Friday, September 29, 2006

C.D. Cal.: No Line of Sight Over Standing Spectators Required

New on Westlaw: Miller v. California Speedway Corp., 2006 WL 2742067 (C.D. Cal., Sept. 8, 2006). In this case, the court granted summary judgment to the defendant, which operates a speedway, opened in 1997, that (at least according to the plaintiff) does not provide wheelchair users with seating areas that had a line of sight to the race when people in front of them stand. The new version of the ADA Accessibility Guidelines (ADAAG) specifically requires that, in assembly areas where spectators are expected to stand, wheelchair seating areas provide a line of sight over standing spectators. But the ADAAG in effect at the time the speedway was built was less pellucid on the point; the ADAAG at the time required "lines of sight comparable to those for members of the general public." Courts have disagreed about whether that language requires wheelchair users to have a line of sight over standing spectators. The D.C. Circuit, in a case I argued back in the day, held that it does; the Third Circuit, in an opinion written by then-Judge Alito, held that it does not. Here, the district court agreed with the Third Circuit. I wouldn't be shocked if this gets reversed on appeal.

Thursday, September 28, 2006

Interesting Seventh Circuit Case on Zoning Accommodations

Yesterday, the Seventh Circuit issued a unanimous en banc decision in Wisconsin Community Services, Inc. v. City of Milwaukee. The case involved a challenge by WCS, which operates an inpatient and outpatient mental health clinic, to Milwaukee's denial of a special use zoning permit for a clinic. The court held that a plaintiff under Title II of the ADA can make out a case for the denial of reasonable accommodation without showing either a discriminatory intent or a class-based disparate impact (and Judge Easterbrook, concurring, emphasized this point). But it also held that the plaintiff must show that the requested accommodation is "necessary to alleviate discrimination," and is not just something that "helps the disabled." The court interpreted earlier cases as holding "that a modification is 'necessary' only when it allows the disabled to obtain benefits that they ordinarily could not have by reason of their disabilities, and not because of some quality that they share with the public generally." And it concluded that, "On the present record, WCS' inability to meet the City's special use criteria appears due not to its client's disabilities but to its plan to open a non-profit health clinic in a location where the City desired a commercial, taxpaying tenant instead. As far as this record indicates, the City would have rejected similar proposals from non-profit health clinics serving the non-disabled." Accordingly, the court chose to "remand to the district court so that it may afford the parties the opportunity to develop the question of whether WCS has been prevented, because of its clients' disabilities, from locating a satisfactory new facility." (All emphases in this paragraph are in original.)

This is one of the most complicated issues in disability discrimination law, but I have to say that I'm not sure how coherent is the line the Seventh Circuit is trying to draw here. A requirement that an accommodation be "necessary to alleviate discrimination" has to turn on some understanding of what is "discrimination." The court quite rightly says that "discrimination" for purposes of the ADA can't be limited to intentional discrimination or practices that have a disparate impact on an entire class of people with disabilities -- disability is individualized, and something could exclude me because of my disability without having any effect on other folks with disabilities. But then when it comes to applying its test, the court seems to fall back on an intentional-discrimination view: Because health clinics that serve the nondisabled would also be denied the permit, there's no evidence that an accommodation that would grant the permit to WCS would be necessary to avoid discrimination.

But I would think that the reasonable accommodation requirement would take a different view of discrimination. If I need a particular kind of chair and desk because of my disability, and I work for an employer who refuses all special requests for office furniture, I'm in the same position as WCS's constitutents were here -- nondisabled people would be denied the same thing I asked for. But like WCS's constituents here, my disability would give me a greater need for the accommodation -- I can't work without the chair and desk; for them it's a matter of convenience. Similarly, WCS's constituents can't live in the community without WCS having clinics around; for people who would visit "
non-profit health clinics serving the non-disabled," the stakes aren't as high. To fail to take that into account seems to me to miss the point of the accommodation requirement.

Wednesday, September 27, 2006

New Article on Miranda Warnings for Deaf Suspects

New on Westlaw: Aviva Twersky-Glasner, Miranda Warnings and Deaf Suspects: It is Not Just a Matter of Translation, Crim. L. Bull., Sept.-Oct. 2006, at 3. The introduction:

A police officer reading Miranda rights to someone can appear robotic. But there is nothing routine when the suspect is a deaf person. Deaf suspects can effectively lose their constitutional rights in the time it takes to raise an eyebrow. The conceptual and linguistic difficulties of deaf suspects-whose first language is often American Sign Language-cannot be overcome by direct translation into written English or manually coded English. English is primarily a spoken language. All hearing children of English-speaking parents absorb it unconsciously, starting from the moment of birth. They are surrounded with English; bombarded with it from all sides! They listen; they imitate. Effortlessly, it seems, they begin to put together grammatically correct sentences well before they learn to read. Children who are born deaf or early-deafened are excluded from this process because they cannot hear.

Deaf people thus face tremendous challenges within the criminal justice system. Foremost among these challenges is their ability to understand what is being said to them, as well as their ability to communicate their thoughts and feelings. This inability to understand and communicate is, primarily, linguistic, which has nothing to do with overall mental status, intelligence, or competence.

When confronted by law enforcement officers issuing a Miranda warning, a deaf person's behavior may deviate from the generally expected norm because a prelingually deaf person grows up in a world of communicational and cultural differences. The deaf community forms a "Deaf Culture" that is recognized by many as analogous to a minority culture. A deaf person cannot be fairly judged using the same criteria employed for a hearing person. The experience of deafness impacts a person's entire world. Being deaf means more than just being unable to hear.

This Article will address the inherent difficulties in administering the Miranda warnings to deaf suspects. To that end, I will delineate historical and cultural issues of the deaf community, linguistic competence, and legal requirements.

Judge Thompson: ADA Title II Doesn't Validly Abrogate Sovereign Immunity in Employment

Answering a question technically left open by the Supreme Court's decision in Board of Trustees v. Garrett, Judge Myron Thompson (one of our greatest judges) of the Middle District of Alabama held Monday that Title II of the ADA does not validly abrogate state sovereign immunity in cases involving employment. The case is Leverette v. Alabama Revenue Dept., --- F.Supp.2d ----, 2006 WL 2730431 (M.D.Ala., Sept. 25, 2006). The key analysis, which is hard to disagree with, is: "it would be illogical to find that history of state discrimination against the disabled in employment is insufficient to permit Congress to enact Title I, but that that same history is somehow sufficient to allow Congress to fashion Title II."

Wednesday, September 20, 2006

Government Supports Parents' Cert. Petition in IDEA Case

As Lyle Denniston reports over at SCOTUSblog, the Solicitor General just filed a brief, pursuant to the Supreme Court's invitation, expressing its view regarding whether cert. should be granted in Winkelman v. Parma City School District. The case presents the question whether parents of children with disabilities can prosecute actions in federal court pro se under the Individuals with Disabilities Education Act. The government's brief urges the Court to grant cert. and hold that parents can proceed pro se under the IDEA.

Wednesday, September 13, 2006

Testimony at ADA Oversight Hearing

Today the Subcommittee on the Constitution of the House Committee on the Judiciary held an oversight hearing on the ADA. You can access information about the hearing, including the (in some cases lengthy) prepared testimony of Tony Coelho, Robert Burgdorf, Naomi Earp, and Harry Horner, at this link.

Tuesday, September 12, 2006

Sixth Circuit Obesity Decision

This morning, the Sixth Circuit issued its decision in EEOC v. Watkins Motor Lines, Inc. The EEOC had brought suit on behalf of a worker who claimed he had been fired because of his morbid obesity (he weighed up to 450 pounds). The Sixth Circuit held that the worker did not have a "disability" for purposes of the ADA, because he did not show that his obesity had a "physiological cause" and therefore qualified as a "physiological disorder." Although the EEOC had shown that the worker's weight was more than 100% greater than the norm (sufficient for a diagnosis of morbid obesity under the traditional definition), they failed to show that the weight was "the result of a physiological condition."

This decision seems to me quite confused, though it's a confusing area so I cut the court some slack. What does it mean to say that morbid obesity has a "physiological cause"? All of our behavior has some physiological cause, if only from hormones and brain activity. And there's lots of reason to believe that brain proteins that alter appetite and activity levels, not to mention genetics, are substantial contributors to morbid obesity. More broadly, every fact about our body is by definition physiological. And morbid obesity, being a condition of one's physiology, is by definition a "physiological condition."

So the problem can't be that the worker's morbid obesity had no "physiological cause" or was not a "physiological condition." The problem has to be that he had no physiological "disorder." But what does that mean? The theory of "disorder" can't be a condition that has some identifiable organic etiology, or most "syndrome"-type conditions would be ruled out. We often just don't know what the etiology of a particular condition is, even when doctors diagnose it, recognize that it calls for treatment, and treat it. For it to make any sense, I think "impairment" has to be defined medically -- according to what are the conditions that are the basis for recognized medical (and psychological, since the statute includes both physical and mental impairments) diagnoses. On that score, morbid obesity that meets clinical criteria should always be an "impairment" -- which doesn't mean it will always be a "disability," as the plaintiff will still have to show actual or perceived substantial limitation of a major life activity.

Thanks to How Appealing for the tip.

Friday, September 08, 2006

Hensel and Jones on Mental Illness Stigma and the ADA

New on Westlaw: Wendy F. Hensel & Gregory Todd Jones, Bridging the Physical-Mental Gap: An Empirical Look at the Impact of Mental Illness Stigma on ADA Outcomes, 73 Tenn. L. Rev. 47 (2005). From the introduction:

This Article represents one of the first attempts to ascertain empirically whether mentally-impaired litigants experiencing psychiatric disorders are disadvantaged vis-a-vis those with physical impairments in establishing membership in the protected class under the ADA. Part I provides the background for the study by identifying and discussing the historical stigma and stereotypes associated with mental illness and psychiatric impairments which continue to thrive today. Particular attention is paid to the potential impact such stigma may have in an employment context, and the challenges it creates for impaired employees in the workplace. Part II scrutinizes the legislative history of the ADA to determine whether evidence of such stigma was present during the legislative process, identifying the reluctance of several lawmakers to extend protection to people with psychiatric impairments. Part III reveals the results of an empirical study of all Title I district and circuit court decisions, available in LexisNexis or Westlaw, in three appellate circuits over two discrete two-year time periods, which directly address whether litigants have established class coverage under the ADA. The study compares the success rates of physically and mentally impaired litigants in an attempt to answer whether individuals with psychiatric disorders face systemic challenges that are not shared by physically-impaired litigants. Part IV proposes possible explanations for the surprisingly comparable success rates between the two tested groups, examining subtle sources of continuing stigma that may explain the unexpected results. Part V concludes with proposals for future research and action by advocates to ensure that people with mental illness are able to secure the full and equal protection from discrimination that is the promise of the ADA.

For my long-ago take on stigma and the ADA, see this article.

Important Web Accessibility Ruling

See this article, which begins:

A federal judge ruled Wednesday that Target Corp. may be sued if its Web site is inaccessible to the blind, allowing a disabilities class action suit against the retailer to go forward.

The Minneapolis-based company unsuccessfully sought a dismissal of the action in U.S. District Court for the Northern District of California, arguing that that only its stores are covered by disabilities laws

The court ruled instead that all services provided by Target, including its Web site, must be accessible to the disabled.

The suit brought by the National Federation of the Blind charges that Target's Web site is inaccessible to the blind, and therefore violates the Americans with Disabilities Act as well as California state laws.

Thursday, September 07, 2006

Our Hedonic Damages Paper

The lovely and talented Professor Schlanger and I have just posted a draft of our piece, Hedonic Damages, Hedonic Adaptation, and Disability, on SSRN. You can access it here. The abstract:

This article contributes to the broad debate over "adaptive preferences" in law, economics, and political philosophy by addressing an important ongoing controversy in tort law. Hedonic damages compensate for the lost enjoyment of life that results from a tortious injury. Lawyers seeking hedonic damages in personal injury cases emphasize their clients' new status as compromised and damaged persons, and courts frequently uphold jury verdicts awarding hedonic damages to individuals who experienced disabling injuries based on a view that disability necessarily limits one's enjoyment of life. This view is consonant with a general societal understanding of disability as a tragedy and of people with disabilities as natural objects of pity. But a rich psychological literature demonstrates that disability does not inherently limit enjoyment of life to the degree that these courts suggest. Rather, people who experience disabling injuries tend to adapt to their disabilities. To be sure, the views of people with disabilities about their own quality of life are classic adaptive preferences. Accordingly, one might suggest that the legal system should disregard those views. But we argue that the legal system goes wrong by so devaluing the experience of people with disabilities. When courts award damages based on the (nondisabled person's) view that disability is tragic, they distract attention from the societal choices and stigmas that attach disadvantage to disability; they also make it harder for people with disabilities to make hedonic adjustments to their conditions. For deterrence and compensation reasons, people who experience disabling injuries should be able to recover for their physical pain; for medical expenses and the cost of assistive technology and personal assistance; for the opportunities society denies people with their conditions; and for the effects of social stigma. But they should not recover for any purported effect of disability on the enjoyment of life.

Ed. Department Gives Primer on IDEA Regulations

See this article from Ed Week. It begins:

After two days of carefully outlining changes in federal special education policy wrought by recently unveiled regulations, Department of Education officials last week acknowledged that they weren’t ready to give an audience of special educators what it wanted most: answers to hundreds of specific questions.

The Education Department’s office of special education programs planned its annual leadership conference to give school, district, and state special education officials a primer on the regulations covering the 2004 reauthorization of the Individuals with Disabilities Education Act, the federal law that governs the education of 6.7 million students in special education. The regulations were released Aug. 3 and were published in the Federal Register on Aug. 14. ("Final IDEA Regulations Clarify Key Issues," Aug. 9, 2006.)

But to provide more details, OSEP said it is taking the regulations on a road trip.

The department will hold three regional meetings devoted to implementation issues in January and February. In addition, the department plans eight informal public meetings around the country to introduce the regulations to the public.

The first of those public meetings will be held Sept. 26 in Charlotte, N.C., and Sept. 27 in Tampa, Fla. Additional gatherings will be held in Philadelphia, Seattle, Minneapolis, Dallas, Denver, and Sacramento, Calif., but the dates have not yet been set.

“It was an idea to reach a broader audience, to get out and get very personal,” Alexa Posny, the director of OSEP, said in an interview. “I’m hoping it’s community members who are there—people who would not ordinarily come to a conference like this.”

Also, OSEP unveiled a Web site,, which officials say will be a frequently updated repository of information related to the IDEA regulations, including video interviews, question-and-answer sections, and links to government-funded agencies that provide technical assistance to schools, states, and parents.

Normally, the annual OSEP conference, which was held Aug. 28-30 this year, might focus on giving practical information to special educators, Ms. Posny said. But with the regulations released just two weeks before this year’s conference, she said, “this was a very intentional overview.”

No Surprises

Still, she wanted attendees to leave with the idea that the regulations have been made as user-friendly as possible, and that the Education Department considered all of the more than 5,500 public comments submitted in response to draft regulations.

“One comment from one person absolutely could have made a difference,” Ms. Posny said. “Every one of them was read, and every one of them was responded to.”

Another goal was to let state and local special education directors know there is nothing to fear in the new regulations, said Ms. Posny, a former deputy commissioner of education in Kansas. What special educators saw in the 2004 renewal of the IDEA and in the proposed regulations are in the final regulations, she said.

Justice Department Gives Oakwood Five More Years to Shape Up

See this article by that title from the Ragged Edge website. It begins:

The U.S. Department of Justice has reached a settlement agreement with the state of Kentucky giving it five years to make changes to ensure that the 254 residents at Communities at Oakwood are protected from harm, and have adequate supports and services.

The settlement may mean little, however, if the U.S. Centers for Medicare and Medicaid decides this month to withdraw $43 million in federal funding for the facility.

The Justice Department has been monitoring conditions at Oakwood since 2001, when federal investigators found widespread problems of abuse and neglect of the adults with developmental disabilities housed at the institution. That led to a 2004 "memorandum on understanding" signed by state and Justice Department officials designed to improve conditions.

Conditions have not improved. In fact, since January 2005, the state's own inspector general with the Cabinet for Health and Family Services has given Oakwood its most serious 'Type A' citation 22 times for abuse and neglect. In the past two years, 15 Oakwood employees have been charged with mistreating residents. Just last month, one former employee was sentenced to two years in prison for abusing a resident.

According to a DOJ statement released Thursday, the new agreement "replaces and strengthens" the 2004 out-of-court settlement. Justice Department officials said key differences include the fact that this time a federal judge will monitor conditions at Oakwood, and that the state could be found in contempt of court and fined if those conditions are not improved.

However, Wes Butler, general counsel for Kentucky's Cabinet for Health and Family Services, told the Lexington Herald-Leader that Thursday's settlement agreement is nearly identical to the 2004 memorandum of understanding.

Wednesday, September 06, 2006

Hentoff on Schiavo

See this op-ed by Nat Hentoff.

Coombs on Schiavo

New on SSRN: Mary Coombs, Schiavo: The Road Not Taken, 61 U. Miami L. Rev. ___ (forthcoming 2007). The abstract:

Using the Schiavo case as a springboard, this article explores how a bioethics process could provide, in some situations, a better way of dealing with dilemmas over withdrawal of life-saving medical treatment. It briefly examines the different kinds of processes that health care facilities have to deal with these problems and focuses on a bioethics consultation/mediation, in which a trained person helps the participants - the health care team, the patient to the extent he or she is able to communicate, the proxy, if any, and the family - to reach a decision on what should be done. It recognizes the risks of such a process and calls for a constrained deference, in which the consultant/mediator will seek to ensure an adequate, open discourse and to deflect the participants from any outcomes that are ethically problematic.

It then compares such a process with adjudication, both in terms of process values and likely substantive outcomes. In regard to substance, it distinguishes between those situations in which the patient had provided an advance directive, where his or her wishes should be followed even if the active participants might prefer a different outcome and those where there is no advance directive. In the latter situation, the decision reached by a consensus among the parties should ordinarily be followed, given the values furthered by doing so and the relative lack of certainty regarding what specific outcome the patient would have wanted.

Colleges Feel Heat to Help Disabled

See this article by that title, which begins:

The first time the fire alarm went off in his University of Chicago dorm, Jonathan Ko, a quadriplegic, was in bed, without a plan of escape. Had it been a real fire, there would have been no obvious way for anyone to know he was stuck.

Days later, a red sign went up in his window to alert firefighters to his location.

Years after Ko's experience and 16 years after the Americans with Disabilities Act led to sweeping changes in accommodations for people with special needs, the University of Chicago and many other institutions are still grappling with how to adapt - a slow evolution tolerated, until recently, by the government.

But roughly two years ago, the U.S. Department of Justice launched an investigation at the University of Chicago and about 10 other universities.

Last month, to avoid litigation, University of Chicago officials signed an agreement with the Justice Department that requires extensive campus improvements during the next four years.

Government officials hope the University of Chicago settlement and another signed last month with Colorado College are only the beginning of a series of agreements that will require universities to improve access and accommodations for students with disabilities.

The cost of retrofitting buildings, as well as revamping everything from parking to emergency plans, has caught the attention of academia.

"The Justice Department is sending a very strong shot across the bow of American higher education, from community colleges to major research universities, that they are serious about the enforcement of ADA," said Sheldon Steinbach, general counsel for the Washington, D.C.-based American Council on Education. He said it could be "extraordinarily expensive" to comply with what the Justice Department wants.

Tuesday, September 05, 2006

Important Inter-American Court of Human Rights Decision

My colleague Steve Legomsky passes along this report of an important decision the Inter-American Court of Human Rights just released. An excerpt:

A group of Harvard Law students has helped to bring about a landmark decision by the Inter-American Court of Human Rights, which ruled earlier this month that the Brazilian government bears responsibility for the death of a patient in a state-affiliated psychiatric hospital.

* * *

The decision, which is believed to be the first of its kind in South America, said that Brazil violated its obligations to respect and guarantee human rights, violated the right to life and personal integrity, and violated the family’s right to judicial protection and guarantees. The Inter-American Court on Human Rights, the highest tribunal within the Organization of American States, ordered Brazil to pay compensation to Damião’s family.

Interesting Bill Stuntz Piece

Bill Stuntz has a piece in the New Republic that discusses, based on his own experiences, how one adapts to chronic pain. It's a very interesting piece, though the basic thrust should be familiar to people with a disability rights orientation.

Stuntz's piece isn't about the law (though he is a law professor). Margo Schlanger and I explore some of the legal implications (particularly for tort law) of hedonic adaptation to disability in a piece we are working on. Drop me a line and I'll send you a copy.

UPDATE: A recent draft of my piece is here.