D. Colo. on ADA Title II Abrogation in Employment Context

In Cisneros v. Colorado, 2005 WL 1719755 (D. Colo., July 22, 2005), the district court ruled that Title II does not validly abrogate state sovereign immunity as applied to claims of employment discrimination or retaliation for challenging employment discrimination. A fairly straightforward application of Garrett and Lane.

Mary Johnson on Housing Discrimination Against People with Disabilities

On her new blog, here.

D.C. Circuit Weighs in on IDEA Expert Fee Split

There is an established circuit split on the question whether prevailing parents may recover expert fees, in addition to attorney's fees, under the IDEA, and the issue is currently before the Supreme Court in a petition for certiorari filed about a month ago (Arlington Central School District v. Murphy, No. 05-18). Yesterday, the D.C. Circuit weighed in on the split. In Goldring v. District of Columbia, the court ruled, by a 2-1 vote, that prevailing parents may not recover expert fees. Judge Henderson wrote the opinion, and Judge Rogers dissented.

Denial of Preliminary Injunction in Volusia County Voting Accessibility Case

In National Federation of the Blind v. Volusia County, 2005 WL 1712038 (M.D. Fla., July 22, 2005), the court denied the plaintiffs' request for a preliminary injunction. Relying on, among other statutes, the ADA, Plaintiffs had sought an order requiring the county, by the next election, "to provide voting machines which enable blind persons to vote secretly and independently." But the court denied the preliminary injunction. Relying on other lower-court precedent, the court ruled that the ADA doesn't require that states provide individuals with disabilities the opportunity to cast a secret ballot independently.

D. Maine on Constitutionality of Title II As Applied to Public Mental Health Services

In Buchanan v. Maine, 2005 WL 1711774 (D. Maine, July 22, 2005), the court ruled that Title II of the ADA does not validly abrogate state sovereign immunity as applied to cases seeking access to public mental health services. Without much analysis, the court noted that most (though not all) of the lower-court cases since Tennessee v. Lane have confined that case to circumstances where the defendant's conduct implicates fundamental constitutional rights, and the court asserted that no fundamental constitutional rights were implicated here. The court allowed the plaintiff's suit to proceed, however, on the ground that the state might have waived its sovereign immunity by entering into a consent decree.

Disability Act Doesn't Do Enough, Says Some

Yes, that's really the title -- "says some" -- but it's another ADA retrospective, here.

Businesses Lagging in Hiring Disabled

See this article by that title, which is a fair discussion of the problems the ADA has had in the workplace arena.

Settlement of Title III Case Against Publix Supermarkets

See this article, which begins:

Final approval of a compliance agreement has been reached in U.S. District Court on a federal class-action suit against Publix Super Markets Inc. The suit was filed by people with disabilities, and resulted in changes being made in Publix stores.

Lakeland-based Publix has agreed to pay up to $160,000 in lawyer fees, costs and litigation expenses for the disabled plaintiffs, spokeswoman Maria Brous said, and up to $100,000 to cover any additional fees during the six-year period it has to implement the terms of the settlement.

Brous said in May the chain already had reached 85 percent compliance in the 1998 suit, and Monday added that the percentage has increased. She said Publix has made changes over the years in parking lots, restrooms and at ATMs. The chain has more than 850 stores in Florida, Georgia, Alabama, South Carolina and Tennessee.

The suit, Brous said previously, originated over issues found at five or six stores in the Miami-Dade County area. An agreement was reached between the plaintiffs and Publix to involve all the stores in the settlement.

Harkin on ADA Anniversary

See this op-ed he wrote, which begins:

Today, in ceremonies and speeches across the nation, people will celebrate the 15th anniversary of the Americans with Disabilities Act. It will be saluted as one of the great civil-rights laws of the 20th century - a long-overdue emancipation proclamation for people with disabilities.

But as chief sponsor of the law, I never lose sight of the seemingly mundane changes it has made possible. I remember, during the long campaign to pass ADA, explaining to a young woman in a wheelchair how the law would open new opportunities in education and employment. She said, "Senator, I know that's important. But I just want the freedom to go out and buy a pair of shoes, just like anybody else."

How soon we forget that before ADA, Americans with disabilities routinely faced prejudice, discrimination, and exclusion - not to mention an obstacle course of physical barriers to movement in their everyday lives. My late brother Frank, who was deaf, was sent far from home to a "school for the deaf and dumb" (yes, people routinely used this offensive term - and worse), and later was offered just three job possibilities: baker, printer's assistant or cobbler.

Happy Fifteenth Birthday, ADA!

You've had a rough childhood. Let's hope your adolescence goes better.

Article on John Roberts and the ADA

Here. The punchline:

President Bush's nomination of John G. Roberts Jr. to the Supreme Court should concern people who care about disability rights. If he is confirmed, Roberts is likely to cast the swing vote against the ADA and disability rights.

For what it's worth, I think the jury's very much still out on how Judge Roberts will deal with ADA cases if confirmed.

Inaccessibility on the $10 New York-Boston Bus

The Boston Herald has the goods here.

Interesting Review of Harriet Johnson's Book

in the Washington Post, here. If you haven't read it, you should. Even if I'm not sure that Reston entirely "gets it," he does capture a lot of what makes the book a great read. Buy it here:

ADA Anniversary Coverage

Tomorrow's the 15th anniversary of President George H.W. Bush's signing the ADA into law. Lots of papers are running anniversary articles, often with a local or human-interest angle. See this from the Grand Rapids Press, this from the Lawrence Journal-World, this from the Evansville Courier-Press, this from the Poughkeepsie Journal, this Mary Johnson column in the Philadelphia Inquirer, and of course this AP dispatch about kids with disabilities playing T-ball at the White House (not necessarily what I'd choose as a symbol of integration -- how about kids with and without disabilities playing T-ball together? I've seen it done.).

Department of Bad Timing

See this press release from Not Dead Yet, which begins:

In an all-too-common feat of cultural insensitivity, PBS has chosen July 26th, the anniversary of the signing of the Americans with Disabilities Act (ADA), to air “POV: The Self-Made Man.” The documentary features the videotaped statements of Bob Stern, an elderly man deciding to commit suicide rather than face possible disability, medical uncertainly or complications.

“The choice of this particular air date is an affront to people with disabilities in this country,” says Diane Coleman, president of Not Dead Yet, a national disability rights group based in Forest Park, IL. “The 15th anniversary of the ADA is, for people with disabilities, the nation’s largest minority, what the Civil Rights Act of 1964 is for people of color. Not only is it being ignored by PBS, but the network is featuring and promoting a program about a person so terrified of aging and disability that he commits suicide. In terms of sensitivity to diversity issues, this puts PBS in the same league as the Fox News Channel. And, no, that is not a compliment.”

Stephen Drake, research analyst for Not Dead Yet, notes that the film is a slanted portrayal of the broader issues. “Normally, we don’t comment when a rich, privileged guy decides to take his own life. We didn’t comment when Hunter Thompson shot himself. After all, Thompson wasn’t asking for a change in the law, a permission slip, or help from anyone.”

Drake says the situation is different with “The Self-Made Man.” “It’s being promoted as a tool for adding to the public discourse in regard to assisted suicide, an issue confronting the U.S. Supreme Court and legislators in California," he said. "Whether society will treat some suicidal people differently than others is a public policy issue. The film, however, frames the issue as a dispute between religious conservatives and those who “believe in autonomy.”

Coleman and Drake say this ignores the fact that secular disability rights groups have been at the forefront of opposing legalization of assisted suicide. Twelve national disability groups filed an amicus brief supporting the Attorney General in the Gonzalez v. Oregon case currently before the Supreme Court.

Baltimore Sun Editorial on Baltimore Special Ed Case

is here.

Kansas Boy Honored for Winning Legal Fight to Play Baseball

See this article by that title, which begins:

Matthew Whaley just wanted to play baseball with his friends. But it took a federal lawsuit before the 8-year-old with cerebral palsy could join the lineup on his summer baseball team in Scott City, Kan.

Whaley and his legal victory was honored Thursday night in Washington by a national disability rights group celebrating the 15th anniversary of the Americans with Disabilities Act.

His mother, Jennifer Berends, said she is proud to share Matthew's story if it can help make a difference for other people with disabilities.

"All along, it was about Matthew just getting to do what the other kids were doing," Berends said.

Last summer, Matthew told his mother he wanted to play baseball with his older brother - who is not disabled - on a youth team for boys ages 7 to 9. He uses a walker for mobility, bracing himself with one hand and swinging the bat with the other.

But the Scott City Recreation Commission said he couldn't join the team because of concerns he might get hurt or hurt other players. They also claimed it would force them to alter the rules and make the game less competitive, even though Matthew requested no changes.

His family finally sued the commission in federal district court in Wichita. It didn't take long for U.S. District Judge J. Thomas Marten to rule the league could not discriminate against him under the ADA. Marten issued a preliminary injunction ordering the commission to let Matthew play.

Travelling to Find Inaccessibility

See this article, which is notable only for the fact that the folks complained. It begins:

In the eyes of two handicapped Florida women unable to access local shops and restaurants, the city and many of the businesses in it are in blatant disregard of the Americans with Disabilities Act.

On Wednesday, one week after arriving in Gatlinburg, Diane White and Janet Severt, of Floral City, Fla., decided they would file complaints with the city and anyone else who would listen, including television and print media.

ADA prohibits discrimination and ensures equal opportunity for people with disabilities in employment, state and local government services, public accommodations, commercial facilities, and transportation, according to the ADA Web site. The law was enacted by the federal government on July 26, 1990.

White and Severt said they came to Gatlinburg July 13 for a party celebrating the 50th wedding anniversary of Severt's parents and immediately ran into problems.

Student Note on Accommodating Disabled Renters' Economic Status

New on Westlaw: Abram B. Gregory, Note, Being Reasonable Under The Fair Housing Amendments Act: Allowing Changes In Rent-Admission Policies To Accommodate The Disabled Renter's Economic Status, 80 Ind. L.J. 905 (2005). The note takes on an interesting issue that has occasioned a split in the circuits.

More on the Tories and Inclusion

See this article. Note particularly this quote from the Shadow Education Secretary, which sums up the Tories' position:

"The idea of inclusion has hardened from a helpful tool to ensure children were not shut out of mainstream, into an unbending doctrine that means children cannot get into special schools when they need it."

Ms. Wheelchair America and Serial ADA Litigation

See this interesting article. An excerpt (but read the whole thing):

The Post-Crescent has learned the Florida law firm that sued Fox River Valley businesses filed more than 200 suits in recent years for people connected to Ms. Wheelchair America. Among the suits were two dozen filed locally since December on Hackel’s behalf.

Federal court records reviewed by The Post-Crescent show the lawsuits, by Hollywood, Fla.-based Schwartz Zweben & Associates, were filed in at least seven states and the District of Columbia. At least 13 former Ms. Wheelchair America affiliates, including state and national titleholders, state coordinators and pageant judges were among the plaintiffs.

The law firm has not been accused of doing anything illegal. And leaders of the firm and the national pageant defend their associations, including the firm’s role as one of the pageant’s chief sponsors, as a reflection of their mutual concern for the rights of people with disabilities.

“We’re not going to deny that we have clients that are affiliated with the pageant, but the fact is we don’t go there to solicit clients,” Gene Zweben, a managing partner at the law firm, said. “We are a supporter because we believe in what the pageant stands for.”

Graber on Rehnquist and Garrett

Mark Graber has this provocative post on Balkanization.

Americans with Disabilities Act: A Job Not Done (Yet)

See this article by that title in the Pittsburgh Post-Gazette. An interesting 15-year retrospective.

DOJ Settlement in Nevada Accessible Housing Construction Case

See this press release, with links to the agreement.

Canadian Lawsuit *Against* Deinstitutionalization

See this article, which begins:

The residents of the Rideau Regional Centre in Smiths Falls, a provincially run home for people with severe developmental handicaps, have filed a lawsuit to keep their home open. It is one of the last such residences still run by the province, which wants to be out of the business by 2009. There used to be 19 across the province.

For many living there, it's the only home they've ever known. Thirty or 40 years ago they were deemed unable to live in the community because their disability was considered so severe.

The lawsuit is headed up by lawyer James Gray, whose sister is a long-time resident. Gray says they are suing the McGuinty government, Minister of Community and Social Services Sandra Pupatello, and all Crown ministers and officers who were part of the decision to close the centre.

The lawsuit argues the closure is cruel and unusual treatment, under the Charter of Rights and Freedoms. It also maintains that many of the residents have no chance of survival if put in private group homes, due to the severity of their disability.

Gray says the residents are seeking an injunction to prevent the closure, scheduled to be heard in court on Aug. 26. Relocation of some residents is set to begin in September.

The lawsuit was launched on the same day that Pupatello announced $59 million to expand community-based services for people with developmental disabilities.

NFIB Suit Against ADA Rules

See this article, which begins:

The National Federation of Independent Business filed a lawsuit aimed at forcing the Department of Justice to consider less-burdensome alternatives to new building accessibility requirements.

Under proposed new Americans with Disabilities Act rules, businesses would have to provide wheelchair access throughout their employee work areas even if none of their employees uses a wheelchair. In addition, handrails would be required on both sides of ramps and stairwells, light switches would have to be lowered, and flashing lights as well as sound would be mandatory for fire alarms.

NFIB contends the Architectural and Transportation Barriers Compliance Board should have analyzed the new rules' impact on small businesses. The agency says the analysis wasn't necessary because the new requirements would increase the cost of new and altered facilities by only 0.5 percent.

County Forced to Revamp Special Ed for African Americans

See this article by that title. It begins:

Saying county schools have been too quick to label African-American students "mentally retarded" or emotionally disturbed, the state is ordering $2.1 million in federal special education funds redirected to help the kids before they're separated from the student population.

Anne Arundel also has too many minority students who aren't in mainstream classes and too many being suspended for more than 10 days, said Carol Ann Baglin, an assistant superintendent with the Maryland Department of Education.

Settlement of California Park Access Suit

See this article, which begins:

State parks officials and disability rights groups announced Tuesday an agreement aimed at improving access for disabled visitors at more than 270 parks and recreational areas across California.

The agreement, announced in Oakland, resolves two lawsuits charging that disabled people were unfairly denied access to state recreational facilities.

Inclusive Education in Britain?

See this interesting article, which begins:

The integration of disabled pupils into mainstream schools is being undermined by a small band of politicians and parents, disability rights campaigners argued today.

In a full-page advert in the Independent newspaper, the charity Disability Equality in Education (Diseed) said it was concerned that the recent debate on inclusion, prompted by comments from Baroness Warnock and the Conservative party, was giving a "distorted view of inclusive education".

Last month, Baroness Warnock, seen by many as the architect of inclusive education, urged a rethink of the teaching of children with special education needs (SEN) in mainstream schools and called for the creation of more specialist institutions.

Her landmark review of the schooling of disabled children in the 1970s resulted in a law change in 1981 that guaranteed all children the right to a mainstream education. It also introduced "statementing", where pupils are assessed to indicate their special needs. Baroness Warnock now claims statementing has not worked and the system needs to be reviewed.

The Conservatives, for their part, want to halt the closure of special institutions, arguing that parents should have the right to choose whether they want their SEN children educated in mainstream schools. Today's advert, signed by education charities, teachers, parents and disabled people, said: "These campaigners are undermining the inclusion of disabled pupils in mainstream schools. They seem to have missed out on 25 years of global debate and development of effective practice that has put inclusion of disabled pupils on a human rights stage."

Inclusive Education in Britain?

See this interesting article, which begins:

The integration of disabled pupils into mainstream schools is being undermined by a small band of politicians and parents, disability rights campaigners argued today.

In a full-page advert in the Independent newspaper, the charity Disability Equality in Education (Diseed) said it was concerned that the recent debate on inclusion, prompted by comments from Baroness Warnock and the Conservative party, was giving a "distorted view of inclusive education".

Last month, Baroness Warnock, seen by many as the architect of inclusive education, urged a rethink of the teaching of children with special education needs (SEN) in mainstream schools and called for the creation of more specialist institutions.

Her landmark review of the schooling of disabled children in the 1970s resulted in a law change in 1981 that guaranteed all children the right to a mainstream education. It also introduced "statementing", where pupils are assessed to indicate their special needs. Baroness Warnock now claims statementing has not worked and the system needs to be reviewed.

The Conservatives, for their part, want to halt the closure of special institutions, arguing that parents should have the right to choose whether they want their SEN children educated in mainstream schools. Today's advert, signed by education charities, teachers, parents and disabled people, said: "These campaigners are undermining the inclusion of disabled pupils in mainstream schools. They seem to have missed out on 25 years of global debate and development of effective practice that has put inclusion of disabled pupils on a human rights stage."

HAVA and People with Disabilities

New on Westlaw: Christina J. Weis, Note, Why the Help America Vote Act Fails to Help Disabled Americans Vote, 8 N.Y.U. J. Legis. & Pub. Pol'y 421 (2004-2005). From the introduction:

[T]he HAVA fails to sufficiently ensure that each state will take the full measures necessary to realize the goals the HAVA set out to accomplish. Although past federal legislation sought to remedy the same problems addressed in the HAVA, there has been little progress toward remedying the problem. Consequently, the broad provisions and undefined terms of the HAVA do not go far enough to require delinquent states to adopt specific, stringent accessibility standards or broad definitions of disability designed to provide access for the largest percentage of voters with disabilities. While the HAVA requires that states adopt certain non-specific standards for federal elections in order to receive federal monetary assistance, these standards are vague and do not provide guidance to the states about the extent of the necessary reforms. Given that the past federal statutes bearing on the voting rights of the disabled have failed to make a significant impact on access, the lack of minimum standards coupled with the vague definition of "disability" provided in the HAVA will ultimately fail to remedy the problem they are intended to address.

Mezey on Disabling Interpretations

Just got Susan Gluck Mezey's new book Disabling Interpretations: The Americans with Disabilities Act in Federal Court. The book argues that federal courts have read the ADA unduly narrowly and thus limited the impact of the law. It's unclear to me how much this book covers different ground than Colker's Disability Pendulum, but check them out for yourself.

Ninth Circuit Decides Interesting Definition-of-Disability Case

In Head v. Glacier Northwest, Inc., decided yesterday, the Ninth Circuit reversed a grant of summary judgment to the defendant employer on an ADA Title I plaintiff's actual disability claim. The plaintiff, who had depression or bipolar disorder, had introduced his own testimony about the severe effects that condition had on his ability to sleep, interact with others, think, and read. The district court granted summary judgment to the employer on the ground that the plaintiff had not presented any medical or comparative evidence about his disability. Reversing, the Ninth Circuit held that a plaintiff can overcome summary judgment on the "disability" question merely by presenting his own testimony about the effects of his impairment; medical or comparative evidence is not required. The court also found a genuine issue of material fact concerning whether the plaintiff's condition substantially limited major life activities. (The case also includes an extensive discussion of how the Supreme Court's decision in Desert Palace v. Costa applies in the ADA context.)

Interesting Article on IDEA Discipline Changes

is here.

Change in Dutch Disability Pensions

See this article, which begins:

The Dutch parliament gave its backing to a landmark reform of the country's massively over-subscribed workers incapacity benefit system known as the WAO.

The new Werk en Inkomen naar Arbeidsvermogen (WIA), or work and income according to labour capacity, is meant to replace the WAO on 1 January 2006. The Senate (Eerste Kamer) must still vote on the WIA.

Labour (PvdA), the green-left Groenlinks, the Socialist Party (SP) and Christian party ChristenUnie voted against the WIA in parliament on Friday morning. The government parties and the populist LPF voted in favour.

The central change under the WIA is that only people who are totally incapable of working due to a work-related injury or illness will receive a full benefit.

Disability Fund a One-Way Door to Workers

See this long and interesting article by that title in the Oregonian. It begins:

The city of Portland treats injured police and firefighters like damaged goods.

The Police and Fire Bureaus do little to find them light-duty jobs, even if they are capable of working. The bureaus wipe them from rosters and label them "medically retired" well before they are eligible for a pension. In some cases, the city sends their retirement badges to them by courier.

"I was so utterly crushed by kind of being kicked out of the family," said John Hash, a police officer who's been on disability since 1992 and recently returned from National Guard duty in Iraq. "Leaving the bureau and having to start over was more damaging than anything that happened while I worked for them."

Drake on Euthanasia in the Netherlands

Stephen Drake of Not Dead Yet has this short piece in the Hastings Center Report. Thanks to Betsy Malloy of the HealthLawProf Blog for the tip.

Interesting Seventh Circuit Case on Reasonable Accommodation in Zoning Decisions

On Wednesday, the Seventh Circuit issued its decision in Wisconsin Community Services, Inc. v. City of Milwaukee. Wisconsin Community Services (WCS) had sought a zoning variance to permit it to operate an outpatient mental-health clinic in an area Milwaukee had zoned for business. (The city has a separate zoning designation for medical clinics, but WCS did not find any suitable parcels in the areas zoned for medical clinics.) The city denied the variance, and WCS sued under Title II of the ADA. Although the district court granted summary judgment to WCS, the Seventh Circuit reversed by a 2-1 vote. Judge Easterbrook wrote the majority opinion, joined by Judge Bauer. In that opinion, the court ruled that Title II does not require accommodation of zoning rules unless those rules have a disparate impact on people with disabilities: "If a zoning or building-code rule bears more heavily on disabled than on other persons, the city must change the rules to the extent necessary to redress the adverse effect." But the court ruled that no accommodation is necessary "[i]n the absence of disparate impact." Although the Supreme Court's decision in US Airways v. Barnett seems to suggest that the requirement of reasonable accommodation requires no showing of either disparate treatment or disparate impact, the majority determined that the accommodation provision in ADA Title I, which the Court interpreted in Barnett, was materially different from the accommodation requirement that applies under ADA Title II. The majority accordingly reversed the grant of summary judgment to WCS, and remanded for further proceedings in which WCS will have an opportunity to show that the zoning rules had a disparate impact on people with disabilities or that the failure to grant a variance rested on intentional discrimination against people with disabilities.

Judge Wood dissented. She read Barnett as holding that "[a]t least for purposes of Title I of the ADA . . . the accommodation requirement imposes special responsibilities on employers that could not be derived from either the intentional discrimination theory or the disparate impact theory." And she read the accommodation requirement in the Title II regulations to be "substantively identical to the language the Court was construing in Title I."

The majority opinion seems directly to conflict with the Second Circuit's decision in Henrietta D. v. Bloomberg, 331 F.2d 261, 273-277 (2d Cir. 2003), which squarely held that disparate impact is not required to make out a case for denial of accommodation under ADA Title II. This seems like a plausible case for en banc review. But if the Seventh Circuit can't be persuaded to take the case en banc, I imagine the plaintiffs would conclude they're best off going back before the district court and trying to make out a case of disparate impact and/or disparate treatment rather than trying to take the case to the Supreme Court in this interlocutory posture.

What Members of Congress Know About the ADA

Via the great new openCRS website, I found this Congressional Research Service report that summarizes the principal case law on the ADA.