DOJ Reaches Hearing Access Settlement with New Haven

See this article in the New Haven Register.  It begins:

The U.S. Department of Justice and the city have reached a settlement agreement that will ensure the city provides adequate services to individuals who are deaf or have difficulty hearing, according to a Justice Department statement. 

The agreement comes after two complaints alleged that the Livable City Initiative and New Haven Police Department failed to provide interpreters for individuals who are deaf or have difficulty hearing, during investigations, arrests or other actions, from 2008 to 2011, the release said. The Livable City Initiative is an agency focused on neighborhood enhancement and improvement through the enforcement of codes and space requirements. 

The Americans with Disabilities Act requires local governments and police departments to provide adequate services for persons with disabilities. The ADA also requires adequate training for staff.

DOJ Settlement Protects Medical Students with Hepatitis B Against Discrimination

See this article.  An excerpt:

Released last summer, the updated CDC guidelines were cited by the Justice Department in March as the agency announced a settlement with a New Jersey medical school over claims it violated the Americans with Disabilities Act by excluding two applicants with hepatitis B. While the state-run University of Medicine and Dentistry of New Jersey denied liability, it agreed to admit qualified HBV-positive students and provide training to staff. 

It was the first case in which the Justice Department pursued an ADA complaint on behalf of people with hepatitis B. 

"This is a historic decision," Block said. "We can now pull out the DOJ settlement and really guide these people: `What you're facing is discrimination, and here are the tools to help.' That's powerful."

Important Recent Department of Justice Olmstead Brief

Last week, the U.S. Department of Justice filed a brief opposing a motion for preliminary injunction in Illinois League of Advocates for the Developmentally Disabled v. Quinn, a case in which the plaintiffs argue that Olmstead forbids the State of Illinois from closing institutions for people with developmental disabilities.  The DOJ brief takes the position that the plaintiffs are seeking to turn Olmstead on its head:

The State of Illinois currently plans to close two State Operated Developmental Centers (Jacksonville Developmental Center and the Murray Developmental Center) in fiscal year 2013 and shift resources towards expanding community based care. The Plaintiffs, who are the guardians of individuals residing in these institutions, are opposed to the closure of State Operated Developmental Centers (SODCs). The Plaintiffs argue that the ADA, an integration statute enacted to end the pervasive segregation of persons with disabilities, conveys a right to remain in a segregated institution, as opposed to a right to live in the community. See Plaintiffs’ Memorandum of Law in Support of their Motion for Preliminary Injunction, p. 19 (“Pls. Memorandum”). Nothing in the ADA or its regulations, the Supreme Court’s decision in Olmstead, or any other case law supports this interpretation of the ADA and its integration mandate. Rather, the inverse is true.

In Olmstead, the Supreme Court concluded that the unjustified institutionalization and isolation of persons with mental disabilities violates the ADA. 527 U.S. 581, 597 (1999). The Supreme Court reached this conclusion based upon two “evident judgments.” Id. at 600. First, the Court observed that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Id. at 600. Second, the Court noted that “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 601.

Plaintiffs make much of Olmstead’s statement that there is no “federal requirement that community-based services be imposed upon those who do not desire them.” 527 U.S. at 602. However, to read that sentence in Olmstead as creating a right to institutionalization would turn the ADA and its integration mandate on its head and impermissibly create a new right under the ADA that was never intended by Congress. Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (Congress must “unambiguously confer a right” to support a cause of action under §1983 or an implied right of action.) The ADA does not confer a right to remain in any given institution.

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.

 

Arlington, TX, Sidewalk Access Lawsuit Settled

See this article, which begins:

After years of litigation, including an appeal to the U.S. Supreme Court, Arlington has reached a settlement with a group of residents who allege the city failed to ensure its sidewalks were accessible to people with disabilities. 

Richard Frame, a quadriplegic resident, sued Arlington in 2005 over the lack of accessible sidewalks and curb cuts that he said were required under the federal Americans with Disabilities Act. 

Over the years other plaintiffs from Arlington joined the case, citing problems such as broken, unconnected or obstructed sidewalks, missing or badly sloped curb ramps and inadequate handicap parking that made getting around town difficult for them. 

Under the settlement approved by the Arlington City Council late Tuesday, Frame does not receive any money. However, the city will pay about $310,322 in attorney fees and expenses for the plaintiffs.

For my earlier coverage of this case, see this post.

CNN Reports on Inaccessible Polling Places

See this story, which begins:

On Nov. 6, there's a very real possibility that many Americans with disabilities will not be able to vote because their local polling places will be inaccessible. 

Advocates for the disabled are worried that local governments aren't doing enough to prepare -- as are some of the small businesses that outfit polling sites with ramps.

NCD Issues Major Report on Parents with Disabilities

Jonathan Young and his colleagues on the National Council on Disability are really doing terrific work.  Today, the Council issued this must-read report entitled Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children.  From the executive summary:

These parents are the only distinct community of Americans who must struggle to retain custody of their children. Removal rates where parents have a psychiatric disability have been found to be as high as 70 percent to 80 percent; where the parent has an intellectual disability, 40 percent to 80 percent. In families where the parental disability is physical, 13 percent have reported discriminatory treatment in custody cases. Parents who are deaf or blind report extremely high rates of child removal and loss of parental rights. Parents with disabilities are more likely to lose custody of their children after divorce, have more difficulty in accessing reproductive health care, and face significant barriers to adopting children. 

Clearly, the legal system is not protecting the rights of parents with disabilities and their children. Fully two-thirds of dependency statutes allow the court to reach the determination that a parent is unfit (a determination necessary to terminate parental rights) on the basis of the parent’s disability. In every state, disability may be considered in determining the best interest of a child for purposes of a custody determination in family or dependency court. In theory, a nexus should always be shown between the disability and harm to the child, so that a child is taken from a custodial parent only when the parent’s disability is creating a detriment that cannot be alleviated. However, this is not the reality. 

Discrimination against parents with disabilities is all too common throughout history, and it remains an obstacle to full equality for people with disabilities in the present. Furthermore, this problem is not limited to traditional categories of disability, such as physical or sensory impairments. Discrimination by legal authorities and in child custody proceedings against parents with emerging disabilities is common as well. For example, as improved diagnosis and expanding diagnostic criteria have enhanced identification of children and adults on the autism spectrum, discrimination against parents diagnosed as autistic has emerged as a serious and ongoing systemic problem. As our society recognizes autism and other newly identified disabilities in a greater percentage of the next generation, the percentage of the American public susceptible to discrimination will increase. Parents who belong to these groups will experience the same abuses of their civil rights that parents with psychiatric disabilities currently experience; notably, status-based removals and deprivation of due process protections such as reunification services. 

This report recommends actions that should be taken immediately to ensure the rights of parents with disabilities and their children. Whether action is taken at the state or federal level, as an amendment or a new law, the need for action could not be more timely or clear.

Alabama Prison HIV Segregation Trial Begins

See this Reuters dispatch from earlier this week.  It begins:

Alabama, one of two U.S. states that segregate inmates with HIV from the rest of their prison population, will seek to defend the policy against a class action lawsuit headed to trial in federal court on Monday. 

The American Civil Liberties Union sued Alabama in 2011 for what the group contends is a discriminatory practice that prevents most HIV-positive inmates from participating in rehabilitation and retraining programs important for their success after prison. 

The state says the civil liberties group has failed to prove that there would be no significant risk of the infection being transmitted to other prisoners if inmates with HIV were fully integrated, according to court documents. 

An appeals court upheld the segregated housing policy in 1999, but ACLU attorney Margaret Winter said advances in treatment for HIV infection warranted the court taking another look at the practice.

DOJ and NFB Reach Settlement with Sacramento Public Library Over Inaccessible E-Readers

See Wednesday's DOJ press release, which begins:

The Justice Department announced today that it and the National Federation of the Blind have reached a settlement with the Sacramento Public Library Authority in Sacramento, Calif., to remedy alleged violations of the Americans with Disabilities Act (ADA). The agreement resolves allegations that the library violated the ADA by using inaccessible Barnes & Noble NOOK electronic reader devices in a patron lending program.

Under the settlement agreement, the library will not acquire any additional e-readers for patron use that exclude persons who are blind or others with disabilities who need accessible features such as text-to-speech functions or the ability to access menus through audio or tactile options. The library has also agreed to acquire at least 18 e-readers that are accessible to persons with disabilities. The settlement agreement also requires the library to train its staff on the requirements of the ADA.

“Emerging technologies like e-readers are changing the way we interact with the world around us and we need to ensure that people with disabilities are not excluded from the programs where these devices are used,” said Assistant Attorney General Thomas E. Perez.

Here's the NFB press release:

The National Federation of the Blind (NFB), the nation’s leading advocate for access to information by the blind and other people with print disabilities, announced today that a complaint filed by the NFB with the United States Department of Justice, Office of Civil Rights, against the Sacramento Public Library Authority has been resolved. The NFB filed the complaint last fall because the library was lending NOOK e-readers preloaded with e-books to its patrons. Unlike some other e-reading devices, the NOOK, which is manufactured and sold by Barnes & Noble,cannot be used by blind and print-disabled readers because it does not have text-to-speech capability or the ability to send content to a Braille display.

The goal of the agreement is “to provide a library e-reader circulation program where library patrons, with and without vision disabilities, are able to access and use the same technology to the maximum extent possible.” Under the agreement, the library will “acquire only technology that does not exclude persons who are blind or others” who need accessibility features such as text-to-speech or Braille output and the ability to access the device’s menus and controls independently. The library’s commitment is also in line with a resolution passed in 2009 by the American Library Association entitled Purchasing of Accessible Electronic Resources, which urged “all libraries purchasing, procuring, using, maintaining and contracting for electronic resources and services” to “require vendors to guarantee that products and services comply with Section 508 regulations, Web Content Accessibility Guidelines 2.0, or other applicable accessibility standards and guidelines.” 

Dr. Marc Maurer, President of the National Federation of the Blind, said: “We are pleased that the Sacramento Public Library Authority is showing leadership by ensuring that the e-books that it lends will be accessible to all of its patrons, including those who are blind or have print disabilities. E-books represent an opportunity for the blind to have access to the same books at the same time as our sighted friends, family, and colleagues, but sadly most e-book vendors have not designed their technology so that it can be used by the blind, despite the fact that it is not difficult or costly to do so. Libraries, schools, and other institutions have a legal and moral obligation to make sure that the content they deploy is accessible to the blind and print-disabled. If they meet these obligations by demanding accessibility from their e-book vendors, then accessibility will happen.”

The settlement is here.  This is a big deal in the efforts both DOJ and NFB have taken to ensure the use of accessible e-reader technology by ADA-covered entities.

SDNY Rules for Plaintiffs in NYC Voting Access Case

See this article, which begins:

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

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

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

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

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

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

* * * 

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

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

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

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

Kansas City Enters Project Civic Access Agreement with DOJ

See this article, which begins:

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

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

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

Horrid Student-on-Student Harassment Case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See this commentary on the Huffington Post.  An excerpt:

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

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

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

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

Goren on the Second Circuit's NYC Taxi Decision

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

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

Second Circuit Reverses Injunction in NYC Taxi Case

Yesterday, in Noel v. New York City Taxi and Limousine Commission, the United States Court of Appeals for the Second Circuit reversed the district court's grant of an injunction.  The district court held that the City violated Title II of the ADA by failing to provide meaningful access to taxi services for persons with disabilities.  It issued an injunction ordering the City to come up with a remedial plan and, in the interim, to issue new taxi medallions only to accessible taxis.

The Second Circuit reversed the injunction. It concluded "that, though the [Taxi and Limousine Commission] exercises pervasive control over the taxi industry in New York City, defendants were not required by Title II(A) to deploy their licensing and regulatory authority to mandate that persons who need wheelchairs be afforded meaningful access to taxis. The district court therefore erred in entering the temporary injunction."

For coverage of the ruling, see this article from the Wall Street Journal, this article from the New York Times, this article from New York Magazine, and this article from the New York Daily News.

DOJ Launches "Faces of Olmstead" Website

The website collects "[t]he personal stories of a few of the thousands of people whose lives have been improved by the Olmstead decision and the Department’sOlmstead enforcement work."  You can find it here.

Suit Challenges Handicapped Parking Fees in Passaic, NJ

See this article, which begins:

A controversial policy of charging disabled residents for handicapped parking spaces in Passaic is based on a state statute that was made null and void by federal law 20 years ago, according to a new lawsuit that, if successful, would affect towns across New Jersey. 

DIAL Inc., a non-profit advocacy group representing disabled residents in Passaic and Essex counties that is seeking to overturn the policy, named both the city of Passaic and the state of New Jersey as defendants in the suit filed in Superior Court. 

“Particularly in these times of budget crises, it seems governments are looking for every possible avenue to stick people with charges for services that previously were free,” said Edward A. Kopelson, DIAL’s lawyer. “This lawsuit is meant to stop government from imposing those fees.”

DOJ Investigating Transit Access in Cedar Rapids

See this story, which begins:

The U.S. Attorney’s Office in Cedar Rapids has opened an investigation into the city of Cedar Rapids’ compliance with the Americans with Disabilities Act. 

In a letter to Mayor Ron Corbett, the federal prosecutor’s office suggests that the probe centers on access to city buses for disabled people who use wheelchairs. 

The city is asked to produce any record of complaints against it in the last three years related to access to public transportation, “in particular, access to buses by individuals who use wheelchairs and may need additional time to board or exit from a bus.”