to take care of him around the clock. 

Earlier this year, he received a notice saying that his help was being cut to one live-in aide per day, who would sleep through the night, rather than two aides working for 12 hours each. Mr. Strouchler and others like him filed a class-action lawsuit, challenging reductions in care. 

While not ruling on the merits of the case, a federal judge in Manhattan decided on Tuesday that the plaintiffs had a “substantial likelihood” of proving that New York City and New York State had violated federal law in cutting back on Medicaid-financed personal care for hundreds of New Yorkers like Mr. Strouchler since last year.

The other, from KOMO in Seattle, reports on efforts by disability rights activists to convince Washington Governor Christine Gregoire not to seek cert. to review the Ninth Circuit's decision in M.R. v. Dreyfus, which blocked certain Medicaid cuts.  (I've blogged about M.R. before.)  From the story:

"There are a lot of vulnerable folks who rely on this service," Ganapathiraju said. "It's unfair, of course, that the situation is how it is. It's understandable that there are political forces at work." 

Ganapathiraju is referring to state-mandated budget cuts, which slashed in-home personal health care services for the elderly and the disabled. A judge upheld that the cuts are legal, but the 9th Circuit Court of Appeals overturned that decision, arguing that the cuts violate the Americans with Disabilities Act. 

The state has until September 17 to appeal the case to the U.S. Supreme Court, said Carl Peterson with the Autistic Self-Advocacy Network. Peterson joined with other advocates for the disabled Wednesday to call on the state and the governor to not appeal the decision. 

"What really is at stake here is the ability for somebody with a disability to stay and live fruitfully and as a positive part of the community instead of living in an institution," Peterson said. "We understand that the governor needs to save money and stuff but this is not the way to do it."

Tenth Circuit on Leave as a Reasonable Accommodation

Last week, the United States Court of Appeals for the Tenth Circuit issued an opinion in Robert v. Board of County Commissioners.  Robert worked for the county as an Adult Intensive Supervision Officer, which basically meant that she supervised adult offenders who were on probation.  The job required extensive time out of the office; between a quarter and a half of Robert's time was spent conducting site visits to her offenders' homes and workplaces.  In November 2005, Robert fell down a flight of stairs at work, which severely restricted her mobility.  She scheduled surgery for April 2006.  In the meantime, she could not conduct site visits, so her supervisors assigned her to work that could be done in the office.  Robert had her surgery as scheduled and took FMLA leave to recover.  That leave expired on July 5, 2006.  A couple of weeks later, Robert's doctor told Robert and her supervisor that she might be able to walk with a cane in a month.  But because Robert could not yet return to work, and she had exhausted her FMLA leave, the county fired her.  Robert sued the county.  Among other things, she claimed that her termination violated the ADA.  The United States District Court for the District of Kansas granted summary judgment to the county.

The Tenth Circuit affirmed.  In an opinion by Judge Carlos Lucero, the court concluded that supervising offenders in person was an essential function of Robert's job, and that she concededly could not perform that function at the time she was terminated.  The court acknowledged that a leave of absence could be a reasonable accommodation that would enable an employee to perform the essential functions of her job, but only if: (1) the employee "provide[s] the employer an estimated date when she can resume her essential duties"; and (2) the leave request "assure[s] [the] employer that [the] employee can perform the essential functions of her position in the 'near future.'"  The court concluded that Robert's leave request failed at least the first of these requirements:

There is no evidence in the record that Robert's employer had any estimation of the date Robert would resume the fieldwork essential to her position. Although the doctor's prognosis varied before and after the surgery, Naylor told Sloan on July 19, 2006—just after Robert's follow-up appointment and shortly before she was terminated—that Robert could be walking with a cane in three to four weeks. However, Robert questioned whether this time frame was “too fast,” and testified that she assumed her job would be protected “regardless of the length” of her recovery. In any event, the doctor's prediction that Robert could walk with a cane in a month's time does not suffice to assure the county that she would then be able to perform site visits and other fieldwork. As Robert herself recognized, she needed near-full mobility to ensure her safety as she visited felony offenders in their homes, workplaces, and treatment facilities, an activity that could be dangerous. Accordingly, the record shows that, at the time of her termination, the county did not have a reasonable estimate of when she would be able to resume all essential functions of her employment. As such, the only potential accommodation that would allow Robert to perform the essential functions of her position was an indefinite reprieve from those functions—an accommodation that is unreasonable as a matter of law.

This decision highlights the importance, for employees seeking leave as a reasonable accommodation, of being quite clear in the duration of the leave requested.  Of course, the expectation that an employee recovering from an injury or surgery can provide a clear date of return is not especially realistic.  But the Tenth Circuit's decision here is consistent with a trend in the courts to place the burden of uncertainty on the employee with a disability.

Eleventh Circuit Overrules Objections to Disney Segway Class Action Settlement

A few days ago, the United States Court of Appeals for the Eleventh Circuit issued an opinion in Ault v. Walt Disney World Co..  The case was brought as a class action to challenge Disney's refusal to permit Segways in its facilities.  After some back and forth, the district court certified a settlement-only class of everyone with a mobility impairment or disability who has brought, intends to bring, or may bring in the future a Segway into one of the Disney Resorts (including Disneyland, Disney World, and other Disney facilities).  And the district court approved a class settlement under which Disney would continue to refuse to permit Segways.  In that settlement, Disney agreed to "develop a four-wheeled, electric-stand up-vehicle ('the ESV') for those for whom a stand-up mobility device is a necessity and who are unable to utilize a mobility device that requires sitting, such as an electronic wheelchair or motorized scooter."  Notably, Disney committed only to provide 15 of these ESVs, and the terms of the settlement permitted Disney to charge patrons with disabilities for renting them.  The settlement also included "a nationwide waiver of declaratory or injunctive claims relating to Disney’s policy."  The case was certified as an injunctive class action under Federal Rule of Civil Procedure 23(b)(2); class members thus were not permitted to opt out of the class or the settlement.

A number of individuals with disabilities, organizations, state attorneys general, and the United States objected to the settlement.  (Disclosure: I supervised the relevant section of the Civil Rights Division at the Department of Justice during part of the time this litigation proceeded, and I had some involvement with the case in that capacity, though I was gone from the Department by the time the United States filed its brief on appeal.)  The district court overruled the objections and approved the settlement, and various objectors appealed.  In its opinion last week, the Eleventh Circuit affirmed.

In an opinion by Chief Judge Joel Dubina, the Eleventh Circuit first rejected the objectors' challenges to the class certification.  The objectors argued that the named plaintiffs' claims were not typical of those of the class, because the named plaintiffs only occasionally used Segways for mobility.  Myany absent members of the class, by contrast, rely on the Segway as their primary mobility aid.  The Eleventh Circuit waved this argument off:

Class members’ claims all stem from the same policy prohibiting the use of Segways® within Disney Resorts, and all claims require analysis of Title III to determine the outcome. While each class member may have a stronger or weaker claim depending upon his or her degree of reliance, we conclude that this alone does not make class representatives’ claims atypical of the class as a whole.

The Eleventh Circuit then turned to the question whether the district court abused its discretion in determining that the settlement was fair, adequate, and reasonable (the showing required for a settlement of a class action).  The appellate court found no abuse of discretion, because it concluded that the plaintiffs would have been unlikely to prevail if the case had been tried to a final judgment:

During an extensive fairness hearing before the district court, Hale [Disney's Chief Safety Officer] testified regarding the safety risks posed by the operation of Segways® in Disney Resorts. The very factors Hale considered before deciding that Segways® are too dangerous for operation in Disney Resorts are the very factors facilities are required to consider under the new regulation. See 28 C.F.R. 36.311(b)(2)(i)–(v) (requiring a public accommodation to consider the attributes of the device, the volume of foot traffic in the facility, the design and operational characteristics of the facility, whether safety restrictions on the use of the device can mitigate its danger, and whether operation of the device will harm the environment in determining if a specific device is allowable in the facility). The district court found that based upon this testimony Disney is likely to succeed at trial in showing that it has fulfilled its obligations under Title III. Objectors and the DOJ would like us to hold that this finding constitutes an abuse of discretion. We decline to do so. The issue before us is not who prevails over whom, but rather, the question is whether the district court abused its discretion in its finding regarding who was most likely to prevail at trial. We conclude from the record that there is no abuse of discretion.

The court also noted in a footnote that the Ninth Circuit had recently permitted an ADA challenge to Disney's exclusion of Segways to proceed.  (I blogged about that case here.)  But it distinguished that case on the ground that the Ninth Circuit hadn't reached the question whether there was a legitimate safety basis for Disney's policy.

A few quick points about this decision:

1.  The settlement here was extremely problematic on class action grounds.  The district court heard substantial testimony that the ESV -- the Disney-created alternative to the Segway -- just would not work for a number of the absent class members due to their height or the nature of their disabilities.  And many of the absent class members, unlike the named class members, use the Segway as their principal means of getting around.  Yet this class action settlement, brought by named plaintiffs whose disabilities were substantially different from the disabilities of that set of absent class members, forecloses those absent class members from challenging the no-Segway policy and provides them nothing.  That's a typicality/adequacy-of-representation problem if I ever heard one.

2.  In concluding that Disney would likely have prevailed on its safety defense if the case had gone to trial, the Eleventh Circuit completely failed to engage the analysis of the Department of Justice, which drafted and enforces the relevant ADA regulation:

The relevant question under the regulation is not whether “unrestricted” Segway use would raise safety concerns, see R.208 at 124, but “[w]hether legitimate safety requirements can be established to permit the safe operation of [Segways] in the specific facility.” 28 C.F.R. 36.311(b)(2)(iv). The regulation permits a public accommodation to impose reasonable time, place, or manner restrictions on the use of OPDMDs to ensure safe operation. See 28 C.F.R. 36.311(b)(2); 75 Fed. Reg. at 56,299. Specifically, the regulation prescribes several factors that a public accommodation must consider in determining whether permitting use of a particular class of OPDMDs is safe and reasonable. See 28 C.F.R. 36.311(b)(2). Among those factors are the vehicle’s speed, the design and operational characteristics of the facility, and the volume of pedestrian traffic, including variations in such volume during the day, week, month, or year. 28 C.F.R. 36.311(b)(2)(i), (ii), & (iii). In its commentary interpreting the regulation, the Department explained that “[o]f course, public accommodations may enforce legitimate safety rules established for the operation of [OPDMDs] (e.g., reasonable speed restrictions).” 75 Fed. Reg. at 56,299. The Department further emphasized that “public accommodations should not rely solely on a device’s top speed when assessing whether the device can be accommodated; instead, public accommodations should also consider the minimum speeds at which a device can be operated and whether the development of speed limit policies can be established to address concerns regarding the speed of the device.” Ibid.

Other safety-related restrictions may be permissible, depending on the circumstances and the particular facility. For example, Segway users may be required to use elevators, but not escalators, to move between floors, and they may be banned from using cell phones or headphones while operating Segways. See McElroy v. Simon Prop. Grp., Inc., No. 08-4041-RDR, 2008 WL 4277716, at *5, *7 (D. Kan. Sept. 15, 2008) (upholding such restrictions imposed by a shopping mall). It may also be reasonable in some facilities to temporarily suspend Segway use during periods of heavy crowds until the congestion clears. See ibid. And in some circumstances, a public accommodation might legitimately require an individual with a disability to perform a brief field test to show his ability to maneuver a Segway prior to using it in the public accommodation’s facility, particularly if the individual wishes to use the Segway when the facility is especially crowded.

Disney also failed to present a facility-specific analysis to establish the safety defense. As noted, the relevant inquiry is “[w]hether legitimate safety requirements can be established to permit the safe operation of the [OPDMDs] in the specific facility.” 28 C.F.R. 36.311(b)(2)(iv) (emphasis added); accord 75 Fed. Reg. at 56,299. “Facility” is broadly defined to include “any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.” 28 C.F.R. 36.104.

Even if legitimate safety concerns might justify a ban (or partial ban) on Segway use at one Disney facility, those concerns would not necessarily mean that Disney could establish a valid safety defense for other facilities that differ in size, configuration, or levels of pedestrian traffic. Disney’s Segway ban applies to a wide variety of facilities within its resorts, including six theme parks (and the multiple facilities found in each park), hotel complexes, restaurants, shopping districts, and individual stores. R.208 at 124-126. Disney’s evidence of Segways’ purported safety risk was limited the devices’ use at its theme parks. E.g., R.208 at 92, 94-95, 110-111; R.209 at 301-302. Disney’s general assertion that Segways, by design, pose a risk in a crowded venue is insufficient to establish that at every time of day, every day, all of Disney’s facilities have a crowd capacity that would preclude the safe operation of Segways. See R.208 at 77-78, 80-81, 88, 115-116. The district court thus erred in concluding that Disney’s evidence “likely” would establish this safety defense. R.252 at 8.

3.  Finally, even if this decision does not formally conflict with the Ninth Circuit's recent decision, the breadth of the class approved by the Eleventh Circuit, and of the release of claims in this settlement, creates a serious practical impediment to other cases challenging Disney's no-Segway policy.  I doubt this decision is the last word we'll hear on the matter.

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.

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.