Friday, January 26, 2007

Light Posting

Posting will be light until about Valentine's Day. Between now and then I have to meet a deadline on this piece, prepare for oral argument in the first case listed on this calendar, file briefs in this case and this one, get mixed up in this matter, teach a class with this guy, and do my day job.

Tuesday, January 16, 2007

Supreme Court GVRs ADA Title II Case, With Ginsburg Concurrence

Today, the Supreme Court issued a brief order in Haas v. Quest Recovery Systems, in which the Court granted the petition for certiorari, vacated the Sixth Circuit's judgment, and remanded for further consideration. The case was brought under Title II of the ADA, and the Sixth Circuit held both that the state had sovereign immunity and that the plaintiff had not stated a Title II claim against the state. The United States, who intervened in the Supreme Court, argued that if the plaintiff did not state a claim the Sixth Circuit should not have reached the sovereign immunity question. The Court remanded to give the Sixth Circuit a chance to consider that argument. Justice Ginsburg's brief concurrence pointed out a couple of apparent problems with the Sixth Circuit's opinion (the Sixth Circuit found some of Haas's claims barred by judicial immunity even though no judge was named as a defendant, and it appeared to apply a heightened pleading standard, in conflict with extensive Supreme Court case law).

Wash. Post Op-Ed on Prenatal Testing

Rick Garnett passes along this interesting piece. An excerpt:

She was a fresh-faced young woman with a couple of adorable kids, whiling away an hour in the sandbox at the park near my home. So was I, or so I thought. New in town, I had come to the park in hopes of finding some friends for myself and my little ones.

Her eyes flicked over to where my daughter sat, shovel gripped in a tiny fist, and then traveled quickly away. The remark that followed was directed to the woman next to her, but her voice carried clearly across the playground. "Isn't it a shame," she said, an eyebrow cocked in Margaret's direction, "that everyone doesn't get amnio?"

It's been more than 20 years, but I saw the face of that woman again when I read about the recommendation from the American College of Obstetricians and Gynecologists (ACOG) this month that all pregnant women get prenatal screening for Down syndrome. I worry that universal screening brings us all closer to being like that woman at the sandbox -- uninformed, judgmental and unable to entertain the possibility that people with disabilities have something to offer.

The ACOG news release notes that the recommendations are based on consistent scientific evidence and will allow obstetricians and gynecologists to best meet their patients' needs. Until now, women 35 or older were automatically offered genetic testing for Down syndrome; under the new guidelines, less invasive and earlier screening options will be extended much more broadly.

What's gone undiscussed in the news coverage of the guidelines seems to be a general assumption that reasonable people would want to screen for Down syndrome. And since nothing can be done to mitigate the effects of an extra 21st chromosome in utero, the further assumption is that people would be reasonable to terminate pregnancies that are so diagnosed.

Wednesday, January 10, 2007

"Idiots," "Insane," and the New Jersey Constitution

Via Rick Hasen comes this article, which begins:

Though it has been decades since people commonly referred to those with mental illness as "idiots" or "insane," the New Jersey Constitution still does.

A resolution introduced Monday by Senate President Richard J. Codey would remove the archaic language, inserted in 1844, by proposing a constitutional amendment. The measure would have to be approved by both houses of the Legislature and by voters in November.

"This is yet another big step toward removing the stigma of mental illness," said Codey, an ardent advocate for the mentally ill.

The source of Codey's ire is a section of the state constitution that addresses those who are eligible to vote. It states, "No idiot or insane person shall enjoy the right of suffrage."

Calling the phrasing "outdated, vague, offensive to many, and subject to misinterpretation," Codey proposed deleting "idiot or insane person" and replacing those words with "person who has been adjudicated by a court of competent jurisdiction to lack the capacity to understand the act of voting."

Luke Koppisch, a coordinator with the New Jersey Developmental Disabilities Council, which brought the idea to Codey to sponsor, said the language is insulting and had no place cemented in state law.

"It harkens back to an era when people with disabilities were treated like second-class citizens," he said.

New Jersey is not alone in its political incorrectness. According to the Bazelon Center for Mental Health Law in Washington, D.C., six other state constitutions -- Arkansas, Iowa, Kentucky, Mississippi, New Mexico and Ohio -- also contain the "idiots and insane" language pertaining to voting rights.

Codey said the fact that the language remained so long in the constitution was "a disgrace."

"Not only is it insensitive," Codey said, "but it does not take into account the individual circumstances of people with varying degrees of disabilities."

The crucial thing here, it seems to me, is not the "political correctness" of the language, but the lack of an individualized inquiry into voting competence under NJ's current constitutional provision. Kudos to Codey.

Good Parental-Rights Termination Case from the MO Supreme Court

See this article in today's Post-Dispatch, which begins:

Even though the courts had ruled that Angela Williams' mental condition made her unfit to parent her son, she kept a bedroom for the absent child.

As her son grew older, she dismantled an unused crib and replaced it with an unused toddler bed. On Christmas and birthdays, she's never stopped buying toys.

"My life has been on hold waiting for Christopher," she said.

On Tuesday, the state's highest court took a key step toward reuniting the mother and child, in what is considered a significant ruling for the rights of mentally ill parents.

The Missouri Supreme Court ruled unanimously that Williams was unjustly denied parental rights based on an outdated mental evaluation of bipolar disorder.

The case had raised broad questions about mental illness, what it takes to be a fit parent, and how the system ought to regard parents whose mental health improves.

"I think it's a groundbreaking ruling nationally, because there are very few cases of this kind," said Jennifer Mathis, an attorney for the Bazelon Center for Mental Illness in Washington. The group, along with the American Civil Liberties Union of Eastern Missouri, joined the case in support of the mother.

Here's the Missouri Supreme Court's opinion, which was written by Judge Teitelman -- a really great judge, who we're lucky to have on our high court.

Wednesday, January 03, 2007

New Disability Law Worries Employers

See this article by that title. It begins:

The new, more liberal definition of "disability" recently adopted by the Maine Human Rights Commission has many employers worried. They say disgruntled workers who suffer from common ailments, like bad acne or high blood pressure, will now be able to sue them for discrimination.

Attorneys who represents workers, though, welcome the change. They say the old rules were so narrow that people with serious health problems, like breast cancer or diabetes, had no legal protection when their employers fired them.

The two sides will fight it out in Augusta this session when the Legislature takes up a bill that aims to align Maine's definition with the more limited one in the federal Americans with Disabilities Act.

The commission adopted the new rules in response to a Maine Supreme Court ruling in April that effectively struck down the old rules on grounds that they departed too much from state law.

The Legislature in 1974 intended to include people with a wide range of physical and mental disabilities when it added the disabled to the class of people who deserve civil rights protection under the Maine Human Rights Act, the court concluded in its 4-3 decision.

The commission's new rules define disability as "any disability, infirmity, malformation, disfigurement, congenital defect, or mental condition caused by bodily injury, accident, disease, birth defect, environmental conditions or illness."

The rules say that more ordinary conditions, such as the flu or minor cuts and bruises, would not qualify.

The rules help both employers and workers because they provide more guidance about what kind of impairments qualify as a disability, said Patricia Ryan, executive director of the Maine Human Rights Commission, the state agency charged with enforcing Maine's anti-discrimination laws.

But lawyers on both sides agree on one thing: The new rules represent a big change from the status quo.

Tuesday, January 02, 2007

Disability/Minimum-Wage Politics in Arizona

See this interesting article, which begins:

The Governor's Council on Developmental Disabilities has announced its support for ‘‘uniform application'' of the voter-approved law, which takes effect Monday and creates a state minimum wage of $6.75 an hour.

That means paying the minimum to disabled workers, who until now have been exempted from the minimum wage by federal law. However, Arizona's minimum-wage law does not include such an exemption.

The situation has caused a split among advocates for the developmentally disabled. Some argue that lawmakers should scramble to create an exemption; others contend that the minimum applies to all workers.

The council, which is mandated by federal disability law, endorsed application of the minimum wage to all workers, knowing that some employers were saying jobs would be lost.

‘‘The federal law really focuses on the integration of people in the community,'' said Jami Snyder, the council's executive director. She said one way to do that is to make their pay commensurate with that of other workers.

‘‘We're just trying to open people's eyes and make sure people with disabilities are not devalued in this,'' said Carrie Hobbs Guiden, executive director of the Arc of Arizona - an advocacy group for the developmentally disabled.

I'll definitely be following this.

More Good NCLB News

This time from Pennsylvania:

Test scores for special education students in the state's 501 school
districts are reportedly on the rise with local educators lauding the efforts of
inclusion implemented in January under No Child Left Behind (NCLB).

The law was revised to include a special emphasis on the achievement gap
for all states that accept Title 1 federal grants that provide funding for
remedial education programs for poor and disadvantaged children in public
schools and in some private programs.

A class action lawsuit filed
against the Pennsylvania Department of Education also determined that starting
last January special education students be integrated into the regular education
classroom for instruction where the special education teacher and regular
education teacher co-teach.

To what extent however special education students remain in the regular
classroom depends on the needs outlined in their Individualized Education Plan
(IEP) determined by parents and school officials.

Dr. Dennis Spinella, superintendent at Frazier School District, said the
2005-2006 PSSA scores have dramatically increased across the board in reading
and math with special education students achieving proficiency in both areas
because of the move.

Anne Peters, Frazier special education supervisor, attributed the higher scores to a combination of administrating a state-sponsored assessment formatted after the PSSA at the high school/middle school and working with elementary students not only on the level they are functioning on but also at their current grade level.

"This way they're getting double practice and becoming familiar with (test) content," added Peters.

Spinella also praised the district's staff for their efforts of the transition, especially now that all students are required by the state to be proficient in reading and math by 2014 under NCLB.

Vermont Supreme Court Holds State Public Accommodations Law Applies to Prison

Last week, the Vermont Supreme Court issued its opinion in Department of Corrections v. Human Rights Commission. In its decision, the court held that the state's public accommodations law, which prohibits disability discrimination, applies to state prisons. The opinion begins:

The issue in this appeal is whether the VermontFair Housing and Public Accommodations Act, 9 V.S.A. §§ 4500-4507, applies to state correctional facilities, thereby giving the Human Rights Commission jurisdiction to investigate complaints filed by state prisoners alleging violations of the Act. Based upon its determination that the Act covers state prisons, the superior court denied the Department of Corrections' motion to quash a subpoena served by the Commission in conjunction with a prisoner's discrimination claim. The Department contends that the court erred insofar as prisons do not offer services or benefits to the "general public" and thus are not "places of public accommodation" subject to the Commission's investigatory powers. We conclude that the Legislature intended to make all governmental entities, including state prisons, subject to the Act. Accordingly, we affirm the superior court's decision.

¶ 2. On appeal, the Department relies primarily on a single phrase in one statutory definition to support its argument that state prisons are not covered by the public accommodations statute. Nothing in the language or history of the statute, however, indicates that the Legislature intended the law to cover some governmental entities, but not others, depending on whether, or how directly, they offer services or benefits to the general public. The phrase "general public" within the statutory definition of a "place of public accommodation" is a holdover from the original 1957 statute, which, like similar laws in other jurisdictions, was aimed at assuring that private establishments catering to members of the general public did not discriminate on the basis of race or other specified criteria. Hence, a "place of public accommodation" was defined as an establishment that provided benefits or services to the general public. The critical inquiry, then, in determining which private entities were covered by the law was whether a particular establishment served the general public. That question makes little sense, however, when applied to public or governmental entities, which are created for the very purpose of serving the general public.

¶ 3. The most reasonable interpretation of the statute, particularly considering that it must be liberally construed to effectuate its remedial purpose, is that the Legislature intended to make all governmental entities, in addition to all private entities offering services or benefits to the general public, subject to the Act's anti-discrimination provisions. There is support for this interpretation not only in the statutory language, but also in the history of the statutory amendments and the legislative policy underlying the Act. In particular, the legislative history of the 1992 amendment unequivocally confirms that the Act was intended to apply to all governmental entities and to provide a local enforcement mechanism for claims actionable under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12300, which applies to all public entities, including state prisons.

More on NCLB and Students with Disabilities

Eduwonk kindly picks up my earlier post on NCLB and points out this interesting testimony by Madeline Will of the National Down Syndrome Society supporting the statute. Some key parts of the testimony:

Over three decades ago my son, Jon Will, was born with Down syndrome. Since this was before IDEA, there were no academic expectations for children with intellectual disabilities. Even after the EHA P.L. 94-142 had passed and he progressed through the education system, I found I had to persuade a surprising number of his teachers that he could benefit from reading instruction. Today children with Down syndrome are reading and meeting other academic goals that once were inconceivable. They are even going to postsecondary education programs at more than 100 colleges around the country. The high expectations of parents have been the driving force behind these achievements. It is time for the educational institutions in this country to have the same high expectations.

It is fitting, therefore, that NCLB is based on the premise that all children can be proficient on their State content standard. A very limited percentage of students with disabilities may need alternate or modified achievement standards to determine the breadth, depth and complexity of their knowledge, but they are all expected to receive instruction aligned to the State content standard for the grade in which they are enrolled. This premise makes NCLB more than an accountability statute; it is the institutional embodiment of the high expectations that students with disabilities need to succeed. You may hear people testify that NCLB has a negative impact on children with disabilities. On the contrary, with its focus on accountability and the requirement to disaggregate data by subgroup, it is one of the best things to have happened in a very long time. The negative impact comes from scape-goating and low expectations perpetrated by those who do not want to be held accountable for children with disabilities or engage in the hard work that it will take to implement this law properly.

* * *

Most of the problems blamed on the statutory provisions of NCLB are a product of the poor implementation of both IDEA and NCLB, and do not require statutory changes to correct. NDSS will support any recommendation that helps schools, districts and States make AYP by improving instruction and assessments. However, we urge the Commission to reject any recommendation that, under the guise of “flexibility”, would improve AYP by lowering standards or otherwise diminishing accountability. The Commission should also consider the negative effect that State flexibility has on the comparability of data across the States and the transparency of AYP results. School, district and State report cards are meaningless if parents are not given a clear explanation the numerous complex variables (such as N size, confidence intervals) that are factored into AYP calculations.