Friday, December 29, 2006

NYT on the Randolph-Sheppard Act

See this "Greenwich Journal." It begins:

When the first train of the day rumbles through town at 4:45 a.m., Gregory Maher is usually there to see that commuters do not board empty-handed. Armed with pots of freshly brewed coffee, he greets the bleary-eyed by name and sends them off fortified with their favorite newspapers and morning snacks.

If they are fumbling for change when their train rolls in, an honor system is observed. “They can pay me whenever,” said Mr. Maher, 24.

Save for the cappuccino maker, it is a scene that has existed as long as suburbia. But after eight years serving the hedge fund traders, chief executives and other New York-bound professionals who stream through the station in the Old Greenwich neighborhood each morning, Mr. Maher was notified this month that he, his wife, Mary, and their 82-year-old helper, John Edward Kennedy, had lost the coffee concession and must leave by Jan. 12.

Greenwich town officials said they had little choice but to displace the Mahers in favor of a blind entrepreneur, a third-generation Greenwich man named Adam Fairbanks, who will take over the concession. They cited little-known but longstanding federal and state laws that give preference to the blind when it comes to operating concessions on government property.

Mr. Fairbanks will join 45 fellow graduates of a state training program who run cafeterias, snack bars, newsstands and gift shops on government-owned property in Connecticut.

“I don’t happen to think it’s a very good law,” said James Lash, a Republican who is Greenwich’s first selectman. “But it is the law.”

The Mahers, a Milford couple who say they use the roughly $200 a day that they make on the early morning Metro-North crowd to help support their two children, are fighting their removal. They have collected 500 signatures on a petition and that sits under a bulletin board decorated with snapshots of the family. They have hired a lawyer to research the 70-year-old federal law and a parallel 61-year-old state law to see if they have any recourse, and they are speaking out on what they see as the inequity of having their business taken from them when customers testify that they are doing a good job.

Thursday, December 28, 2006

Deinstitutionalization in Serbia

See this interesting article, which begins:

Serbia - long castigated as the land whose late president, Slobodan Milosevic, launched a genocide in Yugoslavia - is not accustomed to finding itself lauded for safeguarding human rights. But in one area of human rights protection, much-maligned Serbia has taken an unprecedented step that puts it ahead of all the rest of Central and Eastern Europe, including states that are already members of the European Union.

In September 2006, Serbia's ministry of labour, education, and social affairs made it official policy to integrate into society thousands of people who had been locked away in Dickensian state institutions because they have a mental disability. With this historic move, Serbia adopted a practice that took hold in the rich, Western countries after World War II but was never applied in the Communist bloc.

It is anathema to the concept of a free society to segregate people solely on the basis of mental disability, to ignore their most-basic human rights, to bar them from access to education and employment, to deny them the freedom to choose where and how they live and with whom they can associate.

The policy change aimed at rectifying this grim reality in Serbia came when the Ministry agreed to apply country wide a pilot project that has, since 2003, established a range of community-based support services to enable persons with intellectual disabilities to leave the institutions where they were confined and begin living lives in the wider world. That pilot project demonstrated that people with mental disabilities are capable of living as equal citizens when they receive appropriate assistance.

Based upon the project's success, the ministry has committed to purchase more than 130 apartments and homes to house people brought out of institutions and to establish day services to help them cope with the complexities of life beyond the walls that once confined them.

Funding for these reforms comes from the privatisation of state assets - not from aid from abroad. To Serbia's credit, the ministry made its policy decision knowing that the change would require belt-tightening elsewhere in its budget, but it took the action because it concluded that protecting human rights was more important than saving a few dinars.

Read the article for interesting comparisons with some other Eastern European countries.

Shame on You!

See this story by that title. It begins:

Utah's remarkably low unemployment rate of 2 and a half percent isn't helping the state's disabled population. Among Utahns with disabilities, the rate is closer to seventy percent - a fact Governor Jon Huntsman Junior calls quote "unacceptable."

But to Ken Reed, who uses a wheelchair, it's reality. He was once passed over for a job because the other candidate "was able to jump out of a car more quickly."

"It took me maybe a couple minutes more to do the same thing, but I would still be able to do the same job just as well," says Reed.

Huntsman today unveiled a hard-hitting ad campaign intended to shame employers who have passed over a person with disabilities, despite their excellent qualifications.

Huntsman says Utah businesses will need to tap the pool of workers with disabilities if they hope to survive an impending worker shortage that could reach 10-million nationwide.

Reed is convinced that in virtually every employment situation, a person with disabilities would be perfectly able to perform. He works with the Utah Center for Assistive Technology helping businesses accommodate a disabled employee. Reed says the cost is surprisingly small - usually around 500 dollars.

Good Effects of NCLB

See this article, which begins:

Last school year, about 900 Bibb County students with disabilities were learning in isolated classrooms.

The students were almost never exposed to the general curriculum or the general student population. But with demands to meet the mandates of No Child Left Behind legislation growing - all students must pass state exams at their grade level by 2014 - the school system is changing that thinking.

Now, instead of separating those students, the school system is focused on including them more often in the typical classroom.

Only about 165 students learn in self-contained rooms now, said Philip Mellor, director of special education for Bibb County schools. More than half of students with disabilities spend 80 percent of the school day taking regular classes with their peers from a lead teacher, while a special education teacher assists.

"When you put students with disabilities with typically developing peers, they generally do better," Mellor said. "It's a better model."

The inclusion model will improve learning, state test scores and self-esteem among students with disabilities, Mellor said. It also may lead more of the 2,900 students with disabilities to graduate and earn a regular high school diploma, he added.

Not Enough Disability Access at Michigan Stadium, Group Says

See this article by that title. It begins:

ANN ARBOR -- A $226 million plan to renovate Michigan Stadium by adding luxury boxes and other upgrades is renewing complaints that the stadium lacks sufficient seating for the disabled.

The university plans to add wheelchair-accessible seating with an extra row at the top of the stadium's western side, but some fans who would sit there say it's too far from the action.

The disability advocacy group Michigan Paralyzed Veterans of America said the renovation plan violates federal laws on accessibility. The group says the university must offer seating at a wide range of ticket prices and sightlines to satisfy federal law.

''Historically, they've always put us in the least desirable locations,'' Michael Harris, the organization's executive director, told The Ann Arbor News. ''The law really requires them to disperse (seating for the disabled) throughout all price ranges.''

New NCD Report on Telecommunications and Information Services Discrimination

The National Council on Disability just released a report entitled The Need for Federal Legislation and Regulation Prohibiting Telecommunications and Information Services Discrimination. From the Executive Summary:

This paper explores the need to adopt legislative and regulatory safeguards to guarantee equal access by people with disabilities to evolving high speed broadband, wireless and Internet-based technologies. Experience shows that as these technological innovations stake their claim in American society, market forces will not be sufficient to ensure such access. Rather, Congress, the Federal Communications Commission (FCC) and other federal agencies will need to step up to ensure that these communications technologies remain accessible to and usable by all Americans with disabilities. The National Council on Disability, an independent federal agency, prepared this paper pursuant to its statutory charge of providing recommendations to the President and Congress to enhance the quality of life for people with disabilities.

Me on US Airways v. Barnett

I have just posted to SSRN my brief essay, forthcoming in the edited volume Civil Rights Stories, entitled "US Airways v. Barnett and the Limits of Disability Accommodation." The abstract:

This essay, to be published in Civil Rights Stories (Myriam Gilles & Risa Goluboff, eds., forthcoming 2007), tells the story of US Airways v. Barnett. Barnett, which involved an employee's request that his employer modify its seniority system as a disability accommodation, the Supreme Court confronted for the first time the Americans with Disabilities Act's requirement of reasonable accommodation in employment. Barnett ultimately offers a window into three of the most important issues to understand about the ADA's accommodation requirement: the requirement's relationship to more traditional antidiscrimination mandates; its seemingly zero-sum nature; and the limits of its usefulness in a world of reduced job security for everyone.

Wednesday, December 27, 2006

Swanson et al. on ADA Enforcement and Psychiatric Disabilities

New on Westlaw: Jeffrey Swanson et al., Justice Disparities: Does the ADA Enforcement System Treat People with Psychiatric Disabilities Fairly?, 66 Md. L. Rev. 94 (2006).

I blogged about this piece in draft a few months ago.

Bird and Mirtorabi on Shiftwork and the Law

New on Westlaw: Robert C. Bird & Niki Mirtorabi, Shiftwork and the Law, 27 Berkeley J. Emp. & Lab. L. 383 (2006). The abstract:

Professors Bird and Mirtorabi examine and describe shiftwork, the growing practice of working non-traditional hours, particularly in the evening and at night. After mining the rich medical, psychological, and social literature that reveals the harmful effects of shiftwork on the body, mental health, and family life, Professors Bird and Mirtorabi provide a broad-ranging legal analysis of shiftwork. They examine possible legal approaches to shiftwork under the Americans with Disabilities Act and then delve into the treatment of shiftwork in federal employment discrimination and retaliation cases. Finally, Professors Bird and Mirtorabi outline recommendations for further research to help remedy the dearth of legal scholarship addressing the shiftwork problem.

Anderson on Causation and Reasonable Accommodation

New on Westlaw: Cheryl L. Anderson, What is "Because of the Disability" Under the Americans with Disabilities Act? Reasonable Accommodation, Causation, and the Windfall Doctrine, 27 Berkeley J. Emp. & Lab. L. 323 (2006). The abstract:

Professor Anderson examines the Americans with Disabilities Act's requirement that discrimination be "because of the disability" of the individual seeking its protection. She focuses on how some courts use this language to impose unwarranted causation standards on reasonable accommodation claims. Title I of the ADA requires employers to accommodate the "known physical or mental limitations" of employees with disabilities; however, a number of courts require the accommodation be linked to narrowly identified aspects of that disability, or in the case of employees only regarded as having a disability, deny accommodations altogether as not necessary "because of the disability." Professor Anderson concludes that courts use causation requirements to avoid evaluations on the merits of accommodations claims. She argues that courts should review such claims based on whether they are reasonable and not on whether they amount to undeserved windfalls.

This piece addresses incredibly important issues in disability discrimination law. I touched on some of them in Part II.B and C of this piece, as well as in a forthcoming piece on US Airways v. Barnett, but Anderson gives what I think is the first systematic treatment of them.

Tuesday, December 26, 2006

NYT on Workplace Discrimination Against People with Diabetes

The New York Times today published this interesting, very balanced article. It begins:

John Steigauf spent more than a decade fiddling with the innards of those huge United Parcel Service trucks until an icy day two years ago when the company put him on leave from his mechanic’s job. A supervisor escorted him off the premises.

His work was good. He hadn’t socked the boss or embezzled money. It had to do with what was inside him: diabetes.

U.P.S. framed it as a safety issue: Mr. Steigauf’s blood sugar might suddenly plummet while he tested a truck, causing him to slam into someone.

Mr. Steigauf considered it discrimination, a taint that diabetes can carry. “I was regarded as a damaged piece of meat,” he said. “It was like, ‘You’re one of those, and we can’t have one of those.’ ”

With 21 million American diabetics, disputes like this have increasingly rippled through the workplace:

¶A mortgage loan officer in Oregon was denied permission to eat at her desk to stanch her sugar fluctuations, and eventually was fired.

¶A Sears lingerie saleswoman in Illinois with nerve damage in her leg quit after being told she could not cut through a stockroom to reach her department.

¶A worker at a candy company in Wisconsin was fired after asking where he could dispose of his insulin needles.

In each instance, diabetics contend that they are being blocked by their employers from the near-normal lives their doctors say are possible. But the companies say they are struggling, too, with confusion about whether diabetes is a legitimate disability and with concern about whether it is overly expensive, hazardous and disruptive to accommodate the illness.

Thursday, December 21, 2006

Ouellette on Disability and the End of Life

New on Westlaw: Alicia Ouellette, Disability and the End of Life, 85 Or. L. Rev. 123 (2006). From the introduction:

The message from the disability rights community in the debate over end-of-life decisionmaking is simple and compelling: the disabled are better off alive than dead. Any effort to terminate life-sustaining treatment for a person who finds him- or herself disabled is not only demeaning to all people with disabilities, it also constitutes legal discrimination. Thus, courts and legislatures must prevent the termination of medical treatment, especially nutrition and hydration, in cases in which the patient has no written living will. The message has traction. By engaging in major lobbying efforts and court cases to press their cause, disability groups like Not Dead Yet and activists like lawyer Harriet McBryde Johnson have shaken foundational principles of law and bioethics that have for at least thirty years made it permissible for individuals to choose to forgo life-sustaining treatment.

To some degree, the success of the disability rights movement in spreading its message is attributable to an unspoken rule that the disability rights community is untouchable. People outside the community who have not experienced the life of a person with disabilities dare not disagree with the disabled. The reluctance is somewhat justified: the able-bodied have not experienced the condescension and discrimination regularly inflicted on the disabled. But to a very real degree, the lack of serious scholarly challenge to the position of the community is itself patronizing. Indeed, the "reflexive scorn"to the activists' message and the near silence in the legal literature in response to the avalanche of disability scholarship against the termination of end-of-life treatment is astounding. This silence further marginalizes the very group whose marginalization moved it to action in the first place, and leaves unanswered the very real charge of disability discrimination made by those suffering the discrimination. Equally troubling, the apparent deference to the community's message gives the activists legitimacy in their lobbying despite theoretical and practical flaws in their argument.

This Article seeks to answer the call from the disability rights community for a real debate on the role of disability in end-of-life decisionmaking. In the Article, I question whether the crusade by disability rights activists against freedom in medical decisionmaking is in fact in the best interest of people living with physical and mental challenges, and I conclude that it is not. I argue that in seeking to protect members of the disability community from perceived and real threats, the activists would limit options for all of us by declaring how we must, or, more correctly, how we must not die. In this way, Not Dead Yet, Harriet McBryde Johnson, and other disability rights activists pose a direct and immediate threat to the laws that give families choices in decisionmaking at the end of life. Their advocacy may well lead to perniciously paternalistic legal action that will disable all of us--people with and without disabilities--by eliminating medically appropriate and morally acceptable options for medical decisionmaking at the end of life.

I argue further that although the theory underlying the activist agenda has its roots in disability studies, it does not withstand scrutiny. The theory that laws allowing choice in dying perpetuate disability discrimination is flawed by conflation, inflation, misidentification, and a misplaced operational definition of disability. Specifically, the theory conflates dying with disability and misidentifies a persistent vegetative state as a disability that permits meaningful life. The conflation derives from a misplaced operational definition of disability that insists that all people fed by feeding tubes are the same. The conflation and misidentification allow the community to cast decisions to withhold or withdraw feeding tubes as disability prejudice, when such decisions are, in fact, an affirmation of autonomy and a showing of respect for individual values.

By disproving the underlying theory and exposing the negative practical implications of the disability agenda, I hope to derail the community's effort to turn back thirty years of progress in protecting patients and their families at the end of life. That said, my conclusion is not that the disability rights community has nothing of value to add to policy surrounding end-of-life decisionmaking. To the contrary, while I disagree with the extreme position of what I call the new activists, I argue that much of the community's message has merit. Judges, bioethicists, lawyers, legislatures, and health care providers should take concrete steps to stop the palpable discrimination that triggered the political movement in the first place and to alleviate the fear and hurt that has driven scholars and activists to extreme positions. I argue that two steps are necessary to achieve this goal. First, courts, bioethicists, and lawyers must stop justifying autonomous decisions to refuse treatment as reasonable by devaluing life with disability. Second, health care providers and policymakers, including institutional ethics boards, should reevaluate the notion of informed consent in cases of sudden disability to incorporate the evidence from empirical studies by disability scholars.

This looks very interesting, but I can't resist a comment on what the author calls the "patronizing" lack of debate on the issue. As someone who finds the underlying issues genuinely difficult, I don't know what she is talking about. Within the disability rights community, there is a serious debate about end-of-life issues, with strongly expressed opinions on both sides. When the Supreme Court has considered assisted suicide, disability rights advocates and organizations have even filed briefs on both sides. And it's ludicrous to say that most nondisabled people shrink from challenging those people with disabilities who oppose assisted suicide or withdrawal of treatment/life support. If you read a newspaper or turned on the television during the late stages of the Schiavo case, you should know that.

As for the lack of scholarly debate, I don't know. I've highlighted a number of recent scholarly pieces that challenge the opposition of many disability rights advocates to assisted suicide and letting die. In my own work, I've expressed sympathy for some aspects of the position of those disability rights advocates -- particularly their focus on the many constraints on choice in this context -- while at the same time arguing that their position is in significant respects internally contradictory. I've also criticized the federal courts' handling of the Schiavo case in the same article in which I criticized Congress's enactment of the law that sent the case to federal court in the first place.

I'm happy to see Ouellette's contribution to this debate. On the merits, I agree with her in some respects but think she too readily dismisses the difficult legal questions (to say "[s]o long as a surrogate is choosing between medically acceptable options, the ADA has no role in a medical decisionmaking case" is to speak much too broadly), and I think she is not sufficiently responsive to the real societal constraints on "free choice" in this context (and the reasons why paternalism is sometimes good). In the end, I suspect that we may agree more than we disagree. But the notion that there is not yet any vocal opposition to the position Ouellette opposes, and that it takes a brave soul to jump into the debate and take on these sacred cows, seems to me totally wrong.

U.S. Sued Over Dropping of Benefits for Disabled

See this article by that title in today's Washington Post. It begins:

For eight years, Shmul Kaplan lived alone in a suburban Philadelphia housing complex with hardly any furniture and barely enough food to eat. Two years ago, the government told the amputee he would have to make do with less.

Kaplan, who is from Ukraine, lost his $603 in Supplemental Security Income after he missed a seven-year deadline to become a U.S. citizen. The clock started ticking after he was granted asylum in 1997.

A class-action lawsuit filed in federal court in Pennsylvania recently on behalf of people such as Kaplan, 80, contends that they are not responsible for missing the deadline. Kaplan's citizenship application is among hundreds of thousands awaiting background checks by the FBI, a mountainous backlog that grew after the Sept. 11, 2001, attacks. More than 6,000 physically handicapped people who were granted asylum have had benefits cut as they wait, according to the suit.

"The Social Security Administration . . . projects that over 46,000 immigrants will be cut off from SSI in the years 2006-2012 as a result of delays in granting citizenship and the operation of the seven year rule," the lawsuit says.

The suit's plaintiffs include Eshetu Meri, 51, of Fairfax, a blind man who escaped from Ethiopia, where he was targeted for advocating democracy; Tasim Mandija, 80, of Philadelphia, a native of Albania who suffers from prostate cancer and neuropathy; and Rouzbeh Aliaghaei, 17, an Iranian who suffers from a rare genetic disorder that resulted in autism, seizures, mental retardation and an enlarged head. He came to the United States in 1998 when his parents escaped political persecution.

Kaplan, who is Jewish, claimed religious persecution and was granted asylum in January 1997. He was given humanitarian aid because one of his legs was severed when he ran to catch a train at age 18, slipped on ice and slid beneath the wheels. The other leg was so severely fractured that it arcs like a bow.

"I have a very sick leg," Kaplan said in a telephone interview. "It has a lot of fractures, and now it is a curved leg. My stump, it is not a normal stump. Sometimes I have to see a doctor. They take away my benefits, and, of course, it is very bad for me."

Others in the lawsuit declined to be interviewed, fearing that speaking out might interfere with the progress of their citizenship applications, or that they would be sought out for harm.

The suit was filed against top officials of the Social Security Administration, the Department of Homeland Security, the U.S. Citizenship and Immigration Services (USCIS) unit of DHS, the Justice Department and the FBI.

Wednesday, December 20, 2006

Sixth Circuit on Statute of Limitations for Fair Housing Act Accessibility Claims

Joan Magagna passed along this interesting unpublished decision the Sixth Circuit just issued in Fair Housing Council v. Village of Olde St. Andrews, Inc.. In addition to an interesting question of organizational standing, the court also addressed an issue I've recently touched on in the ADA context: When does the statute of limitations begin to run in cases challenging the inaccessible construction of facilities? The Sixth Circuit's answer, under the Fair Housing Act, is "it depends":

We therefore find that in cases where the plaintiff alleges that the owner of a multi-family housing development failed to design and construct the development so as to make it accessible to disabled individuals, the [two-year] limitations period will depend on the specific circumstances of each case. For example, where a disabled individual seeks to buy a particular unit and discovers that the unit is inaccessible because it was not designed in conformity with the FHA, the limitations period for that individual’s claim would begin to run from the date that the individual attempted to buy the unit and discovered the nonconforming conditions. However, in a case such as the instant case, where the plaintiff alleges that the owner or developer engaged in a policy or practice throughout the entire development of constructing housing units that fail to comply with the FHA, the continuing violations doctrine applies to toll the statute of limitations until the sale of the last unit in that development. Along those same lines, where the plaintiff can show that the owner of several housing developments engaged in a continuous policy or practice with regard to the noncompliant design and construction of each of the developments, the continuing violation doctrine may toll the running of the limitations period until the last unit of all of the implicated developments is sold.
This seems fairly sensible to me, though I'd have to think about it more. But I think there is a big difference between a Fair Housing Act case like this -- where once the developer sells the last unit it's plausible to say the developer's duty to make the premises accessible is done -- and an ADA Title II case like the SEPTA case I blogged about -- where the law is more plausibly read to impose a continuing duty on state and local governments to make their premises accessible.

D.C. Circuit on Inaccessible Chinatown Buses

Yesterday, the D.C. Circuit issued an opinion in Peter Pan Bus Lines, Inc. v. Federal Motor Carrier Safety Administration. The case involved a challenge by Peter Pan Bus Lines to the FMCSA's decision to certify Fung Wah Transportation to operate bus service between Boston and New York. Peter Pan had argued that the agency should not grant Fung Wah's application for certification, because "Fung Wah was unwilling or unable to comply with the requirements of the regulations DOT has promulgated under the Americans With Disabilities Act (ADA)." Without disputing the factual premise, the FMCSA certified Fung Wah anyway; the agency concluded that it had no power to consider an applicant's ADA compliance in a certification proceeding.

In an opinion by Judge Henderson, the D.C. Circuit vacated the agency's decision. The court concluded that the FMCSA was wrong to conclude that the relevant statute unambigously barred the agency from considering ADA compliance. Instead, the court found the statute ambiguous and remanded to the agency to permit it to interpret the statute in light of the ambiguity in the first instance.

Judge Tatel issued a separate concurrence, which strongly hinted that he thinks the agency is required to consider ADA compliance:

I write separately to set forth my serious doubts regarding the reasonableness of FMCSA's principal justification for declining to review bus company ADA compliance during the registration process.

In its brief, FMCSA explains that denying Fung Wah the registration it seeks "hardly is in the public interest even if Fung Wah has serious ADA-problems that must be rectified." Resp't's Br. 32. Amplifying this point at oral argument, FMCSA counsel told us that even if an applicant carrier declared its intention to provide low-cost service by operating buses without wheel-chair lifts, the agency would register that company, leaving it to the Department of Justice to investigate. Oral Arg. at 30:49. FMCSA's position is puzzling given that Congress, having enacted the statute to keep motor carriers off the road until they demonstrate they are willing and able to follow the law, must have understood that this requirement would lead to temporary sacrifices of competition. FMCSA's argument, therefore, must rest on the proposition that, unlike the interests protected by "the applicable regulations of the Secretary," the interests of the disabled are so unimportant that they must yield to the interest in competition. If the "applicable regulations of the Secretary" consisted only of safety regulations, then perhaps FMCSA's interpretation would represent a plausible understanding of congressional intent. But the regulations promulgated under Part B--which FMCSA concedes it must consider--go beyond safety to address, among other things, financial responsibility, 49 C.F.R. § 387, race discrimination, 49 C.F.R. § 374.101, .105, and less weighty interests such as noise emissions, 49 C.F.R §§ 325.1-325.93, radar detectors, 49 C.F.R § 392.71, and records storage, 49 C.F.R § 379.5. Absent a satisfactory explanation for why the interests protected by the Americans with Disabilities Act are less important than the interests protected by these other regulations, I doubt very much that FMCSA's justification could survive Chevron step two.

Conference for Law Students With Disabilities

This announcement just came across my in-box:

Conference for Law Students with Disabilities, January 27 - 28, 2007 at American Univeresity in Washington, D.C.
The American Bar Association's (ABA) Section of Individual Rights and Responsibilities' Committee on the Rights of Persons with Disabilities (IRR), along with the ABA's Commission on Mental and Physical Disability Law and the ABA's Law Student Division, will be sponsoring a planning conference for a new national student organization that will encourage those with disabilities to pursue careers in the legal profession as well as assist them in the admissions process, throughout their tenure in law school, and in securing employment after graduation. Attendance at the conference is free and financial assistance for travel expenses is available on a first-come first-serve basis. The conference is being held at American University's Washington College of Law, Washington, D.C.
For more information, contact IRR at (202) 662-1030 or go to:

Monday, December 18, 2006

Dickerson on Mental Illness in Rural Legal Services

New on Westlaw: Mary Irene Dickerson, Brought into Focus: The Factor of Mental Illness in a Rural Legal Services Practice, 13 Geo. J. on Poverty L. & Pol'y 179 (2006). It's an interesting reflection from a long-time legal services practitioner.

Long on the Record Prong

I posted on this piece while it was in draft, but now it's out on Westlaw: Alex B. Long, (Whatever Happened to) The ADA's "Record Of" Prong(?), 81 Wash. L. Rev. 669 (2006). I think this will be an important contribution to doctrinal ADA scholarship; go read it!

Tuesday, December 12, 2006

Disability Rights Legal Center Gets Settlement in San Diego Zoo Suit

I just got this press release:

The Disability Rights Legal Center (formerly Western Law Center for Disability Rights) announced today that it has reached a settlement with the Zoological Society of San Diego to end what it alleged were discriminatory practices against people with mobility disabilities. The settlement was reached in the federal suit Kneeshaw v. Zoological Society of San Diego, Case No. 05-CV-2127-IEG DT (POR), and covers both the World Famous San Diego Zoo and the Wild Animal Park.

As a result of the settlement, the Zoological Society will permanently discontinue its policy of asking people who use motorized mobility aids, such as motorized scooters and wheelchairs, to sign liability waivers or any document regarding their use of such aids in the Zoo or Wild Animal Park. As for previously signed waivers already on file under its prior entrance policy, the Zoological Society has agreed to void all such waivers and never enforce them. In addition, it will notify those who have signed or been deemed to have signed the waivers by putting a notice on its website, its maps, its accessibility guide, and via letters to those who had been subject to the previous policy.

“We are extremely pleased that we were able to reach a resolution with the Zoological Society” said Shawna L. Parks, Director of Litigation at the Disability Rights Legal Center, the nonprofit legal organization that represented the plaintiffs. “The settlement allows people with mobility disabilities to once again enjoy their visits to the Zoo without hindrance or discrimination. The Zoo agreed to do the right thing here.”

Named plaintiff Gladys Swensrud, a long time member of the Zoological Society, was very pleased with the result. “Although I’m sad about the time I lost at the Zoo, I eagerly look forward to resuming my visits to the Zoo with my friends and seeing the animals together,” she said.

Government Appeals Currency Redesign

Via Paul Miller, I see this AP dispatch by that title, which begins:

The Bush administration on Tuesday asked an appeals court to overturn a ruling that could require a redesign of the nation's currency to help the blind.

Justice Department lawyers filed the appeal with the U.S. Court of Appeals for the District of Columbia Circuit on behalf of Treasury Secretary Henry Paulson.

The appeal seeks to overturn a ruling last month by U.S. District Judge James Robertson, who ordered Treasury to come up with ways for the blind to recognize the different denominations of paper currency.

This will be very interesting to follow.

Disability Accommodations in Hunting

See this interesting article. An excerpt:

The federation has partnered with an outreach program known as Wheelin' Sportsmen to give people with disabilities a chance to hunt.

Each year, there are 500 events across the country, serving about 50,000 disabled hunters and anglers each year, said Dee Dee Garvin, the South Carolina-based regional Wheelin' Sportsmen coordinator.

"The largest minority group of people in the United States is disabled people (numbering more than 50 million in the country)," Garvin said. "These people deserve a chance just like you and I do, except they just need a little help. And this program puts them at a forefront of what we do."

Recently, the Pisgah, Nantahala and Smoky Mountain chapters of the federation came together to purchase a $9,000 wheelchair-accessible tree stand, Piver said.

"We use it religiously during deer season and turkey season," he said. "And we do a lot of work with youth. We want to let them experience the outdoors."

Keeping with the strides of the Americans with Disability Act, North Carolina has one of the more progressive programs in the United States for sportsmen with disabilities, according to the N.C. Wildlife Commission.

The state has issued 11,500 licenses to people with disabilities, said Lisa Hocutt, manager of customer support services for the commission. The special hunting/fishing licenses are issued for a lifetime.

The effort includes assisting with access to favorable game and fish areas, allowing the use of equipment designed to overcome specific disabilities, and encouraging people with disabilities to hunt and fish.

Wednesday, December 06, 2006

Off to the Beach

See you Monday!

Colker on Antisubordination and Disability

New on SSRN: Ruth Colker, Antisubordination Above All: A Disability Perspective. The abstract:

An integrationist perspective underlies federal law and policy in the areas of education, institutionalization and voting for individuals with disabilities. Professor Colker argues that an integrationist perspective historically evolved in response to subordinating, stigmatizing and degrading disability-only policies. Extending her 1986 work on the appropriateness of an anti-subordination perspective for the fields of race and sex discrimination, she argues that an anti-subordination perspective should also guide the field of disability discrimination. She contends that the measure of equality should be anti-subordination rather than integration. Disability-only policies can serve an effective role in the disability civil rights movement and should not be dismissed as 'inherently unequal'.

This looks to be a very interesting and important paper.

Tuesday, December 05, 2006

"Most Websites" Failing Disabled

Kate Tapley passes along this BBC story by that title. It begins:

Most of the leading websites around the world are failing to provide the most basic accessibility standards for people with disabilities.

Ninety seven percent of websites did not provide even minimum levels of accessibility, a new survey has found.

Accessibility agency Nomensa tested the leading websites in five different sectors across 20 countries

Only three websites, including the British Prime Minister's site, achieved the minimum standards.

The report, commissioned by the United Nations as part of its International Day of Disabled Persons, will make depressing reading for anyone committed to the idea of equal web access for all.

Mississippi Law Journal ADA Symposium Now on Westlaw

Now on Westlaw: The papers from the symposium the Mississippi Law Journal held last year to mark the 15th anniversary of the ADA. I wasn't there, but the conference had an all-star lineup and the papers are quite interesting. They are:

Helen A. Schartz et al., Workplace Accommodations: Empirical Study of Current Employees, 75 Miss. L.J. 917 (2006);

Anita Silvers et al., Disability and Employment Discrimination at the Rehnquist Court, 75 Miss. L.J. 945 (2006) (which unconscionably fails to cite my Alabama Law Review piece on Echazabal, but I'll forgive them);

Ann Hubbard, A Military-Civilian Coalition for Disability Rights, 75 Miss. L.J. 975 (2006);

Kaaryn Gustafson, Disability, Fluidity, and Measuring Without Baselines, 75 Miss. L.J. 1007 (2006);

Camille A. Nelson, Starting Anew: The ADA's Disability with Respect to Episodic Mental Illness, 75 Miss. L.J. 1039 (2006);

Elizabeth Mills, Comment, How Bizarre? The Application of Reasonable Accommodation to Employees "Regarded As" Disabled Under the ADA Does Not Necessarily Lead to Bizarre Results, 75 Miss. L.J. 1063 (2006); and

Elizabeth Penn, Book Review, Disability Civil Rights Law and Policy, 75 Miss. L.J. 1085 (2006).

Good E.D. Wis. Bar Licensing Opinion

New on Westlaw: Brewer v. Wisconsin Bd. of Bar Examiners, 2006 WL 3469598 (E.D.Wis., Nov. 28, 2006). The case was brought by a person who had applied for membership in the Wisconsin Bar. Because she received SSDI due to a psychiatric disability, the Board of Bar Examiners ordered her "to undergo a psychological evaluation at her own expense as a precondition to taking action on her application." The applicant sued under the ADA, and the Bar moved for summary judgment. After rejecting the Bar's position that the ADA does not apply (the Bar contended that the ADA does not apply to state programs that are intended to protect the public), the court went on to reject the Bar's argument that there was no discrimination. The Bar had noted that it requires people without ADA "disabilities" to undergo psychological evaluations sometimes, but the court responded that the plaintiff's disability was clearly the reason the Bar demanded that she undergo such an evaluation. The court recognized that a psychological evaluation might be necessary in some cases, but it concluded that the defendants had not presented sufficient evidence to obtain summary judgment on that ground. Accordingly, the court denied the motion for summary judgment and set the case for a trial.

Monday, December 04, 2006

I Guess I Picked the Wrong Week to Go to the Beach

Paul Secunda points me to this Walter Olson post declaring it "ADA Week at Overlawyered." Walter and his buddies tend to make very interesting and provocative contributions to the debate -- though I'd say I'm rarely in agreement with them -- so I look forward to it. I may have something to say about the posts when they go up (at least until my beach vacation begins on Thursday).

Macurdy on Disability and Interaction

Allan Macurdy has posted on SSRN his manuscript, Rights Respiration: Disability, Isolation, and a Constitutional Right of Interaction. The abstract:

This paper was written for Texas Wesleyan University Law School's 2006 Gloucester Conference, "Too Pure an Air: Law and the Quest for Freedom, Justice, and Equality." The paper, part of a larger project investigating Human Rights Lessons of Law and Disability, sets out a model of human ability that not only reveals the reality of disability prejudice, but underscores the distortions of current equal protection doctrine's emphasis upon membership categories. Using the lens of disability the paper grounds our understanding of discrimination in human isolation, looking toward solutions that spring from our interdependence rather than our separation.

In his Letter from the Birmingham City Jail, Martin Luther King Jr. declares that Injustice anywhere is a threat to justice everywhere. All men are caught in an inescapable network of mutuality, tied in a garment of destiny. King understood, and the experiences of individuals with disabilities confirm, that exclusion spills directly from the denial of our interdependence. Prejudice would have us see no connection between ourselves and others, and therefore no reason to acknowledge or respect our common humanity. Systematic and pervasive impediments to human interaction in the significant arenas of human life are corrosive of individual dignity and the maintenance of community, and thus isolation should be seen to be at a heart of the evil to be combated through our constitutional protections. Indeed, the purpose of all civil rights statutes, implementing those protections, is to enhance and ensure human interaction for the sake of human rights, the health of our democracy, and our common humanity. James Somerset, upon his arrival in England, breathed in the pure air of rights, air that carried to him the holy symbols of his humanity. As all of us take in from the same air, slavery cannot be allowed to exist because it poisons the atmosphere of rights upon which our humanity depends. Each relies upon the other to protect the air, and each is necessary to the effectuation of rights that have no meaning or consequence except within a web of relationship. Rights respiration can only occur within our social context, and thus isolation constitutes social asphyxiation and the death of self.