Thursday, June 30, 2005

The SG's Amicus Brief in Schaffer v. Weast . . .

. . . can be found here. In fact, Wrightslaw has this great resource page on the case, with links to lots of briefs.

Wednesday, June 29, 2005

Proposed New IDEA Regulations

Are here.

NDNY Holds NY DOCS Sick-Leave Policy Unlawful

In Fountain v. New York State Dep't of Correctional Services, 2005 WL 1502146 (N.D.N.Y., June 23, 2005), the district court held that a portion of the defendant employer's sick-leave policy violated Title I of the ADA. The plaintiffs challenged the defendant's policy that required all employees who returned from more than three days of sick leave to submit a statement from a doctor including a brief diagnosis of the employee's illness. Granting summary judgment to the plaintiffs, the district court ruled that the policy, which posed medical inquiries to incumbent employees, was not "job-related and consistent with business necessity" as required by 42 U.S.C. 12112(d)(4)(A). Although the court recognized that the defendant had strong interests in assuring that corrections officers were fit for duty and in preventing the spread of communicable diseases within their facilities, it held that the three-day diagnosis requirement did not meaningfully serve those interests.

Rehearing En Banc Denied in ADA v. FIU

The Eleventh Circuit yesterday denied rehearing en banc in Association for Disabled Americans v. Florida International University, a case I first noted here. The panel's opinion held that, as applied to public education, Title II of the ADA is valid legislation to enforce the Fourteenth Amendment. Since the panel's decision, the Fourth Circuit has issued an opinion agreeing, which I noted here.

Switching Sides, U.S. Backs District in IDEA Case Before Supreme Court

See this article by that title on Edweek's website. The article begins:

The Bush administration has reversed an earlier stance taken by the federal government on a legal appeal dealing with the burden of proof in special education cases, choosing to support the position taken by a Maryland school district in a case pending before the U.S. Supreme Court.

In a case that could shape the outcome of special education disputes across the country, the Supreme Court will decide in Schaffer v. Weast (Case No. 04-698) which side bears the burden of proof in disputes over children's individualized education programs, or IEPs. The question is whether parents need to prove that IEPs are inadequate, or whether school systems must show that the programs sufficiently meet students' needs.

In 2000, while the case was pending in a federal appeals court in Richmond, Va., the Department of Justice under President Clinton filed a brief arguing that school districts bear the burden of proving that the programs they develop are the best ones for particular students.

But in a friend-of-the-court brief filed with the high court on June 24, U.S. Solicitor General Paul D. Clement said that after a "a careful review" of administrative law and of the changes to the Individuals with Disabilities Education Act approved by Congress late last year, the government was "now of the view" that the burden of proof should fall on the party seeking relief in an IDEA administrative hearing.

I'll link to a copy of the brief when it's on the SG's website.

Tuesday, June 28, 2005

The ADA is an Issue in the Virginia Gubernatorial Race

See this interesting article:

Democratic gubernatorial candidate Tim Kaine today accused Republican rival Jerry Kilgore of undermining the rights of people with disabilities.

Kaine says that when Kilgore was the state's attorney general, he challenged the constitutionality of the Americans with Disabilities Act. Kaine says Kilgore took a freelance position that was not the position of the state in his 2003 challenge.

Kilgore replied by noting that Kaine served for years on Richmond's City Council and as mayor while dozens of public schools never met A-D-A requirements by providing such items as ramps, handicapped-accessible elevators, toilets and parking.

Kilgore also said his involvement in the A-D-A court challenge was a necessity to protect the state's sovereign immunity and avoid thousands of possible lawsuits.
I never thought I'd see the day.

Settlement of Cook County Medicaid Suit

See this article, which begins:

State officials agreed Monday to a multimillion-dollar upgrade in basic medical care given to Cook County's poorest children.

In settling a 13-year-old lawsuit filed in U.S. District Court, the state agreed to provide greater reimbursements to doctors who accept Medicaid patients.

Many doctors turn away new Medicaid patients, because the amount physicians get for providing that care is far less than what they would get from private insurance companies, the suit claimed.

Diebold Touch-Screen Voting Machines and People with Disabilities

See this interesting op-ed on the topic, which begins:

The Diebold voting machines being proposed for Volusia County don't meet the requirements of the Help America Vote Act. The shocking part is, they don't have to. It's only 2005 and the law doesn't go into effect until Jan. 1, 2006, so vendors are able to sell, this year, whatever type of voting systems they can get away with selling.

As I write this, states and counties across our nation -- including Volusia County -- are being sold a bill of goods with respect to their purchases of new voting-machine systems to meet the requirements of HAVA, which include accessible voting machines for all voters. Voting-machine vendors are having a heyday because they have recognized a loophole in HAVA that is large enough to drive a truck (or push a voting machine) through.

Unwitting states and counties, believing that the systems being presented to them are HAVA-compliant, are being duped. Unless vendors offer a specific guarantee of HAVA compliance, hundreds of millions of dollars in taxpayers' money may be squandered on equipment that will have to be scrapped or retrofitted at taxpayers' expense after Jan. 1, 2006.

While the proposed Diebold touch screens may provide accessibility for the blind, they are impossible to use for people with many other types of disabilities, including quadriplegics or those with severe manual impairments.

Latest Irish Disability Law Update

See this article in the Irish Examiner, which begins:

RETIRED High Court Judge Fergus Flood last night pleaded with the Government to scrap the Disability Bill, which is due to complete all stages through the Dáil today.

Justice Flood has chaired the Commission on the Status of People with Disabilities.

Mr Justice Flood said the Government could still withdraw the bill, which he said was flawed, and replace it with one which would equalise the situation between disabled people and everybody else.

He said: “This bill fails in that, an opportunity lost.”

And see this editorial from the same paper, which begins:

THERE is now a compelling case for President Mary McAleese to refer the Government’s skewed Disability Bill to the Supreme Court so that the constitutionality of this highly unpopular piece of legislation can be submitted to the acid test.

There are strongly-held views that in its present shape it will result in a new and dangerous form of discrimination on economic grounds being written into the Constitution, effectively denying the rights of children to be treated equally.

Special Ed Changes Concern Educators

The folks at PPI linked to this interesting article by that title about the revised IDEA.

Monday, June 27, 2005

Update on Pennsylvania IDEA Class Action

See this article, which begins:

Pennsylvania is edging closer to implementing a statewide monitoring system to ensure that 250,000 children with disabilities are learning in regular classrooms whenever it's possible.

Pennsylvania Secretary of Education Francis Barnes told a federal judge in Philadelphia Friday that the Pennsylvania Department of Education has the resources for such a system, which would be in place for five years.

The monitoring system is part of the provisional settlement agreement of an 11-year class-action lawsuit between the PDE and 12 Pennsylvania families, including three from Bucks.

PDE officials and parents on the plaintiff's side spoke in support of the agreement Friday at a public hearing before U.S. District Judge Eduardo Robreno, who said he may decide on the settlement in the coming months.

Known as the "Gaskin Case," the suit was filed by 12 families who said their children were denied the right to a free public education in regular classrooms with the necessary services whenever it was possible. The federal Individual with Disabilities Education Act protects that right.

Religious Schools Look to Fill Special-Education Needs

See this article by that title in today's Boston Globe.

Nice Piece on the Arizona Center for Disability Law

Is in the Tuscon Citizen, here.

More Irish Disability Law Smackdown

The Irish Examiner has this editorial. Some excerpts:

The Government preparing to ram its contentious Disability Bill through the Dáil before the summer recess.

Hopes of scuppering the legislative package are now focused on convincing the opposition parties to tear up and rewrite aspects of this skewed law if they should succeed in forming a coalition administration after the next general election.

* * *

It would be difficult to dispute claims that the bill is extremely restrictive in its present form since it will base the entitlements of disabled people purely on the availability of funding. Shamefully, the concept of rights-based legislation has been trampled upon by the coalition.

Going on past experience, there can be little confidence that official attitudes will change given the State’s persistent record of stone-walling justifiable demands made on behalf of people with mental or physical disabilities. The hard-hearted nature of this bill does not suggest they will be treated in a more caring manner by the present administration.

Friday, June 24, 2005

E.D. Pa. Holds Title II's Reasonable Modification Requirement Doesn't Apply to Demands for Wheelchair Accommodations on Trains

New on Westlaw: In Disabled in Action of Pennsylvania v. National R.R. Passenger Corp., 2005 WL 1459338 (E.D. Pa., June 17, 2005), the U.S. District Court for the Eastern District of Pennsylvania held that the transportation-specific provisions of Title II-B of the ADA take precedence over the general provisions of Title II-A. The plaintiffs were wheelchair users who wanted to travel together on defendants' trains in groups of a couple dozen. Title II-B of the ADA requires space for one person to sit in a wheelchair per car, as well as one space to fold and secure a wheelchair per car. Those accommodations were not sufficient to allow the plaintiffs to travel together on the same train, so the plaintiffs sought, as a "reasonable modification" required by the general provisions of Title II-A, the temporary removal of additional seats on the train to permit them to travel together. The district court held that the general reasonable modification requirement doesn't apply to matters specifically addressed in the transportation-specific provisions of Title II-B. It accordingly granted summary judgment to the defendant.

Monday, June 20, 2005

S.C. Suit Challenges Treatment of Prisoners with Mental Illness

See this story, which begins:

On Monday a Columbia advocacy group sued the state and the Corrections Department.

People with Disabilities said the prison agency doesn't properly care for mentally ill patients. The lawsuit alleges the prison system inflicted cruel and unusual punishment on prisoners in its custody.

The plaintiffs include three unidentified inmates in addition to the advocacy group. The group asked the court to order the state to design and pay for an adequate system of treating mentally ill inmates.

State prisons director Jon Ozmint did not immediately respond to questions Monday. The lawsuit also claimed prison guards aren't properly trained to handle mentally ill patients and that medication is often delayed or discontinued altogether.

While I Was Away, Part IV: C.D. Cal. Decides to Enact ADA Notification Act

On June 9, Judge Gary Taylor of the United States District Court for the Central District of California held that a prevailing plaintiff in a case under Title III (the public accommodations title) of the ADA will not be entitled to statutory attorneys' fees unless the plaintiff provided "a pre-litigation unambiguous warning notice to the defendant and a reasonable opportunity to cure the violation" before bringing suit. Doran v. Del Taco, Inc., 2005 WL 1389270 (C.D. Cal., June 9, 2005). That, of course, is exactly what several Members of Congress have proposed to require in the "ADA Notification Act." The proposed law has never passed Congress, but I guess the Doran court got impatient.

While I Was Away, Part III: Seventh Circuit Holds MMPI is a Medical Examination

On June 14, the Seventh Circuit issued its opinion in Karraker v. Rent-a-Center, Inc. The court held that the Minnesota Multiphasic Personality Inventory is a "medical examination" under the ADA and thus cannot be administered to an applicant for a new position (or promotion) before the employer offers the position to the applicant: "Because it is designed, at least in part, to reveal mental illness and has the effect of hurting the employment prospects of one with a mental disability, we think the MMPI is best categorized as a medical examination. And even though the MMPI was only a part (albeit a significant part) of a battery of tests administered to employees looking to advance, its use, we conclude, violated the ADA."

While I Was Away, Part II: GVR in Klingler

The other significant piece of disability law news is that the Supreme Court, in last Monday's orders list, granted cert. in Klingler v. Director, Department of Revenue, and summarily vacated and remanded the Eighth Circuit's decision for further consideration in light of Tennessee v. Lane and Gonzales v. Raich (the medical-marijuana case). Klingler is a challenge, under Title II of the ADA, to the $2.00 annual fee Missouri charges for the use of removable handicapped parking placards. The Eighth Circuit previously held that Congress lacked power under either the Commerce Clause or Section 5 of the Fourteenth Amendment to apply Title II in this context, and the Eighth Circuit will now have to reconsider those holdings. Kevin Russell has more here on SCOTUSBlog.

Sunday, June 19, 2005

While I Was Away, Part I: 4th Circuit Upholds Title II as Applied to Education

Wow, I go away for a week and a half, and all you-know-what breaks loose in the disability law world. The major news of the week has to be the Fourth Circuit's decision in Constantine v. Rector and Visitors of George Mason University. In Constantine, a unanimous three-judge panel upheld Title II of the ADA as valid legislation under Section 5 of the Fourteenth Amendment as applied to cases involving public education. The plaintiff was a law student who alleged that she was denied adequate accommodations for a migraine she experienced while she was taking her constitutional law exam. Given the composition of the Fourth Circuit, I don't know that we can assume that the panel's decision in Constantine will survive the inevitable en banc petition, but with the panel's decision, plus the Eleventh Circuit's recent decision in Association for Disabled Americans v. Florida International University, there are now two circuits that have upheld the Section 5 basis for Title II in the education context since Tennessee v. Lane; no post- appellate case has ruled to the contrary.

Wednesday, June 08, 2005

Brief Blog Hiatus

I'm doing a bit of travelling over the next week and a half, and I am largely cutting myself off from web access. I may post something over the weekend, but otherwise you shouldn't expect to see anything until June 20.

Tenth Circuit Holds Reasonable Accommodation Required in "Regarded As" Cases

Yesterday, the Tenth Circuit issued its opinion in Kelly v. Metallics West, Inc.. In that case brought under Title I of the ADA, the court held that employers have a duty to provide reasonable accommodation to all employees who satisfy the statutory "disability" definition, even those who satisfy the definition because they are "regarded as" disabled by their employer. The Tenth Circuit's decision in this case weighs in on a longstanding circuit split, albeit one the Supreme Court has passed up several chances to review (most recently this Term in Philadelphia Housing Auth. v. Williams).

Tuesday, June 07, 2005

Employment of Disabled Low in Japan

See this article by that title, which begins:

Disabled people employed in the private sector made up 1.46% of its total workforce last year, falling below the minimum rate of 1.8% set by the government, according to a government white paper released Tuesday. The number of disabled people employed by private companies totaled 257,939 as of June last year, up by 10,846 from a year earlier, the report said.

According to a 2003 survey by the Ministry of Health, Labor and Welfare, the average monthly wage of disabled people working at vocational aid centers totaled 22,000 yen, while their wage at private companies came to 250,000 yen — highlighting considerable wage disparities among disabled people. There are 6.5 million people in Japan with either physical, mental or intellectual disabilities, accounting for about 5% of the total population, the report said.

News on Spector

See this piece in the LA Times, this piece in the Christian Science Monitor, and this piece in the New York Times.

Monday, June 06, 2005

Partial but Significant Win for the Plaintiffs in Spector

This morning, the Supreme Court announced its judgment in Spector v. Norwegian Cruise Lines Ltd., which involved the question whether Title III of the ADA applies to foreign-flag cruise ships. In what the cliche calls a "highly fractured" decision, the Court delivered the plaintiffs a partial but significant win. Here's my quick read:

Justice Kennedy wrote the lead opinion. In a portion that wrote for the Court (joined by Justices Stevens, Souter, Ginsburg, and Breyer), his opinion held that Title III's plain text covers foreign-flag cruise ships, but that the statute would not apply in cases where its requirements conflicted with international legal obligations. In a portion that was joined only by Justices Stevens and Souter, Justice Kennedy concluded that Title III also would not apply to foreign-flag cruise ships to the extent that it interferes with a vessel's internal affairs and operations. (Justice Thomas, in a separate partial concurrence, agreed with that conclusion.) In that part of his opinion, Justice Kennedy recognized that most of the plaintiffs' claims had nothing to do with "internal affairs and operations"; only the claims involving physical barriers to access on board the ships had any plausible effect on "internal affairs and operations."

Justice Ginsburg, joined by Justice Breyer, concurred in part and concurred in the judgment. She would hold that Title III applies even to matters involving "internal affairs and operations" of foreign-flag cruise ships, so long as the statute's requirements do not actually conflict with international legal obligations.

Justice Scalia, joined by the Chief Justice and Justice O'Connor (and in part by Justice Thomas), dissented. He would hold that because some of Title III's requirements implicate the internal ofder of foreign-flag cruise ships, the statute could not apply to such ships.

(Disclosure: I provided some minor help to Tom Goldstein and Pam Karlan and their Supreme Court clinic on this case.)

Saturday, June 04, 2005

Disability Law in New Hampshire

See this op-ed in the Manchester Union-Leader, which begins:

LATE last month, the New Hampshire Senate voted to deny citizens with disabilities equal protection when it comes to employment. In a 12-12 vote, the Senate failed to afford individuals with disabilities the same right to equal employment opportunity as racial and religious minorities and women; indeed all citizens.

It was a shocking development. All the public testimony before the House and Senate committees supported this long overdue civil rights legislation. The bill had won the support of the House, and had been recommended by the State Human Rights Commission and the Governor’s Commission on Disabilities as well as the House committee (15–0 vote) and Senate committee (4 to 1 vote).

There is, however, one more chance for the 12 senators who voted against the bill and their colleagues to send a message that all of New Hampshire’s citizens deserve a fair shake when it comes to employment.

Irish Disability Law Smackdown Settling Down?

See this article, which begins:

The Government has agreed to significant changes in the forthcoming disability bill, it emerged tonight.

The Disability Legislation Consultation Group (DLCG) said it had received commitments from Taoiseach Bertie Ahern which would address some of the concerns expressed by its members.

“It will go someway towards that but here are still some outstanding issues,” said chairwoman Angela Kerins.

The legislation, which is currently going through the Seanad, will now contain new cabinet procedures which will see every piece of legislation discussed with disabled people in mind.

A disabled person who is assessed for services will be able to meet face-to-face with the liaison officer reviewing their service statement.

Complaints officers will have to give timetables to disabled people who are left waiting for assessments and other services, and an annual report will be presented to the Dáil and Seanad containing the number and profile of people awaiting assessment.

Inaccessibility in India

See this story about Delhi University. It begins:

For Nipun Malhotra, the disabled boy from Apeejay School, Noida, who scored 92 per cent in Class XII, Delhi University appears to be a “distant” dream. Admission into a college of his choice itself will not be a problem. What disturbs him and his parents is that no college in the university has facilities for the disabled.

It has been 10 years since the Disability Act, 1995 made it mandatory for a barrier-free environment and eight years since the University Grants Commission (UGC) announced a special grant for colleges to have disabled-friendly campus. But the university does not seem to have done anything other than to reserve three per cent seats in the disabled category.

Nipun, for example, has been unable to find a single college that is designed for wheelchair movement. “I am interested to pursue maths and accountancy,” says Nipun. “But I cannot study in DU as the colleges do not have the ramps.”

Disabilities Act a Big Boost to Millions

See this column by that title in the Bradenton Herald celebrating 15 years of the ADA.

Friday, June 03, 2005

Morris on Pursuing Justice for the Mentally Disabled

New on SSRN: Grant Morris, Pursuing Justice for the Mentally Disabled, 41 San Diego L. Rev. (forthcoming). The abstract:

This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as sanism, which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin's characterization of the problem and suggests other reasons for the phenomenon, including a belief that the civil commitment decision proved that the person was incompetent to make treatment decisions, and a belief that the decision on what treatment should be administered is a medical judgment to be made by the patient's doctor and should trump any patients' rights claim. The article concludes by considering whether aggressive advocacy would substantially improve the situation. Most patients accept - or are coerced into accepting - medication that their doctor prescribes. Because competency hearings are only conducted for those patients who assert a right to refuse medication, few patients would be affected by more aggressive attorney advocacy. Those patients who are successful in resisting coerced treatment are likely to be released from the hospital without an improvement in their mental condition and processed through the criminal justice system when they are detained in the future.

Thursday, June 02, 2005

Contribute to the Adam Milani Writing Award in Disability Law

Ruth Colker passed this along (for background, see this post):

The Adam A. Milani Writing Award in Disability Law is now accepting charitable contributions to endow the fund. The announcement of the writing award will take place in September 2005 with the first submissions due in June 2006. Award winners will be announced in September 2006 and each year thereafter. In order to be eligible to submit a paper for the award, the author must be enrolled as a law student during the academic year of the submission.

Contributions to the award should be sent to:

Office of University Advancement
Mercer University
1400 Coleman Avenue
Macon, GA 31207

Checks should be made out to "Mercer University" but they should either
include a note or put a note on the check that it is for the "Adam A.
Milani Award in Disability Law"

Hensel on Wrongful Birth and Wrongful Life Actions

Just out: Wendy Hensel, The Disabling Impact of Wrongful Birth and Wrongful Life Actions, 40 Harv. C.R.-C.L. L. Rev. 141 (2005). From the introduction:

The controversy surrounding wrongful birth and wrongful life litigation has existed for many years and is well documented. The courts faced with these issues have overwhelmingly rejected wrongful life actions while at the same time approving those for wrongful birth. In part, this has occurred because courts have found it more palatable to identify lost parental choice as the injury than to answer the metaphysical question of whether non-existence is ever preferable to life, however burdened. In contrast, many tort scholars who have addressed this issue have concluded that both wrongful birth and wrongful life actions should be permitted to go forward. They reason that both torts correspond well, if not perfectly, with traditional negligence principles.

In the midst of this robust public debate, there is one point of view that has received less attention--that of individuals with disabilities. Although much has been written about the impact of genetic testing as a general matter, surprisingly little legal scholarship has focused on the impact that wrongful birth and wrongful life actions might have on the community of people with disabilities. Often, the consideration tort scholars give to this viewpoint is confined to a discussion about the benefits of providing needed compensation to disabled individuals and their caregivers. Particularly in the wrongful life context, scholars have argued that the theoretical difficulty in identifying "life" as an injury does not outweigh the practical reality of an injured party who needs assistance.

The problematic aspects of wrongful birth and wrongful life actions, however, far exceed the conceptual difficulties that attach to these torts. Wrongful birth and wrongful life suits may exact a heavy price not only on the psychological well-being of individuals with disabilities, but also on the public image and acceptance of disability in society. Rather than focusing on a defendant's conduct, as in a traditional tort action, both wrongful birth and wrongful life suits ultimately focus on the plaintiff's disability, a status that is at least partially a societal construction. Juries in such actions are required to evaluate whether a particular disability is so horrible, from the nondisabled perspective, as to make plausible the choice of abortion or contraconception by the parent, or non-existence by the disabled child. Since only the child's diagnosis is ascertainable at this critical point in time, the centrality of impairment in defining personhood is reinforced and inescapable. Any benefits secured by individual litigants in court are thus taxed to the community of people with disabilities as a whole, placing at risk, in the drive for individual compensation, the gains secured by collective action and identity.

This Article argues that the costs of recognizing wrongful life and birth actions are too high.

Wednesday, June 01, 2005

People with Disabilities Told to Wait at Stairs in an Evacuation

See this article in the Hill, which Rick Hasen was nice enough to pass along. It begins:

Capitol Police have no specific procedures to assist in the evacuation of disabled staffers and visitors, according to a Capitol Police spokesman.
An interesting example of the general problem of failure to consider people with disabilities in emergency evacuation plans.

Equal Protection of the Laws?

I just ran across Browne v. SCR Medical Transportation Services, a case decided by the Illinois Court of Appeals two months ago. The case was a tort action brought by a person with cerebral palsy against the contractor that provides paratransit services for the Chicago Transit Authority. The plaintiff alleged that one of the defendant's drivers sexually assaulted her on two occasions when she was using the paratransit service. Because paratransit is a substitute for regular mass transit, she contended that the defendant was operating as a "common carrier" -- a status that, in tort law, would give the defendant a heightened responsibility to protect its passengers from harm.

The court rejected that argument. Because the defendant agreed to transport only those individuals with disabilities who could not use the regular mass transit service, the court held that it was not open to all comers as required to be a common carrier. The court relied on an earlier precedent that held that a contractor who provided school bus services for special education students was not a common carrier: "the bus company provided a specific service to a specific group of people because it only transported special education students between home and school by specific agreement."