Wednesday, November 29, 2006

More on the Currency Opinion

Orin Kerr at the Volokh Conspiracy criticizes the currency case. Here's the crux of his analysis:

The Supreme Court's decision in Choate requires that the government program must provide "meaningful access to the benefit that the grantee offers," not meaningful use of any benefit that originated with the grantee. Going back to the statutory text, the question is whether the disabled person is "denied the benefits of" the federal program. But the visually impaired are not denied the benefits of federal currency, and are not denied meaningful access to currency. They can obtain currency like anyone else, and they can spend it like anyone else. Rather, their use of the currency that is provided under a federal program is more difficult for them than for people with sight. This may be troubling as a policy matter; changing the currency to help the blind may be a good idea. But it's not clear to me that it is needed to give visually impaired persons "meaningful access" to currency.
I don't know Orin particularly, but I'm a big admirer of his work and have always found him to be thoughtful and careful. In this case, though, I think he's wrong. For one thing, I think the "meaningful access"/"meaningful use" line he tries to draw is a line that slices the baloney awfully thin. The whole point of paper money is that it will be used; if it's harder for people with disabilities to use, their access to paper money isn't as meaningful. In Choate, everyone got the same 14 days of inpatient hospitalization, disabled or not. And while the plaintiffs with disabilities needed more hospitalization than that, during the 14 days they received the same benefit from that hospitalization as did the nondisabled. Here, though, people with some disabilities get less benefit from the paper money, simply because of the contingent choices the government has made about how to design it. That seems to be exactly the kind of thing that the "reasonable accommodation" requirement -- which Choate acknowledges -- was designed for.

Moreover, the statutory text goes beyond "deni[als of] the benefits of" programs or activities. It also prohibits the federal government from "subject[ing people with disabilities] to discrimination" -- and "discrimination" is a term that is defined in the Rehab Act case law as incorporating a requirement of reasonable accommodation. So I don't think you can say that the statute reaches only denials of all benefit.

Kirkland on Fatness as a Disability

New on SSRN: Anna R. Kirkland, What's at Stake in Fatness as a Disability? The abstract:

This essay takes up the suggestion that fatness might be (or become) a disability, and uses the observations it yields to propose a new account of a way American antidiscrimination law governs identity categories and manages individuals. It would seem to be an improvement from a fat-rights perspective to gain coverage under the Americans with Disabilities Act, and to be able to enjoy accommodations at work and in public places. This article offers an integrated alternative to the medical and social models of disability, using fat discrimination as a case study to illuminate its implications. Fat identity is likely to be absorbed into what I call managerial individualism, characterized by on-site regulation and negotiation of people's functional capacities in an indeterminate process. The study sets out a new concept of identity in the law — a managed process, not a status — and proposes to turn scholarly discussion about governance, resistance, and identity formation toward recognizing the full implications of such a concept. Identity as a managed process has very little leverage on politics, I conclude, and showcases a type of individualism that is very easily overwhelmed.

Stadium Access in Canada

See this article, which begins:

Diane Edgeworth says she'll reluctantly give up her Winnipeg Blue Bombers season tickets after 30 years, because it's just too hard to enjoy the games in a wheelchair.

But Bombers' president Lyle Bauer said Tuesday night he'd like a chance to help Edgeworth keep coming to games.

"That's why we need a complete overhaul or new facilities," Bauer said. "We do not have adequate amenities for our fans... adequate seating for disabled fans."

"I realize it's an old place," Edgeworth said Tuesday.

Edgeworth suffers from multiple sclerosis, and can no longer walk the steps to her fifth-row seat. "It's really difficult, because we're in the middle of the row," she said.

The field-level wheelchair area is "crappy", Edgeworth said. "It's demeaning to be put in a place where it really is an afterthought.

Judge Says Currency Shortchanges Blind

See this article by that title in the Washington Post. It begins:

A federal judge said yesterday that by keeping all U.S. currency the same size and texture, the government has denied blind people meaningful access to money.

U.S. District Judge James Robertson said the Treasury Department has violated the law, and he ordered the government to develop ways for the blind to tell bills apart.

"Of the more than 180 countries that issue paper currency, only the United States prints bills that are identical in size and color in all their denominations," Robertson wrote. "More than 100 of the other issuers vary their bills in size according to denomination, and every other issuer includes at least some features that help the visually impaired."

He said he wouldn't tell officials how to fix the problem, but he ordered them to begin working on it within 10 days. The American Council of the Blind has proposed several options, including printing bills of differing sizes, adding embossed dots or foil to the paper or using raised ink.

I'll link to the key documents in the case, via the fantastic Civil Rights Litigation Clearinghouse, soon.

New Transit Access Legislation in Britain

See this press release, which begins:

A major loophole in the law will be plugged next month when, for the first time, disabled people and those with long-term health conditions have the right to be treated fairly on public transport.

The new duties, which extend the Disability Discrimination Act 1995 (DDA), mean that disabled people have the right to be treated fairly and the right to reasonable adjustments on buses, coaches, trains and taxis.

The Disability Rights Commission (DRC) will be responsible for enforcing the amended legislation, ensuring transport operators meet their new duties and disabled people know about their new rights.

Bert Massie, Chairman of the DRC, welcomed the new legislation:

“This is an important legal change - having no right to be treated fairly on public transport has been a major loophole in the law. Disabled people have felt frustrated at having no legal redress to poor treatment – a common feature of calls to the Commission.

NJ Transit to Face Disability Discrimination Lawsuit

See this short article by that title. It reads:

Three disabled residents are suing N.J. Transit.Tyrone Lockett, Paulette Eberle and Shonda Lewis said they've been harassed getting on and off trains and buses. They also said they sometimes are passed by.The three said they complained to N.J. Transit, but were ignored in most cases.

N.J. Transit spokeswoman Penny Bassett Hackett said the agency can't comment because it hasn't seen the lawsuits.The three plaintiffs are affiliated with New Jersey Citizen Action.Over the summer, the group conducted a sting to record how disabled riders were treated in Jersey City. The group said it recorded at least 10 incidents in a day where the disabled were discriminated against.

AP Story on Serial ADA Litigation

The Associated Press has this piece on one of my evergreens: serial ADA public accommodations litigation. Check it out.

E.D. Pa. Issues Bad Transit Access Decision

I'm on the road, so blogging will be light today, but I did want to point out the decision in Disabled in Action v. Southeastern Pa. Transportation Auth., 2006 WL 3392733 (E.D.Pa., Nov. 17, 2006), which came out a couple of weeks ago but is just on Westlaw now. DIA had sued SEPTA, the mass transit agency around Philadelphia, for violating the ADA by not making certain stations accessible, and for failing to designate certain stations as "key stations" under the ADA's transportation provisions. The district court ruled that the challenges to inaccessible stations were barred by the two-year statute of limitations (because, for example, the plaintiffs knew an elevator wouldn't be installed in one station more than three years before they brought suit). The district court also ruled -- in part because of Department of Transportation regulations that specifically incorporated a 1989 Rehab Act settlement involving Philadelphia transit -- that the plaintiffs had no right of action to enforce the DOT's regulation setting forth criteria for what's a "key station."

The private-right-of-action discussion in the district court's decision is convoluted but can probably be limited to Philadelphia. But the statute of limitations aspect of the decision seems totally wrong. The ADA doesn't give you a free pass if you build something that's not accessible and nobody sues within two years. What should be done if someone sues later is properly a remedial matter, not a question whether the lawsuit should proceed at all. Or am I missing something?

Monday, November 27, 2006

NYT on Medicaid Commission Report

During my Thanksgiving break, the New York Times published this article on the deliberations of the Medicaid Commission. Excerpts:

A federal advisory panel says that long-term care for aging baby boomers threatens to bankrupt Medicaid, and it recommends sweeping changes to rein in costs, including greater use of managed care for the sickest Medicaid recipients.

The proposals set up a likely clash between the new Democratic Congress and the Bush administration, which has sent strong signals that it will seek big savings in Medicaid next year.

Panel members adopted the recommendations last week, by a vote of 11 to 1, and are drafting a report to be submitted next month to Michael O. Leavitt, the secretary of health and human services. Mr. Leavitt created the panel in May 2005 and is receptive to many of its proposals.

The panel, known as the Medicaid Commission, said states should have more freedom to alter benefits and eligibility for the program, which serves more than 50 million low-income people.

Moreover, it said states should be allowed to enroll some of the sickest Medicaid recipients, including nursing home residents and people with disabilities, in managed care plans.

The panel said such plans “would provide a medical home and better coordinated care” for people entitled to both Medicaid and Medicare. Care is often fragmented now because Medicaid pays nursing homes while Medicare is the primary payer for doctors and hospitals, and in many cases “clinical data is not shared,” the panel said.

* * *

“Public policy should promote individual responsibility and planning for long-term care needs,” said the panel, led by former Gov. Don Sundquist of Tennessee, a Republican.

More generally, the panel said states should be free “to consolidate or redefine eligibility categories” and should be given “greater flexibility to design Medicaid benefit packages.”

The proposals drew a swift negative response from Democrats who will be responsible for Medicaid in the new Congress. Representative John D. Dingell of Michigan, who is in line to become chairman of the Energy and Commerce Committee, dismissed the panel as “a hand-picked commission stacked against working families.”

Senator Max Baucus of Montana, the Democrat in line to lead the Finance Committee, said many of the proposals would make it more difficult for “the most vulnerable Americans” to get comprehensive care.

John C. Rother, policy director of AARP, the lobby for older Americans, said, “In some states, flexibility means cutting benefits.”

* * *

Gwendolyn G. Gillenwater, a commission member who is policy director of the American Association of People With Disabilities, an advocacy group, voted against the report.

“People with disabilities have not had good experience with managed care,” Ms. Gillenwater said. “We need federal protections and safeguards. People with disabilities should at least have a choice of two managed care plans. And what are your choices if you opt out of managed care? The alternatives are getting more and more limited.”

The panel said Congress should rewrite the Medicaid law to encourage the use of home care and community services, instead of nursing homes and other institutions.

In an interview, Angus King, the former Maine governor who is the panel’s vice chairman, said: “We need to reverse Medicaid’s institutional bias. Community care — that’s what people want. It’s better for beneficiaries. And it’s less expensive.”

Settlement Will Add Parking for Students with Disabilities

See this article by that title. It begins:

Jim Hayes didn’t want to sue his school.

He’s always dreamed of being a Husky, and has nothing but praise for his teachers at the University of Washington Tacoma.

But Hayes, a 53-year-old wheelchair user, had one big complaint after beginning his studies in the summer of 2005: The campus didn’t have adequate parking for students with disabilities. The designated spaces were far away from school buildings, were improperly marked, and required a permit to use them, Hayes said.

He took his complaints to school officials more than once, telling them they weren’t following the law. But he said he kept hearing the same reply: “We’ve checked, and we’re in compliance.”

“They pretty much brushed me aside, so I had no other recourse to get their attention,” Hayes said. “And I did get their attention. This is going to be a great change not only for me but for everybody.”

In May, Hayes filed suit in federal district court in Tacoma. The case was reassigned to the Central District of California after the judges at the Tacoma courthouse – which happens to be across the street from UWT – decided that it would look better to remove it from their purvey. The parties reached a settlement agreement this month.

In exchange for Hayes dropping his lawsuit, UWT agreed to create new handicapped parking, mark them with the universal symbol for handicapped parking, and undertake a review of campus accessibility, including curbs, sidewalks, parking signs and access routes.

In addition, the school plans to review its process for handling requests for accommodation. And Hayes will receive $42,000, a payout that will largely go toward attorney fees. UWT will pay $39,000 and the City of Tacoma, also named as a defendant, will pay $3,000. The city also agreed to widen and restripe two parking spaces on Jefferson Avenue.

EEOC and Chase Reach $2.2 Million Settlement in Disability Discrimination Claim

See this article by that title. It begins:

The EEOC issued an administrative determination on March 11, 2004, finding that there was reasonable cause to believe that Bank One violated the ADA by failing to properly accommodate a group of employees who were medically released to return to work after leaves of absence exceeding six months. Bank One automatically protected employees' jobs when employees went on a leave of absence for less than six months. However, for employees who went on longer leaves of absence, the EEOC found that Bank One violated the ADA by terminating some employees without first attempting to determine on an individual basis whether they required additional job protection or other accommodations because of a disability. In 2004, after the EEOC's finding was issued, Bank One merged with Chase. Chase assumed negotiations with the EEOC following the merger of the two companies.

As a result of the settlement, the merged company will distribute $2.2 million among 222 individuals who went on a long-term disability (LTD) leave of absence from Bank One and whose employment was ultimately terminated. Chase will also reinforce its policies to individually assess whether a disabled employee on a disability leave of absence should receive additional job protection or other accommodations. Chase will provide training on the ADA and its revised policy to all managers, human resources professionals, and employees of its Disability Management Services department.

Troubling New York Case

See this editorial, which begins:

Very little is known publicly about the death earlier this month of a 15-year-old boy at the Tryon Residential Center for Boys in Fulton County, not even his name and the precise circumstances under which he apparently had to be restrained. Already, though, some uneasy questions have emerged.

Why, for instance, are workers at the state Office of Children and Family Services, which operates Tryon, trained in using a method of restraint that two other state agencies have banned? The procedure calls for staff members to place the subject face down, lie across his back and immobilize his arms.

Officials said the boy at Tryon had to be subdued after he became physically aggressive on Nov. 17. Details of how he was restrained were not provided.

Disability Advocates Inc., which represents institutionalized people, says the procedure in which Children and Family Services workers are trained should be abandoned. It's already banned in the state prison system, and by the state Office of Mental Health.

As Cliff Zucker of Disability Advocates Inc. explains, the person being restrained most likely won't be able to complain if he can't breathe. Gasping for air can easily be misinterpreted as physically resisting such restraint, which means a potentially dangerous method can be applied even more forcefully.


See this press release, which begins:

The American Association on Mental Retardation (AAMR), a 130-year-old association representing developmental disability professionals worldwide, has changed its name to the American Association on Intellectual and Developmental Disabilities (AAIDD), establishing a new standard in disability terminology and making way for a more socially acceptable way of addressing people with intellectual disabilities. The AAIDD is arguably best-known for officially defining the condition of mental retardation for the world, and its successful advocacy in abolishing the death penalty for victims with this condition in the United States. The name change will take effect January 1, 2007.

Tuesday, November 21, 2006

A note to both of my readers

Have a happy Thanksgiving! I'll post again Sunday or Monday.

Reinstitutionalization in Canada?

See this article, which begins:

Parents of mentally and physically challenged Nova Scotians say the government's plan to house 25 people in a new centre amounts to institutionalization.

About 50 people marched to the legislature Tuesday to lobby for smaller homes within the community.

Jennifer Gallant, a mother of a 10-year-old disabled boy, doesn't want her son to live in a large facility with dozens of people.

"I've had enough," said Gallant. "My son has a wonderful life right now. He enjoys his community, his friends, his family, and quite frankly he deserves nothing less."

The government announced Thursday that it would renovate the old Cobequid Multi-Service Centre in Lower Sackville and turn it into a 25-unit home for people who need a lot of support.

Canadian Blind Voting Case

Ravi Malhotra passes along this article, which begins:

A blind man from Saskatoon who says his rights were violated in the last provincial election took his case to a human rights tribunal Tuesday.

Robin East said he was discriminated against because he wasn't offered an alternative to the standard ballot that would have allowed him to vote secretly and independently.

"If I can't vote in secrecy and without assistance, then I really have nothing as an individual," East said in an interview.

"To me, this is a fundamental right and an extremely important issue."

The hearing in Saskatoon before Sheila Denysiuk began Tuesday morning. The province's chief electoral officer is the defendant in the case.

Ravi comments: "I am amazed we are still dealing with basic issues like this!" But it's just as bad here. See this briefing for some of the gory details (and see the case cites here).

Monday, November 20, 2006

Report of ABA Conference on Employment of Lawyers with Disabilities

Now online: The report of the American Bar Association's National Conference on the Employment of Lawyers with Disabilities. I had the honor of attending this conference in the spring, and there was a lot of interesting discussion about the problems lawyers with disabilities have in getting hired. The report should be required reading for any lawyer with a disability or anyone who has anything to do with the hiring of lawyers.

Saturday, November 18, 2006

Congratulations, Paul Miller!

Paul Miller, one of the pioneers of disability rights law, who's been at the University of Washington Law School for the past couple of years, just got named the Henry M. Jackson Professor of Law and Director of the University of Washington Disability Studies Program. That's one awesome title, though I hope it doesn't turn Paul into a hawk.

Friday, November 17, 2006

Anti-Serial-ADA-Litigation Editorial in Sacramento Bee

The Sacramento Bee published this editorial today. It begins:

The benefits of the 16-year-old Americans With Disabilities Act are indisputable. The landmark civil rights law has transformed the landscape. Today, people in wheelchairs, the blind, the hard of hearing, those with mental illnesses, the frail and the elderly can maneuver through public transit, schools, parks, restaurants, shops and offices with an ease that was unthinkable before ADA

But as Bee reporters Margie Lundstrom and Sam Stanton document in their recent series, "Price of Access," gaining that access often has been unnecessarily and expensively litigious. Opportunistic lawyers have used the law to wring money from unsuspecting businesses whose owners were unaware of, or confused about, ADA's reach and their obligation under it. To make matters worse, conflicting building codes and federal and state regulations have left some businesses with no effective way to comply, leaving them sitting ducks for these lawyers. Unfortunately, neither judges nor the state bar has done enough to rein in the most ethically questionable practitioners in this area of the law.

UPDATE: Rick Hasen notes that the Bee's entire series can be found here.

Interesting Disability Public Employment Case From India

See this article. Some excerpts:

The Bombay High Court has directed that handicapped persons should be provided with a writer while conducting exams including Maharashtra Public Service Commission (MPSC), for recruitment in state government departments while hearing a public interest litigation.

A division bench comprising Chief Justice H S Bedi and Justice V M Kanade also directed the state to file a reply in four weeks submitting the details of quotas in promotions for Class I and II employees categorised as Group A and B in their departments following the handicapped persons sought reservation for promotion in these two categories as per the Persons With Disability Act earlier.

* * *

The court has also directed that the Disability Commissioner for state should be provided with adequate staff to work efficiently.

Chief Secretary for State, Dr D K Sankaran, also submitted in his affidavit that strenous efforts were being made to clear the backlog of recruitment of handicapped persons.

Earlier the court had stayed the recruitment process of the various state departments until the backlog was cleared. Following the orders, the Chief Secretary submitted today that some of the departments had cleared the same and they be allowed to finish their recruitment of non-physically handicapped persons. He especially asked exemption for the Directorate of Forensic Science Laboratories from reservation for handicapped persons considering the peculiar kind of job the employees of the directorate are required to perform, which the court granted.

Medium-Good Eleventh Circuit Title III Opinion

Yesterday, the Eleventh Circuit issued an opinion in Association of Disabled Americans v. Neptune Designs, Inc.. The case was a standard-issue public-accommodations accessibility case under Title III of the ADA. The parties entered into a settlement agreement, under which the district court retained jurisdiction, and the plaintiffs moved for attorneys' fees. The magistrate judge found that the plaintiffs were prevailing parties, but he recommended that their fees be reduced on the ground that they allegedly had not provided the defendants notice and an opportunity to cure prior to filing suit. The district court adopted the recommendation in a one-page order.

In its decision yesterday, the Eleventh Circuit vacated the district court's order. The court of appeals "stress[ed] that pre-suit notice is not required to commence suit under the ADA and that lack of pre-suit notice does not compel a reduction of the requested fee award." But the court also ruled that "where the factual record supports a finding that the plaintiff filed or maintained a suit unnecessarily, a district court may properly consider such a finding in setting the amount of attorney’s fees." The district court erred only because "the factual record is incomplete and now does not support the reduction in the fee award." In particular, the district court heard from only one side on the factual question whether the plaintiffs gave presuit notice: The magistrate judge considered an affidavit from defendants that stated that plaintiffs had not given such notice, but plaintiffs contested the point, and the magistrate judge did not permit the plaintiffs to introduce evidence to support their side of the story. The court of appeals concluded: "Receiving evidence from only one party on a disputed material fact outside the court’s expertise is inherently unfair and an abuse of discretion."

Judge Barkett concurred specially. She said:

The magistrate judge and the district court in this case lacked any factual basis for their reduction of fees to the Plaintiffs. As the majority opinion states, pre-suit notice is not required of plaintiffs asserting a cause of action under the ADA. The Defendants presented no evidence that the Plaintiffs’ suit was brought frivolously or maintained longer than was necessary. See Fed. R. Civ. P. 11, 68.

Therefore, I concur.

Sad Title II Case

Yesterday, the First Circuit issued its opinion in Buchanan v. Maine. The case involves a sad state of facts. Michael Buchanan, an individual with a psychiatric disability, "was shot to death inside his isolated Maine home when he repeatedly stabbed one of two deputy sheriffs who had gone to check on Buchanan's safety and welfare." His brother, on behalf of his estate, filed suit against the deputies and their county under Section 1983, and he sued the county and the state for violating Title II of the ADA. The basic theory of the ADA violation was that the state and the county had failed to provide appropriate mental health treatment for Buchanan, who was living in the community. The state argued that the Eleventh Amendment barred the suit against it, but the First Circuit refused to decide that question. Following the approach mandated in United States v. Georgia, the court held that it must first decide which, if any, of the plaintiff's claims actually made out a violation of the ADA, before deciding whether Congress validly abrogated the state's sovereign immunity against those claims. And the court held that the plaintiff had not made out a claim of a Title II violation.

Thursday, November 16, 2006

Legal Profession Blog on the ADA and Attorney Discipline

Over at the Legal Profession Blog, Mike Frisch has a post about an interesting disciplinary case with ADA overtones.

Ferleger on Serial ADA Litigation

Disability rights superstar litigator David Ferleger (of Pennhurst, among other cases) now has a blog. He has a very interesting post on one of my favorite topics -- serial ADA litigation. Go check it out!

Stefan on Patient-Centered Care and Individuals with Psychiatric Disabilities

New on SSRN: Susan Stefan, The Application of the Concepts of Patient Centered Care and Self-Directed Care to Individuals with Psychiatric Disabilities: Legal, Policy and Programmatic Considerations. The abstract:

This article considers potential barriers to applying the Institute of Medicine's principle of patient centered care to individuals with psychiatric disabilities. It compares patient centered care to self-directed care, a concept used in Medicaid that is being considered for application to programs treating people with psychiatric disabilities.

The author concludes that 1) concerns about competence as a barrier to patient centered or self directed care are overstated; 2) barriers related to the involvement of the legal system in mental health treatment through commitment and compulsory medication orders create a more significant barrier to application of patient centered care and self directed care than concerns about competence; 3) the current understanding of informed consent for people with psychiatric disabilities inappropriately places too much of the burden of risky decisions on the health care professional; and 4) if self directed care were truly adopted in public mental health services, it would result in the welcome demise of the day treatment system as we know it. The paper proposes solutions to the barriers it discusses and endorses (with certain limitations) the concepts of patient centered and self directed care for people with psychiatric disabilities.

Tuesday, November 14, 2006

Interesting sidewalk access article

in the LA Times, here. It begins:

When John Lonberg travels the sidewalks outside his Riverside home, he is constantly reminded of the inequities of being in a wheelchair.

Within sight of his home on Kloiber Street are at least a dozen possible violations of civil rights laws that grant the disabled equal access to public rights of way.

Buckled sidewalks obstruct his path, street corners lack wheelchair ramps, and sloping driveways that cross sidewalks are difficult to navigate.

"The city says there are other ways I can go," said Lonberg, 69, who has sued Riverside in federal court, alleging widespread violations of federal access laws. "I'm not some gimp in a wheelchair complaining about little things. These are real problems the disabled encounter every time they go out of their homes."

Lonberg and other activists within the handicapped community are taking their fight to the public sidewalk — the latest battleground in the disability rights movement. Over the last several years, they have filed a series of federal lawsuits against local and state governments to secure equal access to public rights of way, such as sidewalks, crosswalks and park-and-rides. The latest case was lodged against the California Department of Transportation in late August.

The activists assert that sidewalks are in such poor condition in many cities that people in wheelchairs have to detour onto streets — an illegal and risky undertaking.

Out of court, disability rights groups have negotiated agreements with several cities to improve sidewalks, and the state attorney general's office — based on continuing complaints — has sent letters warning local governments to bolster their compliance with state and federal access laws.

"As a society we've come a long way," said Assistant Atty. Gen. Louis Verdugo Jr., who heads the state's civil rights enforcement unit. "But we still have a long way to go to create the infrastructure that will continue to allow the disabled to be mainstreamed."

It's a very bloggy thing to say, but Read the whole thing!

Monday, November 13, 2006

Long, Discursive Posts

seem to run in my family today. (Sorry, not disability-related, but you'll forgive the nepotism?)

The New Congress and the ADA

My long, discursive posts are a rare and treasured thing (NOT!). But I think it's useful to spend some time discussing the likely impact of the Democratic takeover of Congress on disability law. Since the Supreme Court's 1999 trilogy of definition-of-disability decisions (Sutton, Murphy, and Albertson's), many in the disability community have felt that it made sense to go back to Congress to get legislation to restore what the main sponsors of the law intended. As the negative decisions from the Supreme Court have accumulated (though with some bright spots, like Lane and Georgia), that feeling has gotten stronger. (For the National Council on Disability's take on what amendments are necessary, see this report.) For a long time, the fear of opening up the ADA to even more restrictive amendments (like the ADA Notification Act) kept the disability community from mounting a full-scale effort to seek amendments to the statute.

Even before the elections last week, the momentum was beginning to shift. In late September, Representative Sensenbrenner (then the Chair of the House Judiciary Committee) introduced a bill, cosponsored by Representatives Conyers and Hoyer, that would reverse the Court's definition-of-disability decisions. And in August Senator DeWine, facing a tough reelection fight, introduced a bill that would reverse the Garrett sovereign immunity decision (a bill that was functionally equivalent to a proposal that had been made by Senator Leahy some years back). And my purely impressionistic sense is that many folks in the disability community who had previously feared reopening the ADA had ultimately come to the conclusion that judicial decisions had so hamstrung the statute that taking that course was now worth the risk.

So the natural question is what effect the change in control of Congress will have on this state of affairs. I think it's now quite a lot more likely that some sort of "ADA Restoration Act" will pass -- which isn't to say that it definitely, or even probably, will pass. It would be smart political strategy for the Democrats in Congress to push issues that hold their party together but that divide the Republicans. Played right, the ADA could be one of those issues. Lots of prominent Republicans are vocal supporters of the ADA (see soon-to-be-former Senator DeWine, above, or Arlen Specter, or the President of the United States), but a lot of the opposition to and criticism of the statute comes from Republicans as well (look at the list of sponsors of the ADA Notification Act). Democrats, by contrast, have been pretty unified on the statute.

And the incoming Democratic leadership is very pro-ADA. Senator Leahy (new Chair of the Judiciary Committee) and Senator Kennedy (new chair of the Senate Labor Committee (sorry, the "HELP Committee" sounds too ridiculous)), have strongly supported the ADA from the beginning, as have Representatives Conyers and Miller (who will now chair the equivalent committees in the House). Representative Miller even held field hearings at the San Francisco "Sign 504" protest in 1977 (along with the late, great Phil Burton), so he's been supporting these issues since well before the ADA. Representative Hoyer, who is one of the two candidates for House Majority Leader, was a key sponsor of the ADA when it passed in 1990, and has been a vocal critic of the Supreme Court's limiting decisions.

But I think a lot depends on the particular aspects of the ADA the Democrats seek to bring forward. Sovereign immunity seems to me the most fertile ground politically. Some Republicans will probably vote for a sovereign immunity fix like that in the DeWine bill, and nearly all Democrats will vote for it. The President, whose own Justice Department has vigorously argued for abrogation of sovereign immunity under the ADA (including sending out the Solicitor General himself, Paul Clement, to argue for abrogation in the Georgia case), will be hard pressed not to sign it. Only the hard-core states-rights people will be on the other side. Senators Leahy and Kennedy have been strong supporters of overturning Garrett in the past. They will be be in a good position to push this legislation through.

I also think there's a decent chance of overturning the Buckhannon decision, which eliminated the "catalyst theory" for attorneys' fee recovery in civil rights cases. (For a discussion of Buckhannon, see this NCD report.) Buckhannon has been bad for civil rights litigation generally, but (as I argue in my UCLA piece) particularly devastating for ADA litigation challenging inaccessible businesses. Senator Feingold, who should now chair the constitutional rights subcommittee, introduced a bill way back to overturn the case. Again, it's hard to see many Democrats opposing such a bill. An effort to overturn Buckhannon may get caught up in small-business owners' objections to serial ADA litigation, but (as I also suggest in my UCLA piece), I think there's clearly a compromise available that should satisfy legitimate objections of business owners: Overturn Buckhannon, but require pre-suit notice in ADA public-accommodations accessibility cases. So long as attorneys' fees are awardable for an attorney's pre-notice investigation in cases where the notice induces compliance (something that could be made clear in the statute), a notice requirement would not get in the way of enforcement of the ADA under a regime that had the catalyst theory.

The definition of disability is in many ways the big prize, but in some ways it's probably the most difficult issue on which to get legislation passed. The fact that Representative Sensenbrenner introduced the bill to reverse the Supreme Court's definition-of-disability decisions demonstrates that there will be at least some Republican support for such an effort, and I'd certainly be in favor of such a bill. But a broad return to the 1988 version of the ADA bill (which defined "disability" as a present, past, or perceived "impairment," without any requirement that it substantially limit a major life activity) -- which is what the Sensenbrenner bill would do -- seems very vulnerable politically. I'm not sure the American public -- or even the Democratic majority -- is ready for a law that says that wearing eyeglasses is a disability that entitles one to accommodation. I'd be willing to have that argument (something that may be a change from what I've thought in the past), but I have my doubts that it would be successful. Again, I think that a compromise might be the best thing here. Such a compromise could make clear that people with epilepsy, diabetes, schizophrenia, and like conditions, and who use devices like hearing aids and prosthetics, are protected -- but it could do so without returning to the attempted 1988 definition.

Any thoughts? Feel free to post them in comments.

Sunday, November 12, 2006

Riders Sue Transport Company

See this article by that title. Although it's not technically about a "suit," close enough. It begins:

Disabled Alachua County residents have filed a civil rights complaint against the company that local governments have charged with providing them with transportation.

The complaint, filed with the Federal Transit Administration against MV Transportation at the end of October, argues that the company's problems providing rides at scheduled times, taking reservations and keeping up its vehicles cause serious issues for disabled riders and amount to a violation of the Americans with Disabilities Act.

"Why as a transportation company do they have a problem with the wrong location, the wrong day or the wrong time?" asked Joan DeNicola, a board member of the Gainesville chapter of the National Federation for the Blind, which filed the complaint.

Pinnock Hits Solana Beach

See this article, which begins:

The lawyer who raised hackles a year ago when he sued dozens of Julian businesses over lack of access for the disabled brought his fight to Solana Beach on Thursday.

A lawsuit targeting Cole's Carpets in the Cedros Design District is one of 300 that attorney Theodore Pinnock says he has filed since his self-dubbed "Julian Experiment" made headlines.

Pinnock, who himself has cerebral palsy and uses a wheelchair, is well-known for his many lawsuits targeting businesses over disability access issues.

Pinnock argues in the new lawsuit, filed Thursday in federal court, that wheelchair-using visitors to the Solana Beach location of Cole's Carpets are greeted by steps at the entrance, with no ramp or lift to help them enter the store.

Attorney David Peters, who has battled Pinnock many times in court, is representing Coles in a suit Pinnock filed earlier this year that challenges access issues in another Coles location in San Diego. Peters said he'd not yet seen the suit filed Thursday targeting the Solana Beach location, but said his client is still fighting the first suit.

Pinnock's latest lawsuit comes a year after he made headlines for sending letters to 67 businesses in the mountain hamlet of Julian, demanding that store owners and landlords make their shops accessible to the disabled ---- and pay up to the tune of $200,000 ---- or he would take them to court for violating federal civil rights laws guaranteeing access.

Business owners and others balked, calling Pinnock's notice letters a shakedown tactic to make money.

The ire led Pinnock to drop his practice of sending out the notice letters ---- which he said actually helped prevent lawsuits by seeking settlements before the issue landed in court ---- and instead would take his complaints straight to court.
For my take on these issues, see my article in the October issue of the UCLA Law Review.

The Debate is Growing: Is Being Short a Disability?

Tomorrow's USA Today will carry this article by that title.

Private Sector Websites and the ADA

Mark Leeds sent me the following message:

Private sector websites can be public accommodations under Title III of the Americans with Disabilities Act (ADA) -- and thus required to be accessible to people with disabilities -- regardless of whether such sites are associated with a "bricks and mortar" facility. This is the finding of a report just issued by the Association of the Bar of the City of New York (City Bar), available at
While governmental services and programs available on the Internet clearly are required to be accessible under Title II of the ADA, some courts and commentators have taken divergent views concerning private sector sites. In a painstaking analysis of the language of Title III and of regulations written pursuant to Title III, as well as of evidence in the ADA's legislative history and of fundamental rules of legislative interpretation, the City Bar demonstrates how the law requires private sector websites to be accessible. Citing statutory and regulatory language, the report points out that the ADA's list of categories of public accommodations is not a list of "places" and that a "place" can be the website itself. The report points to the standards long accepted for the public sector as those to be followed by the private sector as well.

It is hoped this report will bring clarity to an area in which misquotation and misapplication of statutory and regulatory language have led to confusion among some courts and commentators. Website accessibility is not difficult to achieve and is in the interests of all concerned, including those putting website onto the Internet.

Access to the Internet for people with disabilities is is vital to our integration into the mainstream of society not only in the United States. Like the Internet itself, the issue is global. It will be the focus of this year's United Nations International Day of Disabled Persons

Please read and disseminate the City Bar's report:
This is an awfully important issue, and the City Bar's report certainly deserves careful consideration. My sense has always been that it's much easier to justify reading ADA Title III to cover the websites of brick-and-mortar goods and services providers than to cover the websites of businesses that sell exclusively over the internet.

New Case on Taxi Discrimination in Canada

The always reliable Ravi Malhotra passes along this article, which begins:

A Winnipeg man was recently awarded $2,500 in compensation by a Saskatchewan human-rights tribunal for being refused a taxi ride during a visit to Regina.

Retired pastor Mark Scott, 72, has limited mobility and uses a combination of a wheelchair and crutches to move around. However, he can walk short distances and can get in and out of cars without any problem.

In January 2003, Scott flew to Regina on a visit and tried to get a taxi from the airport, but the first two drivers did not want his fare.

"The guy gets out of his cab and he says, 'No wheelchairs, no wheelchairs, I got a sore back,' and drove away," Scott told CBC News.


I'm back. In the past few weeks, I've been working on lots of things (including filing a cert. petition in this case), and I'm now ready to get back to blogging (just in time for the Thanksgiving hiatus!). So look forward to new content. Whoopee!