Ninth Circuit on Molski

Today, the Ninth Circuit issued an opinion in a case brought by Jarek Molski, who should be familiar to readers of this blog. Molski is a well-known serial ADA public accommodations litigant in Southern California, who has been declared a "vexatious litigant" by one court. The case the court decided today, Molski v. M.J. Cable, Inc., involved Molski's suit under the ADA and California's Unruh Civil Rights Act against a restaurant in Woodland Hills. The evidence at trial made clear that the restaurant was inaccessible in violation of Title III of the ADA, but the jury found no violation. Rejecting a motion for a new trial, the district judge concluded that the jury could have properly found that Molski was not an "individual" entitled to protection under the ADA but instead was a business (who makes money bringing accessibility suits).

In today's opinion by Judge Ferguson, the Ninth Circuit reversed. The court concluded that the evidence compelled a finding that the restaurant violated the ADA. As for the notion that Molski wasn't an "individual," the court found no basis in the statute for that reading. These holdings seem to me quite correct. And I have to love that the court cited my UCLA piece in support of its holding!

Judge Posner Reads Sutton For All It's Worth -- And Then Some?

Via Howard Bashman, I see that the Seventh Circuit today issued an opinion in EEOC v. Schneider National, Inc.. The EEOC brought the case on behalf of a truck driver who, after being diagnosed with neurocardiogenic syncope (which causes fainting spells) was dismissed from his job. (The company dismissed him even though he had driven over a million miles for them without an avoidable accident.) The company had previously employed a driver with neurocardiogenic syncope, and he had driven his truck off of a bridge and died. Although there was no way of knowing whether the condition caused his accident, the company decided that it was better safe than sorry and adopted a "zero tolerance" policy toward drivers with the condition -- even though it is a treatable condition and federal safety regulations permit people with the condition to drive over-the-road trucks. It was under the "zero tolerance" policy that the company fired the truck driver.

In an opinion by Judge Posner, the court upheld the grant of summary judgment to the employer. Applying the Supreme Court's decision in Sutton v. United Airlines, the court held that the company did not "regard" the driver's impairment as one that substantially limited major life activities. The company recognized that it might be safe for someone with neurocardiogenic syncope to drive trucks -- as the federal safety regulations permit -- but it decided that it didn't want to take that risk. Judge Posner wrote:

No doubt the risk that a person afflicted with this disorder will faint while driving is small, as otherwise Hoefner wouldn’t be allowed to drive big trucks, as he is, for the trucking company that with full knowledge of his medical history hired him after Schneider fired him. But Schneider is entitled to determine how much risk is too great for it to be willing to take. “[A]n employer is free to decide that physical characteristics or medical conditions that do not rise to the level of an impairment—such as one’s height, build, or singing voice—are preferable to others, just as it is free to decide that some limiting, but not substantially limiting, impairments make individuals less than ideally suited for a job.” Sutton v. United Air Lines, Inc., supra, 527 U.S. at 491.

* * *
But once burned, twice shy. Because of Kupsky’s unfortunate accident, Schneider may be excessively risk averse, as United Air Lines and other airlines (Sutton v. United Air Lines, Inc., 130 F.3d 893, 903-04 (10th Cir. 1997), aff’d 527 U.S. 471 (1999)) may be in refusing to hire pilots who do not have at least 20-100 uncorrected vision. 527 U.S. at 475-76. But as there is no evidence that Schneider exaggerates the severity of Hoefner’s condition and the risk he poses as a driver, there is no violation of the Americans with Disabilities Act. Cassimy v. Board of Education, 461 F.3d 932, 937 (7th Cir. 2006); Ogborn v. United Food & Commercial Workers Union, 305 F.3d 763, 767-68 (7th Cir. 2002); Katz v. City Metal Co., 87 F.3d 26, 32-33 (1st Cir. 1996).

The EEOC has confused risk with risk aversion. Two companies might each correctly believe that the risk of a particular type of accident was 1 in 10,000, yet one company, perhaps because it was small, financially fragile, owned by a trust, or as in this case had had an experience of the risk materializing, might be unwilling to assume the risk. That would be a decision irrelevant to liability under the Americans with Disabilities Act, even if that company’s degree of risk aversion was “unique” in its industry. EEOC v. J.B. Hunt Transport, Inc., 321 F.3d 69, 76 (2d Cir. 2003).

The court went on to hold that the EEOC would lose in any event under Sutton, because at most the company thought that the driver's condition prevented him from driving over-the-road trucks, and an inability to drive over-the-road trucks is not a substantial limitation in a major life activity.

The second point seems to me a reasonable reading of Sutton and Murphy -- though there is much to criticize in Murphy, in particular, on this point. But, to the extent it is a separate holding -- and the court's decision seems to say that it is -- the discussion of risk-averseness seems to me quite problematic. Judge Posner seems to be saying that, so long as an employer knows it's acting on the basis of irrational prejudice or fear, it is free to discriminate against people with impairments that aren't really limiting all it wants. An employer can say, "I know that a person with medicated epilepsy can effectively teach, but it freaks me out that there's this fraction-of-a-percent chance that he will have a seizure in the middle of class. Let the other schools hire him -- I know they will, and so much the worse for me, but that's just how I feel." Is it really sensible to conclude that the ADA has nothing to say about such a decision?

April 9 Conference on UN Disability Rights Convention

Arlene Kanter passes along this announcement:

Join us on April 9^th 2007:

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The new UN Disability Rights Convention:

Building support in the United States for

ratification and implementation

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On March 30, 2007, the United Nations Convention on the Rights of Persons with Disabilities will open for signature and ratification. On April 9, 2007, the disability, human rights, and international development communities will come together to examine the Convention, its guarantees, and its implications for US law and foreign policy. We will consider ways to encourage US government and public support.

The United States is a country that has historically been a world leader in the recognition of disability rights. This conference examines how we can bring about continued US leadership in the international protection of disability rights.

9:00 – 9:30 a.m. Welcome and Introduction

9:30 – 11:00 a.m. Overview of the new UN Convention on Disability Rights

11:30 a.m. – 1 p.m. Implementation through Domestic Law, Policy & Practice

1:00 – 2:30 p.m. Keynote Address: Mr. Aryeh Neier, Open Society Institute

2:30 – 3:00 p.m. Video presentation: Overcoming Abuses in Orphanages & Institutions

3:00 – 4:30 p.m. Implementation through International Advocacy and Development Policy

4:45 – 6:15 p.m. Strategy Session: Seeking U.S. Government & Public Support

6:15 p.m. Reception

For registration information, please visit: http://www.wcl.american.edu/secle/

CLE Credit Available

Co-Sponsors:

Washington College of Law, American University

Mental Disability Rights International

US International Council on Disability

Syracuse University College of Law Disability and Policy Program of the SU Center on Human Policy, Law, and Disability Studies

Syracuse Journal of International Law and Commerce

World Institute on Disability

Weber on Disability Harassment

Mark Weber just sent along his new book, Disability Harassment. It's a really great book that will now be the source for enlightenment on disability harassment. Go out and pick up a copy for yourself.

Supreme Court Denies Cert. in Univ. of Puerto Rico v. Toledo

In Monday's orders list, the Supreme Court denied cert. in University of Puerto Rico v. Toledo. The University of Puerto Rico sought cert. to review a decision of the First Circuit, which held that Title II of the ADA validly abrogates state sovereign immunity in the context of public education. Four circuits have so held; none has come out the other way since the Supreme Court's decision in Tennessee v. Lane.

Bradblog on Disability Rights Groups and Electronic Voting

Check out this post. An excerpt:

Voters with disabilities are finally beginning to speak out against the use of Direct Recording Electronic (DRE, often known as "touch-screen") voting systems!

After years of DRE supporters, and indeed the Help America Vote Act (HAVA) of 2002, using the canard that blind and disabled voters must use DREs to vote privately and independently, a number of leaders in the disabilities community are speaking out against their having been used as a wedge to force the nationwide implementation of such disenfranchising, dangerous voting systems.

Two different landmark statements on the issue have now been released, The BRAD BLOG has learned. One statement [PDF] released last week by the Disability Law Center and the ACLU speaks in support of the decision by the Massachusetts Secretary of State to approve the use of ballot marking devices, as opposed to DREs, for use by the state's disabled voters.

The second, released today to The BRAD BLOG in advance of Congressional subcommittee hearings tomorrow, is signed so far by more than 20 leaders of the blind and disabled communities and calls for "an immediate ban" on DRE voting systems. Like the release from the Disability Law Center, the newly released statement crushes the long-overused myth that such unsecure, disenfranchising, failed technology is required for disabled access to private, independent voting. (The complete statement is posted at the end of this item.)

Sensenbrenner to Give Third Annual Coelho Lecture at NYLS

Seth Harris passes along this announcement of the Third Annual Coelho Lecture at the New York Law School. Here's the text of the invite letter:

Dear Friend:

I invite you to join me in New York Law School's Wellington Conference Center at 8:30AM on March 26th for the Third Annual Tony Coelho Lecture in Disability Employment Law & Policy. Our speaker will be Congressman Jim Sensenbrenner, the former Chairman of the House Judiciary Committee, and one of the most important voices in Congress on disabilities employment issues.

This is a critical time in Washington for the Americans with Disabilities Act. As you know, the Supreme Court has dramatically curtailed the scope of this essential civil
rights law. Most troubling, the Court has interpreted the ADA to deprive millions of Americans of the law's protections. That's not what Jim Sensenbrenner and I intended when we originally sponsored the ADA in the late 1980s.

Now, I am working with Congressman Sensenbrenner to restore the ADA. His speech on March 26th will lay out some of the principles and goals of the legislation he will co-sponsor with other leading members of Congress from both parties. In my view, the speech will be a critical moment for the disabilities movement and anyone who is interested in civil rights and justice. I hope you will be there to witness
it.

If you would like to attend the Coelho Lecture, please go to www.nyls.edu/coelho to get more information and to register or simply respond to this email. If you cannot attend the live Coelho Lecture, you can watch a national webcast at the time of the event or any time thereafter. Again, register for the webcast at www.nyls.edu/coelho.

I look forward to seeing you on March 26th.

Tony Coelho

Smith on Mental Illness and the ADA

New on SSRN: Deirdre M. Smith, The Paradox of Personality: Mental Illness, Employment Discrimination, and the Americans with Disabilities Act. The abstract:

Both medicine and the law devote considerable concern to drawing lines, that is, to classifying and making distinctions. In medicine, such line-drawing occurs when a person is designated healthy or ill, normal or disordered. In the law, such line-drawing determines who does and does not bear legal responsibility for a given situation. This Article reviews the demarcation drawn by psychiatry and the courts between "disfavored personality" and "mental illness," a dichotomy not based upon empirical science and therefore, wholly susceptible to social construction and implementation. While society may pathologize noxious personalities, thus making them "disabilities," it is loath to extend disability-based legal protections to people with such personalities. Specifically, the application of the Americans with Disabilities Act ("the ADA") to persons with "impaired" personalities is regarded by some as improperly removing or excusing their responsibility for their own behavior, while
improperly assigning responsibility to the people who must interact with them, notably employers. Thus the invocation of "personality" in disability discrimination claims implicates a collision between societal and psychiatric attitudes towards certain psychological conditions and the law. In the case law developed under the ADA, courts have erred on the side of a restrictive view of the meaning of "mental illness" by employing approaches that ensure that "personality issues" are eliminated from ADA analyses. This trend has swept so broadly, the Article argues, as to render the ADA a limited tool both for remedying past discrimination and for compelling society to examine the place of people of with mental illness in the workplace.

Disability Rights Hits TAPPED

Over at TAPPED, the blog of the American Prospect, Ben Adler has this interesting disability rights-oriented post about the whole Ashley business. Surf on over and check it out.

Selmi on the Supreme Court's ADA Jurisprudence

Via Paul Secunda, I see that Mike Selmi's piece on the ADA, Interpreting the Americans with Disabilities Act: A Case Study in Pragmatic Judicial Reconstruction, is on SSRN. The abstract:

This article challenges the prevailing academic consensus regarding the Supreme Court's interpretation of the Americans With Disabilities Act ("ADA"). In a series of cases over the last decade, the Supreme Court has sharply limited the scope of the statute by narrowly defining what constitutes a disability, and most commentators have attributed the cases to a judicial backlash or a lack of empathy for the disabled. This article offers a counter narrative.

Although the Supreme Court's interpretations have plainly narrowed the scope of the statute, and without regard to congressional intent, I suggest that the decisions are largely consistent with congressional expectations, as well as social norms regarding who ought to be defined as disabled. The ADA was passed under unusual circumstances. Despite overwhelming congressional support, there was broad indifference to the substance of the legislation, and the absence of a substantial social movement led to a broadly worded statute that lacked a strong commitment to expanding the definition of disability. The Supreme Court has subsequently rewritten the statute to protect its own institutional interests and to bring the statute in line with public expectations. In the last part of the paper, I analyze the cases in the context of various theories of statutory interpretation, including positive political theory which identifies the Supreme Court as a strategic player seeking to impose its own preferences whenever it can. In the context of the ADA, these preferences were primarily institutional rather than political, although they also have furthered the interests of the business community, and the absence of a strong disability rights social movement has allowed the Court's decisions to avoid a congressional override.

Lawsuit Seeks to End Segregation of Mentally Ill Prisoners

See this article by that title. It begins:

An advocacy group filed a federal lawsuit today alleging that the state Department of Correction's segregation of mentally ill prisoners in isolated cells for 23 hours a day has led to numerous prisoner suicides and self-mutilations.

The lawsuit, filed in US District Court in Boston by attorneys for the Disability Law Center, seeks to end the practice, which advocates say violates the constitutional rights of several hundred mentally ill inmates in the state prison system, which has a population of about 11,000.

The lawsuit was filed after an intensive yearlong review in which advocates visited inmates at Susan-Baranowski Correctional Facility and MCI-Cedar Junction, toured the units, and reviewed records.

"We had worst fears confirmed," said Stanley J. Eichner, executive director of the Disability Law Center. "The system is broken. These men are being subjected to intolerable conditions which cause them to gravely harm themselves, too often fatally."

Tenth Circuit on IDEA Exhaustion, and IDEA's Relationship with the ADA and Rehabilitation Act

Yesterday, the Tenth Circuit issued its opinion in Ellenberg v. New Mexico Military Institute. The case involved a teenager who applied to the New Mexico Military Institute (a state secondary school) and was rejected because of a psychiatric disability. She brought suit under the IDEA, the ADA, and the Rehabilitation Act. The Tenth Circuit held that, because she had not challenged the NMMI's decision through the IEP process, her IDEA claim had to be dismissed on exhaustion grounds. Along the way, the court made the following tangential observation, which is sure to be quoted a lot by states and school districts:

The Ellenbergs misunderstand the IDEA. In their brief, which relies heavily on anti-discrimination hyperbole, they view the IDEA as a virtual treasure trove providing disabled children with a limitless number of substantive rights. The IDEA, however, is not so broad. It is a spending statute that imposes obligations on the states to provide certain benefits in exchange for federal funds. See Rowley, 458 U.S. at 204 n. 26. Although “Congress has broad power to set the terms on which it disburses federal money to the States, ... when Congress attaches conditions to a State's acceptance of federal funds, the conditions must be set out ‘unambiguously.’ “ Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 126 S.Ct. 2455, 2459 (2006) (internal citation omitted). Courts engage in a two-step inquiry to determine if a state has satisfied its substantive IDEA obligations. “First, has the State complied with the procedures set forth in the Act? And second, is the individualized educational program developed through the Act's procedures reasonably calculated to enable the child to receive educational benefits?” Rowley, 458 U.S. at 206-07. If the answer to both is yes, “the State has complied with the obligations imposed by Congress and the courts can require no more.” Id. at 207.

Citing the IDEA's 30-year old requirement that states “establish[ ] a goal of providing full educational opportunity to all children with disabilities,” see 20 U.S.C. § 1412(a)(2), plaintiffs argue that the IDEA requires absolute educational equality. In support, they point to language contained in Congress' recent reauthorization of the IDEA, specifically Congress' finding that it is in the “national interest that the Federal Government have a supporting role in assisting State and local efforts to educate children with disabilities in order to improve results for such children and to ensure equal protection of the law.” 20 U.S.C. § 1400(c)(6) (2005). Plaintiffs, however, have not presented us with a single case from any court recognizing a legally cognizable anti-discrimination claim brought under the IDEA.^FN10 Moreover, the Supreme Court has explicitly rejected a similar attempt to transform the IDEA into an anti-discrimination vehicle in a 30-year old case, the very case cited by plaintiffs in support of their view. See Rowley, 458 U.S. at 198 (noting that in passing the IDEA Congress did not intend “to achieve strict equality of opportunity or services” and further holding “the requirement that a state provide specialized educational services to handicapped children generates no additional requirement that the services so provided be sufficient to maximize each child's potential ‘commensurate with the opportunity provided other children.’ ”); see also Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 623 n. 6 (1999) (Thomas, J., dissenting) (noting that the IDEA is not a general anti-discrimination statute).

But that observation wasn't all bad for the Ellenberg's: Because their ADA and Rehabilitation Act claims were purely antidiscrimination claims, the court concluded that those claims could proceed, notwithstanding the failure to exhaust the IDEA claim. The court's language on this point is sure to be quoted a lot by parents:

[E]xempting plaintiffs from exhaustion in this circumstance prevents inefficiency and waste of judicial resources. Limited obligations are imposed on states under the IDEA. Educational experts who develop IEPs must identify the students' LRE and select an educational placement, but they do not decide which schools a student is otherwise qualified to attend. Administrative officers reviewing plaintiffs' IDEA claims must consider the same limited questions that we ask: (1) Has the student been given a FAPE?; and (2) Was the student given a FAPE in the least restrictive environment? Rowley, 450 U.S. at 206-07. At no point would the administrative process offer insight into the merits of a discrimination claim. Requiring exhaustion before the Ellenbergs could pursue their claims under the ADA and RA would create an anomalous result: Plaintiffs who concede a students' IDEA rights have not been violated, or have settled the IDEA claims, would be required to craft an IDEA claim and proceed through the state administrative process to determine if the students' IDEA rights have been violated. See W.B. v. Matula, 67 F.3d 484, 496 (3d Cir.1995) (recognizing that plaintiffs would not be required to use the IDEA's administrative framework when they have settled their IDEA claims).

Turning to the merits of the RA and ADA claims, contrary to NMMI's suggestion, our precedent does not hold that a party's discrimination claims under the RA and the ADA must automatically be dismissed if an IDEA claim fails.^FN22 Any other interpretation of our caselaw would mean that a state educational institution that receives public funding could openly discriminate against applicants with disabilities so long as the state offered the student a FAPE in the least restrictive environment. Thus, even if plaintiffs conceded that New Mexico fully satisfied its IDEA obligations with respect to S.E., they could pursue claims under the ADA and the RA on the grounds that S.E. was precluded from receiving a state benefit-military-style education-provided to her non-disabled peers.

Wasserman on Reimbursement and the IDEA

New on Westlaw (sorry, no free link yet): Lewis M. Wasserman, Reimbursement to Parents of Tuition and Other Costs Under the Individuals with Disabilities Education Improvement Act of 2004, 21 St. John's J. Legal Comment. 171 (2006). The introduction:

A substantial number of judicial decisions involve parents of disabled children who are dissatisfied with the programs and/or services offered to their child by public agencies. These parents opt to enroll their child in programs and/or services they deem appropriate to meet their child's special needs and then seek reimbursement for the associated expenses under the Individuals with Disabilities Education Improvement Act of 2004 (hereinafter "IDEA/2004"). These programs and services typically include private school programs, tutoring, supplementary services and independent medical or other professional evaluations of their child for the purpose of ascertaining their special needs. At times, although satisfied with the Individualized Education Program (hereinafter "IEP") their school district created for their child, parents purchase special education or related services and then seek reimbursement for such expenses, contending that the school district did not implement the IEP as required. However, parents are not always successful in obtaining reimbursement.

This article examines the elements for reimbursement under IDEA/2004, namely denial of a free appropriate public education for the child and the appropriateness of the programs/services purchased by the parents, through judicial decisions rendered under IDEA/2004's predecessor statutes to reimbursement claims under IDEA/2004. The article will also examine complete and partial defenses to reimbursement claims under IDEA/2004 based on, among other things, parental conduct, program/services cost, and statutes of limitation. Finally, the article will synthesize the current statutory scheme with case law to render practical advice regarding the prosecution of complaints seeking reimbursement under IDEA/2004 and make suggestions for further amendment to IDEA which may be helpful in attaining the Congressional goal that all children with disabilities receive a free appropriate education which meets their special needs.

What a timely article (given the Supreme Court's recent cert. grant in Tom F.)!

Student Note on Reasonable Accommodation in "Regarded As" Cases

Just published: Sarah J. Parrot, Note, The ADA and Reasonable Accommodation of Employees Regarded As Disabled: Statutory Fact or Bizarre Fiction?, 67 Ohio St. L.J. 1495 (2006). The abstract:

The debate continues as to whether employers are required by the Americans with Disabilities Act ("ADA") to provide reasonable accommodation for employees who they regard as disabled. The issue, which was recently rekindled after the Tenth and Eleventh Circuits joined the debate, has created a significant split among the federal circuit courts. The Fifth, Sixth, Eighth, and Ninth Circuits have held that employers have no duty to accommodate employees regarded as disabled. The primary basis for their position is that such a rule prevents the "bizarre" result of requiring employers to accommodate disabilities that do not in fact exist. However, the First, Third, Tenth, and Eleventh Circuits have held that employers must accommodate perceived disabilities. In determining that a duty to accommodate is consistent with the ADA's plain language and its purpose of eradicating disability-based discrimination, these courts have also suggested that their rule facilitates a practical employer-employee relationship, one which helps to disabuse employers of mistaken perceptions. This Note contends that employers should be required to provide reasonable accommodation for employees regarded as disabled, and that liability for failure to accommodate should be imposed in most cases.In accordance with the plain language and purposes of the ADA, a case-by-case approach best achieves the ADA's basic purposes of eliminating disability-based discrimination and promoting equal opportunity for individuals with disabilities.

Eleventh Circuit on Arrests and the ADA

Today, in Bircoll v. Miami-Dade County, the Eleventh Circuit issued an opinion that addressed the application of ADA Title II to police arrests. The case involved an individual with a severe hearing impairment who was arrested for DUI. He claimed that the police failed to provide effective communication to him at three points: during the administration of a field sobriety test; during conversations at the police station after his arrest; and during his overnight lockup in jail. Defendants argued that the ADA does not apply to arrests, but the Eleventh Circuit rejected that argument and held that Title II governs everything state and local officials do. But although the court concluded that the ADA applied, it also concluded that the police had made adequate accommodations in the circumstances for the plaintiff's hearing impairment. Accordingly, the Eleventh Circuit upheld the district court's grant of summary judgment to the defendants.

This looks like a nice, careful opinion to me. The court properly recognized that the ADA applies and spent its time assessing the facts to determine whether the defendants acted reasonably. That's the way courts should approach these cases -- instead of trying to carve areas of state government out of Title II's unqualified coverage.

EEOC Health Care Worker Guidance: A Dissenting View

See this piece criticizing the EEOC's new healthcare worker/ADA guidance. Is this shrill?

On Feb. 26, 2007, the Equal Employment Opportunity Commission issued "Questions and Answers about Health Care Workers and the Americans with Disabilities Act." Revealing a significant bias against healthcare employers, the EEOC’s Q&A Fact Sheet takes an aggressive stance interpreting the ADA and its reasonable accommodations requirements, thereby signaling its intent to increase enforcement efforts in the healthcare industry. Why does the EEOC single out healthcare employers and what does it mean for your facility?

Healthcare is the largest industry in the American economy, employing more than 13 million individuals. Ironically, despite their focus on making people well, healthcare workers are nearly twice as likely to be injured in the workplace – and therefore potentially protected under the ADA – than workers in any other industry. At least one regional attorney for the EEOC diagnosed healthcare employers as having "special knowledge about disabilities that puts them in leadership roles among employers, and they should be especially sensitive to this."

Two New Disability Pieces on SSRN

New on SSRN:

1. Kate Mueting, A Clear Path through the Labyrinth: A Case for Allowing Victims of Employment Retaliation and Coercion to Recover Legal Damages under the Americans with Disabilities Act. The abstract:

More than a decade after Congress passed the Americans with Disabilities Act of 1990 (ADA) and expanded the remedies available for disability discrimination in employment with the Civil Rights Act of 1991, the Seventh Circuit in Kramer v. Banc of America Securities, 355 F.3d 961 (7th Cir. 2004) became the first federal appellate court to determine that victims of ADA retaliation and coercion in employment are ineligible for legal damages and jury trials. After detailing the law and analysis implicated by this issue, this Note will assert that, based on the language, structure, and legislative histories of the ADA and the Civil Rights Act of 1991, the Seventh Circuit erred in its approach and conclusion. Furthermore, allowing victims of ADA retaliation and coercion in employment to recover punitive and compensatory damages is necessary to effectively further the ADA's anti-discrimination goals.

2. Christopher Walker, Adequate Access or Equal Treatment: Looking Beyond the Idea to Section 504 in a Post-Schaffer Public School. The abstract:

In light of the Supreme Court's decision this Term in Schaffer v. Weast, this Note analyzes the current state of special education law and argues that parents, attorneys, and advocates should look beyond the Individuals with Disabilities Education Act (IDEA) to Section 504 in the post-Schaffer public school. This Note shows how these two standards operate in the context of state special schools for the blind and deaf. A state-by-state survey of thirty states' special school admission policies and practices reveals the IDEA's limitations and Section 504's potentially complementary role. Although other works have briefly compared the IDEA and Section 504, this Note is the first post-Schaffer comparison and also the first to use a specific policy context to demonstrate how the two statutes interact and complement each other; it is also the first published study on the exclusion of multi-disabled students from state special schools. As the state special school context illustrates, Section 504 is a powerful, yet oft-neglected, complement to the IDEA. Whereas the IDEA focuses on adequate access to a free appropriate public education (FAPE), Section 504 emphasizes equal treatment within federally funded programs. This Note advocates that policymakers and special education attorneys understand how to utilize both Section 504 and the IDEA in order to make sure that no child is left behind or otherwise excluded from educational opportunities solely on the basis of a
disability. This understanding is particularly important in the post-Schaffer public school.

Colker on the "Mythic 43 Million"

New on BEPress: Ruth Colker, The Mythic 43 Million Americans with Disabilities. The abstract:

Although Congress stated in its first statutory finding that it intended the Americans with Disabilities Act to protect at least 43 million Americans from disability discrimination, the Supreme Court has interpreted this statute so that it covers no more than 13.5 million Americans. More importantly, by using Census data, this article demonstrates that the ADA covers virtually no Americans who are both disabled and able to work, eviscerating the employment discrimination provisions of the ADA.

This article places that problem in the larger context of the Court undermining Congress’ efforts to protect discrete and insular minorities from employment discrimination. Although Congress has sometimes responded to that hostility by enacting “restoration legislation,” this article argues that such restoration efforts should be unnecessary. The Court should correct its errors and engage in a respectful relationship with Congress so that Congress can move on to new items on its legislative agenda rather than revisit prior items.

Good First Circuit IDEA Case

Yesterday, in Mr. I v. Maine School Administrative District No. 55, the First Circuit issued a very lengthy and interesting IDEA opinion. The case involved a child with Asperger's Syndrome, who was performing at an above-average level academically. The First Circuit affirmed the district court's determination that, because the child's condition led to isolation, inflexibility, and self-mutilation during schooltime, her condition "adversely affect[ed]" her educational performance and thus constituted a disability under the IDEA. The state had argued that the IDEA did not give it notice that "adversely affect" could be read so broadly, and that interpreting the statute to reach this case would therefore violate the Spending Clause. But the court rejected that argument and found the law unambiguous. I suspect this will be an important decision for children with Asperger's, who in many cases will perform at an above-average level academically but still need special education and related services under the IDEA.