New York Lagging in Voter Access

See this article from the Rochester Democrat and Chronicle. It begins:

After the 2000 presidential-election voting flap, the federal Help America Vote Act was passed two years later, in part to provide people with disabilities better access at the polls.

But in New York, the slowest state in the nation to implement the federal requirements, better access may be turning into little access.

As part of a pending lawsuit settlement with the U.S. Justice Department, the state plans to have a limited number of new voting machines this year for disabled voters. Next year, the state plans to install more technologically advanced machines at every polling place.

The plan means that most counties, including Monroe, will likely have only one machine specifically designated to assist disabled voters. Monroe County plans to have the machine available somewhere downtown.

For some of the estimated 84,000 people in the county who live with a disability, the plan is troubling. While people could still vote at their regular polling places with the old lever machines or by absentee ballot, some said they were looking forward to voting on fully accessible machines.

"We were under the impression we would have a machine in every polling place," said Henrietta resident M.J. Schmitt, who is 74 and blind. "It seems very far from what we wanted it to be."

The lack of access this year is angering activists and local people with disabilities, who argue that New York's approach flouts the spirit of the law. More importantly, they question how people with limited mobility will be able to travel from around the county to only one voting place.

It is a concern that's being expressed statewide. New York City, for example, plans to only have one machine in each of its five boroughs.

Wow. One accessible machine for all of Manhattan? That's going to be a big help.

Australian Access Suit Against Virgin Blue

See this article from the Sydney Morning Herald. It begins:

VIRGIN Blue, whose founder, Richard Branson, overcame a disability, faces a human rights complaint over the airline's new requirements governing disabled passengers.

The Australian Federation of Disability Organisations said it lodged a complaint with the Human Rights and Equal Opportunity Commission yesterday on grounds the airline was breaching public transport access provisions.

Maurice Corcoran, the group's president, said Virgin Blue was requiring disabled passengers who could not get to the toilet on their own or look after themselves in an emergency, to provide a carer.

Mr Corcoran said the policy, to take effect tomorrow, was disappointing given that Mr Branson had "overcome a significant disability - dyslexia".

The Human Rights Commissioner, Graeme Innes, said standards for public transport required airlines to ensure "equivalent access" to disabled passengers through direct assistance where reasonable.

A Virgin Blue spokeswoman, Amanda Bulger, yesterday blamed the outcry from disabled groups on misinformation and confusion.

Developments in Clarksville (TN) Access Settlement

See this report from Inclusion Daily. An excerpt:

Three and a half years ago, three advocates with the nonprofit group "Wheel Me On" filed a class action lawsuit against the town, claiming that its failure to provide accessible facilities and services violated their rights under Title II of the 1990 Americans with Disabilities Act.

The suit was settled in January 2004 in favor of the plaintiffs, Julia Hollenbeck, Steve Traylor and Margaret Auld. However, a final agreement, known as a "consent decree", still has not been hammered out between the city and the advocacy organization.

Earlier this week, the advocates met with city officials to review the latest proposal.

While most of the elements of the proposal were agreeable to both sides, two issues remained unresolved, Wheel Me On's CEO Julia Hollenbeck told Inclusion Daily Express by telephone.

The first has to do with sidewalks, curb ramps and crosswalks on two of the busiest roads through Clarksville: U.S. Highway 79, known within the city as Wilma Rudolph Boulevard, and U.S. Highway 41.

Hollenbeck said that city officials had refused to include these routes because they are maintained by the state of Tennessee. The plaintiffs said that was not good enough, and demanded that the city put language in the agreement stating that they either will make those routes safe and accessible, or have the state do it.

The second provision that had yet to be negotiated had to do with there being continuous sidewalk coverage across the city's streets.

Disability Housing Bias Complaints Rising (in Ohio)

See this article from the Cleveland Plain Dealer. It begins:

From 2000 through 2004, the percentage of fair housing complaints in Northeast Ohio charging discrimination based on disability equaled those based on race.

According to a survey of complaints in Northeast Ohio conducted by the Housing Research & Advocacy Center in Cleveland, the number of disability-based complaints increased by more than 50 percent during that time and those based on family status doubled, compared to the previous five-year period. The level of race discrimination complaints remained about the same.

The cases - an average of nearly 112 complaints a year in a six-county region - show that housing discrimination is still widespread here, 38 years after the passage of the federal Fair Housing Act, said Jeffrey Dillman, the center's executive director.

Thanks to Ragged Edge for the tip.

Firings Follow Silence on Abuse

See this article by that title from the Kansas City Star. It begins:

Ten employees of a group home for developmentally disabled adults have been fired for not reporting an abusive supervisor.

The supervisor was accused of forcing a blind resident to stand for long periods in urine-soaked clothing and of taunting and verbally abusing the home’s eight severely disabled residents.

“We feel we had no choice in the matter,” said Michael Strouse, chief executive officer of Community Living Opportunities, a nonprofit corporation that has several homes in Douglas and Johnson counties. “This cannot be allowed to happen.”

Red Bluff Councilman Sues City Over Disability Issues

See this story by that title out of California. It begins:

A legally blind member of the Red Bluff City Council is suing the city.

Councilman Larry Stevens claims that the city failed to meet his disability needs and that the former city manager conspired to remove him from the mayor's post after he threatened a lawsuit.

The suit contends the city regularly failed to comply with Stevens' standing request to have city documents, maps and charts printed in large 18- or 20-point type.

It also says that the city didn't comply with Stevens' efforts to make Red Bluff City Hall and the city's sidewalks and curbs more accessible for the disabled.

And the suit contends that city staff, particularly former City Manager Susan Price, retaliated against Stevens by helping to schedule a special council meeting to remove him as mayor last year.

Shepherd on Schiavo

New on SSRN: Lois L. Shepherd, Terri Schiavo and the Disability Rights Community (forthcoming in the U. Chi. Legal F.). The abstract:

According to many disability rights organizations, the issues surrounding the removal of Terri Schiavo’s feeding tube were disability rights issues. Many such organizations joined the fight against the removal of Schiavo’s feeding tube and, following her death, have urged changes in state legislation that would restrict the removal of nutrition and hydration from individuals who have never clearly expressed a desire to refuse such treatment. Concerned to limit the effect of inappropriate “quality of life” evaluations in decisions to remove life support, these groups have characterized the permanent vegetative state as a condition of disability indistinguishable in many respects for other disabilities. This article examines the implications of these positions for people who are profoundly developmentally disabled. It argues that the view that the permanent vegetative state is merely at one end of a continuum of disabilities appears to serve neither the profoundly disabled person who has entered a permanent vegetative state, nor profoundly disabled people in general.

Pitt Launches Disability Law Certificate Program

See this press release:

PITTSBURGH—The law exerts a powerful and direct impact on the lives of persons with disabilities. It is estimated that close to 20 percent of the U.S. population, nearly 54 million people, have a disability. The University of Pittsburgh School of Law has developed a Certificate in Disability Legal Studies Program to address the needs of these individuals and those who work with them.

“Disability law pervades so many areas of life that it is essential to provide legal training to all of those professionals who are affected by it so that they may incorporate it into their professional practice,” said Alan Meisel, professor of law and psychiatry, Dickie, McCamey and Chilcote Professor of Bioethics, and director of the new certificate program.

The 15-credit program is geared for a wide variety of professionals, including administrators, educators, health practitioners, advocates, social workers, architects, city planners, attorneys, business leaders, human resource directors, and students in those fields.

Students are required to take four courses: Introduction to Law and Legal Reasoning, Health Law and Policy, The Law of Disability Discrimination, and an introductory law course tailored to the needs of the individual student. The remaining credits can be fulfilled through such courses as Bioethics and Law, Elderly and the Law, Educational Policy and the Law, Employment Discrimination, Employment Law: A Problems Approach, Mental Health Law, Nonprofit Tax Exemption Organizations, Worker’s Compensation, and other electives.

For more information on the Certificate in Disability Legal Studies Program, contact Meisel at 412-648-1384 or e-mail questions to dls@law.pitt.edu.

Thanks to Paul at Workplaceprof for the tip.

Arlington Legal Bill Tops $225K

See this article by that title in the Poughkeepsie Journal. The article begins:

The Arlington school district has incurred at least $225,000 in legal fees in a special education case that landed in the U.S. Supreme Court last month.

The vast majority of those fees in the eight-year legal battle were incurred this year, when lawyers for Arlington and the parents of Joseph Murphy of LaGrangeville went before the Supreme Court on April 19. The Court weighed whether parents who prevail in special education cases can be reimbursed for fees paid to experts under the Individuals with Disabilities Education Act. A decision is expected later this year.

Although the final costs have not been tabulated, Arlington's law firm expects to bill the district about $138,000 this year. That figure is a tiny fraction -- about one tenth of one percent -- of the more than $133 million budget for 2005-06 approved by voters last year.

The costs come at time when voters all around the mid-Hudson Valley are sending budgets back to their districts. Last week, nine out of 12 school budgets in Dutchess County -- including Arlington's more than $145 million spending plan -- were rejected by voters.

Wealthy Districts' Special Ed Students More Likely to Graduate

See this story from WNYC:

Special education students in New York's wealthy school districts are almost four times more likely to graduate high school with dipomas than their counterparts in New York City.

REPORTER: A study prepared for the Board of Regents found only 23 percent of disabled students in New York City graduated high school in 5 years, compared to 80 percent in some better-off districts. The report was compiled by the Office of Vocational and Education Services for Individuals with Disabilities.

Deputy Commissioner Rebecca Cort says New York City and other districts with high concentrations of needy students are at a disadvantage.

CORT: Class sizes, getting appropriately certified teachers in all the subject areas, all of these pieces come together and compound the problems for students with disabilities.

REPORTER: Students with disabilities include those with learning, emotional and language problems in addition to autism and mental retardation.

School Board Member: Limit School to "Educable" Students

See this article, from the Baraboo (Wisc.) News Republic. It begins:

New Baraboo School Board member Kevin Bartol stirred up some controversy at his second meeting Monday night when he suggested district policy be amended so that only teachable students be enrolled in Baraboo's public schools.

"There are some people in this country that cannot be educated," Bartol said to the board. "They may have their eyes open, but there's no one awake upstairs."

His comments Monday came as part of the board's review of district policies, including one for "Programs for Students with Disabilities." The first sentence of that policy reads that the board "shall provide a free and appropriate public education in the least restrictive environment for students with disabilities who reside within the district."

Bartol proposed the board add a modifier before the word student, such as "educable," so that if a child who "can't be taught" wants to enter or stay in a Baraboo public school the district is not required to serve him or her.

"Every child can be taught," said Director of Special Ed Gwynne Peterson said, who added the district is under federal obligation —as well as moral and ethical — to teach every student.

"I don't think that's true," Bartol said. "What if you teach them for two or three years and they haven't learned anything?"

High School Principal Machell Schwarz responded, "Then we work with them and try everything we possibly can." Bartol requested the board look into the legalities of modifying the disability policy

Wow.

New EEOC Document on Accommodating Attorneys with Disabilities

The EEOC has released this document on accommodating attorneys with disabilities. It's a really great resource. From the introduction:

This fact sheet addresses the application of the reasonable accommodation obligation to attorneys and their employers.⁴ Attorneys with disabilities, both as applicants and employees,⁵ may need a range of accommodations in order to apply for and perform many types of legal jobs. Most of the accommodations that attorneys with disabilities may need are similar to those needed by other professionals with disabilities who work in an office setting. Thus, much of the discussion in this document will apply to a wide range of administrative and professional jobs.

This fact sheet reviews many of the most common types of reasonable accommodations that lawyers with disabilities may need. ⁶ Some of these accommodations, such as modified schedules and telecommuting, are often used by legal employers generally to attract and retain attorneys. Many legal employers have recognized the importance of flexibility to remain competitive in hiring the best attorneys. For these employers, providing reasonable accommodation will be an extension of this approach. In addition, providing reasonable accommodation for qualified attorneys with disabilities serves the larger goal of enabling legal employers to diversify their workforce.

Paetzold on the ADA and Bipolar Disorder

New on Westlaw: Ramona Paetzold, How Courts, Employers, and the ADA Disable Persons with Bipolar Disorder, 9 Employee Rts. & Emp. Pol'y J. 293 (2005). The abstract (which, unlike the article, is free on the web):

Although the Americans with Disabilities Act (ADA) is meant to provide increased employment opportunities for persons having both physical and mental disabilities, it appears that persons with mental illness, and in particular bipolar disorder (BPD), may not be benefiting from the provisions of the Act. This article addresses the difficulties that persons with BPD face in maintaining employment as a result of judicial interpretation of the Act. To accomplish this goal, the author first details the nature of BPD, explaining that although it has similarities in symptoms with other mental illnesses, it is unique in some aspects as well. After presenting two competing models of disability — the medical model and the social model — the author then addresses the natural of the ADA, explaining why it relies more on the medical model of disability in a way that disadvantages persons with BPD. Cases involving employees with BPD are analyzed under a variety of provisions of the ADA to demonstrate how employer preferences for traditional workplace arrangements are reinforced by the legal system. The author then makes recommendations for future judicial interpretation of provisions of the ADA so that persons with BPD (and other forms of mental illness) can achieve parity in treatment with persons having physical disabilities.

2005 AALS Panel on the ADA's Definition of Disability

New on Westlaw: The Definition Of Disability In The Americans With Disabilities Act: Its Successes And Shortcomings: Proceedings Of The 2005 Annual Meeting, Association Of American Law Schools Sections On Employment Discrimination Law; Labor Relations And Employment Law; And Law, Medicine And Health Care, 9 Employee Rts. & Emp. Pol'y J. 473 (2005). This is a transcript of a very interesting panel, which was moderated by Sharona Hoffman; Chai Feldblum, Paul Miller, and Michael Stein were the other participants.

Student Note on Section 504 as a Complement to IDEA

New on Westlaw: Christopher J. Walker, Note, Adequate Access or Equal Treatment: Looking Beyond the IDEA to Section 504 in a Post-Schaffer Public School, 58 Stan. L. Rev. 1563 (2006). 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.

Two By Stein, One With Waterstone

Disability law stars Michael Stein and Michael Waterstone have posted on SSRN their piece, Disability, Disparate Impact, and Class Actions (forthcoming in the Duke Law Journal). The abstract:

Following Title VII’s enactment, group-based employment discrimination actions flourished due to disparate impact theory and the class action device. Courts recognized that subordination which defined a group’s social identity was also sufficient to legally bind members together, even when relief had to be issued individually. Interwoven through these cases was a notion of panethnicity that united inherently unrelated groups into a common identity, for example, Asian Americans. Stringent judicial interpretation subsequently eroded both legal frameworks and it has become increasingly difficult to assert collective employment actions, even against discriminatory practices affecting an entire group. This deconstruction has immensely disadvantaged persons with disabilities. Under the Americans with Disabilities Act (“ADA”), individual employee claims to accommodate specific impairments, such as whether to install ramps or replace computer screens, have all but eclipsed a coherent theory of disability-based disparate impact law, and the class action device has been virtually non-existent in disability discrimination employment cases. The absence of collective action has been especially harmful because the realm of the workplace is precisely where group-based remedies are needed most. Specifically, a crucial but overlooked issue in disability integration is the harder-to-reach embedded norms that require job and policy modifications. The Article argues that pandisability theory serves as an analogue to earlier notions of panethnicity and provides an equally compelling heuristic for determining class identity. It shows that pandisability undergirds ADA public service and public accommodation class actions where individualized remedy assessments have been accepted as part of group-based challenges to social exclusion. The Article also demonstrates that this broader vision of collective action is consistent with the history underlying the class action device. Taking advantage of the relatively blank slate of writing on group-based disability discrimination, it offers an intrepid vision of the ADA’s potential for transforming workplace environments. In advocating for a return to an earlier paradigm of collective action in the disability context, the Article also provides some thoughts for challenging race and sex-based discrimination.

Stein also has posted Disability Human Rights (forthcoming in the California Law Review). The abstract:

Responding to the absence of an international treaty expressly protecting people with disabilities, the United Nations is sponsoring a disability-based human rights convention. The Article examines the implications of adding disability to the existing canon of human rights by adopting a disability human rights paradigm. It argues that, because disability rights necessarily invoke civil and political rights, as well as economic, social, and cultural rights, a disability framework presents a strong exemplar for viewing established human rights protections as being similarly indivisible. Hence, groups whose rights historically have been divided, for example, women, could be strengthened. Moreover, utilizing a disability-based perspective could also extend human rights to currently unprotected individuals, including sexual minorities and the poor. Building on (as well as critiquing) the feminist political philosophy of Martha Nussbaum, the Article maintains that the “capability approach” provides a cogent space for understanding the scope of disability-related, as well as general, human rights. It demonstrates that, because a capabilities framework values each person as his or her own end, it can be combined with a disability framework to offer a normative theory of human rights that enables individuals to flourish more completely. The Article concludes with some thoughts on the broader ramifications of viewing disability as a universal experience. In arguing that disability-based rights concepts should be extended to other groups (rather than the reverse), the Article stakes out a unique perspective.

Disabled Couple Will Sue Neighborhood Association

See this story from Boise by that title. It begins:

A van, and where it's parked, might cost the homeowners association in Bristol Heights tens of thousands of dollars.

"It is my understanding that they are covered by the Fair Housing Act," Cathy Sherman, a disabled advocate at Living Independent Network Corporation in Boise, told KBCI CBS 2 News.

On Sunday we profiled Jim and Rose Barnett and the disabled couple's struggles with neighbors over this van. The Barnetts say they need this type of van as transportation, some neighbors have said it ruins the aesthetic beauty of the house.

"The Barmetts have called into Fair Housing and that they're going to help them with their case, which will then go to HUD, Housing and Urban Development," Sherman said. "And that they'll have a case against their homeowner's association and their rental company."

The Barnetts are moving at the end of the month, and Sherman says if it's proven they were forced to leave their community it could increase their damages.

Hearings on Missouri MR/DD Facilities

See this article. An excerpt:

More than 60 youths and adults jammed the hearing at the Springfield Regional Center to report safety and health threats and recommend changes at facilities for mentally retarded and developmentally disabled people. Several members of the deaf community were also scheduled to recommend improvements in their services.

Three members of the seven-person commission attended the hearing, one of six across the state. After the last hearing next week in Kansas City, the commission plans to compile recommendations for Gov. Matt Blunt, said Bob Bax, public affairs director for the Missouri Department of Mental Health.

The commission wants public input in light of the deaths of two male residents of the Northwest Campus of the St. Louis Developmental Disabilities Treatment Centers. One man died in 2005 from complications of swallowing a pen; one died in March from scalding wounds.

"The commission is committed to insuring clients are safe and have the most appropriate services possible, whether in the habilitation centers or in the community," Bax said.

Earlier Thursday, client families criticized Blunt for plans to close a St. Louis-area habilitation center, saying it would force patients into inappropriate and potentially dangerous private group homes.

In calling for better oversight of all facilities caring for clients, Natalie Woods noted that the state auditor's April scrutiny of Springfield-area private group homes showed numerous problems that had not been corrected despite being cited in previous audits. Woods is president of the Nevada Habilitation Center Family Support Association. Her sister lives at the Nevada facility.

Woods said she's worried Blunt will further dismantle the state-run system, aiming at the five smaller habilitation centers. There are no plans to close the Nevada center, Bax said, and any transition from one facility to another must be done in concert with the family.

In written testimony, Woods said, "There are good private care community options in our state. However, the reality is that not everyone with special needs can thrive in these settings." Families should have a choice, she said. "... Closing, downsizing and cutting funding for these facilities will diminish the only lifeline our loved ones have."

Coverage of Maine Decision

Ragged Edge has this story on the Maine Supreme Judicial Court decision I blogged about here. A couple of excerpts:

The victory is a far-reaching one, say advocates and legal experts, because the federal disability antidiscrimination law, the Americans with Disabilities Act, has kept victims of discrimination from being able to have their day in federal court simply because language in the law and court rulings have insisted that in order to be able to file a suit, a vicitim of discrimination must first be able to show that they have "substantial limitiation in a major life activity" and thus are "truly disabled."

The Maine court's decision was possible because that state's anti-discrimination law, the Maine Human Rights Act, is stronger than the ADA, and is worded in a different manner.

* * *

According to the Associated Press, businesses are angry at the ruling and will try to force the legislature to change the Maine Human Rights Law to conform to the weaker federal ADA, which makes victims of disability discrimination a climb a higher hurdle in order to bring a lawsuit.

Student Note on Disability-Based Peremptory Challenges

New on Westlaw: Natasha Azava, Note, Disability-Based Peremptory Challenge: Need for Elimination, 4 Cardozo Pub. L. Pol'y & Ethics J. 121 (2006). From the introduction:

In 1986, in Batson v. Kentucky, the Supreme Court held that peremptory challenges based on race violate the Equal Protection Clause and as such are unconstitutional. In 1994, in J.E.B. v. Alabama ex rel. T.B., the Supreme Court stated the same about peremptory challenges based on gender. Peremptory challenges based on disability, however, are still constitutional. Under the current standard, when a court finds a disabled person qualified and therefore able to survive a challenge for cause, parties can merely exercise a peremptory challenge to remove the juror, as long as they have peremptory strikes left. Many cases illustrate this point. For example, in People v. Guzman, when the court rejected counsel's challenge for cause, the attorney exercised a peremptory challenge and nonetheless excluded a deaf juror.

Applying such challenges undermines all of the important progress made in recent years towards opening the courts to people with disabilities. Peremptory challenges based solely on a person's disability represent ignorance on the part of those who exercise them. Instead of evaluating one's disability individually to determine whether that disability interferes with one's duty as a juror, parties generalize about people with disabilities and make irrational assumptions that are the "'vestigial fruits' of a history of prejudice, segregation, and exclusion." As one deaf attorney noted, "[u]nfortunately, lawyers who know little or nothing about deafness are exercising their peremptory challenges to remove deaf people from the jury."

Peremptory challenges therefore permit the reinforcement of many unfair prejudices and stereotypes about individuals with disabilities that many have struggled to confront in recent years. "In effect, peremptory challenges remain the final and ultimate bastion of prejudice, segregation, and exclusion preventing jury service by 'qualified' people with physical and mental impairments." And as one judge admits, "if the mentally ill and the mentally retarded are not 'suspect classes' . . . where does that leave the disabled prospective juror who is peremptorily challenged because of his or her disability? I submit, very low in the pecking order of classifications under equal protection of the law." In these circumstances, it seems that unless there is some change in the peremptory challenge as it is applied to people with disabilities, all of the progress in statutory law will be for naught.

This article explores improvements in state jury laws that have resulted in the increased access to courts of jurors with disabilities and argues that even if this progress in carefully evaluating the individual qualifications of prospective disabled jurors continues, the peremptory challenge will remain an obstacle to jury service. Therefore, to ensure equal opportunities for jurors with disabilities, the peremptory challenge based on disability should be prohibited, just like the peremptory challenge based on race and gender.

Much Ado Over Emotional Support Dogs

Down at Concurring Opinions, Jason Mazzone and Miriam Cherry, along with a few commenters, are discussing this New York Times article about the possible abuse of the protections the ADA gives to service animals. Seems to me like there may be some abuse, but the concern seems way out of proportion to how much is really going on. (I have a similar view about this story: Lying about a disability in a lawsuit ought to be punished criminally, but there are scam artists everywhere, and our discussion of the ADA shouldn't focus unduly on them.)

Czech Ban(?) on Caged Beds

See this article, which begins:

Controversial "caged beds" will be banned in some mental institutions in the Czech Republic starting next year, a government official said, but critics complain the measure is past due and woefully incomplete.

.

Use of the beds -- in which patients are confined behind locked, metal bars about 1.5 meters high -- has caused an outcry from international organisations and human rights groups.

Interesting Article on District of Columbia MR/DD Administration

is in today's Washington Post, here.

Mass. SJC: Employer Need Not Accommodate Disability-Created Workplace Misconduct

In a decision late last week in Mammone v. President and Fellows of Harvard College, the Massachusetts Supreme Judicial Court ruled that the state antidiscrimination law does not require an employer to provide reasonable accommodation to an employee whose disability causes "egregious workplace misconduct." The majority stated: "An employee who has committed egregious workplace misconduct (conduct so inimical to an employer's interest that any employee would be fired for the same acts) has precluded himself from 'performing the essential functions of the position,' with or without a reasonable accommodation." Based on that legal ruling, the court affirmed summary judgment for the employer in a case brought by a worker dismissed for a manic episode caused by bipolar disorder.

Justice Greaney, in a lone dissent, agreed with the majority's legal rule but believed the evidence to raise a jury question regarding whether the plaintiff's workplace misconduct met the standard for "egregious." He concluded:

Mental illness makes life more difficult in almost every way imaginable. As a practical reality, if employees who suffer from bipolar disorder are to hold jobs at all, some measure of special treatment from employers may, from time to time, be necessary. The court's affirmation of Harvard's right to summarily terminate the plaintiff, on the basis of one manic episode and with no attempt to accommodate his illness, is regrettable. This conclusion undermines a fundamental purpose of G.L. c. 151B, to preserve the employment status of the handicapped, including the mentally ill. See Dahill v. Police Dep't of Boston, 434 Mass. 233, 240-241 (2001). We have held that, for purposes of the analogous Federal statute, § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, an individualized inquiry into whether a plaintiff is a qualified handicapped person is "essential if [the statute] is to achieve its goal of protecting handicapped individuals from deprivations based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns of [employers] as avoiding exposing others to significant health and safety risks." Cox v. New England Tel. & Tel. Co., 414 Mass. 375, 383-384 (1993), quoting School Bd. of Nassau County v. Arline, 480 U.S. 273, 287 (1987). Given its remedial purpose, G.L. c. 151B likewise requires a reviewing court carefully to "measure whether the employer's decision 'reflect [s] a well-informed judgment grounded in a careful and open-minded weighing of the risks and alternatives.' " Cargill v. Harvard Univ., 60 Mass.App.Ct. 585, 603 (2004), quoting Hall v. United States Postal Serv., 857 F.2d 1073, 1079 (6th Cir.1988). No such weighing was conducted by Harvard in this case. The court's decision will make life even more difficult for those attempting to hold down a job while suffering with a mental illness, thereby undermining the compassion our society has expressed, through the Legislature's enactment of G.L. c. 151B, for someone in the plaintiff's circumstances.

For press coverage of the case, see this article.

Slate on Flagging Testing Accommodations

Slate Magazine has this "Medical Examiner" piece on the flagging of the test scores of people who received accommodations. An excerpt:

It seems unlikely that learning-disabled children in the District of Columbia are smarter or more adept at test-taking than their cohorts. Either some of these kids don't need the extra testing time, or a lot of other children who are not getting it should be. Abrams' explanation is that parents of children at the city's private schools are manipulating the testing system to try to get their averagely bright children into Ivy League institutions. I asked Brian O'Reilly, the College Board's spokesman, whether he believed that the "accommodated" D.C. students were more dyslexic or hyperactive than the children whose scores they bettered on average by more than 150 points. "Are you saying that dyslexics can't be bright children?" he asked me.

Since the Breimhorst settlement, ETS says it has tightened its review of applications for untimed tests, trying to undercut the extremely fungible diagnostic criteria that lead many parents to "therapist shop" until they find a professional who will diagnose their child as hoped. But the D.C. data suggest that ETS has a way to go. Only about 60 percent of D.C. graduates take the SAT. Few get extra time on tests in the low-income Southeast section of the city, where in four high schools, not a single student passed an AP exam last year. It's a troubling example of the disequilibrium of opportunity.

Unlike ETS, the Association of American Medical Colleges, which oversees the MCAT, is taking a stand against misuse of disability diagnoses. The academy isn't in the business of assuring social equity. But it does want medical students who can become good doctors. Despite threats of lawsuits, the academy has refused to stop flagging results from untimed MCATs. Research led by the director of the MCAT, Ellen Julian, has shown both that MCAT test results are good predictors of medical-college performance, and that time extensions, on average, improve scores. Medical practice, of course, does not generally allow the luxury of time. "We think people with the ability to work speedily and efficiently will do better in medical school and as doctors," Julian says.

The Disability Rights Association, which sponsored Breimhorst's lawsuit, has not lined up to sue over the flagging of the MCAT. It has, though, sued the MCAT over its refusal to expand the category of students in California who are declared "disabled" and thus permitted extra testing time. The Americans With Disabilities Act states that students who are "substantially limited" in a life activity qualify for accommodations. But California law requires accommodations for anyone "limited" in a major activity, which some legal experts have defined as inadequate in relation to one's peers. It's a Lake Wobegon*-in-reverse standard of disability. And it could give virtually anyone with an average mind and a wealthy family a leg up on the admissions test.

The author all but says that the solution is to reinstitute flagging on the SAT. But I think the basic problem lies elsewhere: The overuse of timed tests. The author suggests that it makes sense for the MCAT to be timed, because medical practice "does not generally allow the luxury of time." Maybe that's true (though I think it's a lot more complicated than that -- ER practice may not always allow the luxury of time, but lots of other subfields will). But even if it makes sense to select medical students with timed tests (and those tests don't give too much weight to speed), why do we need to select college students and graduate students (and lawyers -- most of whom will not be trial lawyers) with them? I've spent most of my adult life in universities, and one thing I can confidently report is that college and graduate school (and even law school) emphatically allow the luxury of time. Why should my speed at answering questions matter at all, pedaogically speaking?

Of course, the real reason why we use timed tests so much is not pedagogical; it's administrative. It's much easier to administer and grade timed exams than it is untimed ones. (It's bound to be harder to write good untimed exams, too, though it's certainly possible to ask questions that spread the test-takers even under untimed conditions.) But that reason isn't good enough. Get rid of the timed exams, and the inequities the Slate author discusses will go away. There will no longer be any benefit for rich people without disabilities to shop for a disability diagnosis, and there will no longer be any detriment for poor people with disabilities who remain undiagnosed.

People with learning disabilities are really the canary in the coal mine here: They may be especially affected by the way timed exams overemphasize speed over substantive knowledge and aptitude, but they highlight a problem of far more general application. The solution shouldn't be to make the time limits stricter. It should be to remove the time limits altogether (or make only a portion of the test timed), and to craft exams that test, in appropriate proportions, the skills that are really important to scholarly and professional success.

Australian High Court Rejects Wrongful Life Claims

See this article, which begins:

THE High Court has closed the door on children suing for deformities that could have been detected in the womb, saying to compensate them would devalue the life of a disabled person.

By a 6-1 majority, the court yesterday said the parents of Alexia Harriton and Keeden Waller - and not their doctors during pregnancy - were responsible for their condition.

Alexia, now 25, is blind, deaf, spastic and mentally retarded. Her mother, Olga, contracted rubella during her pregnancy and says she would have had an abortion if properly advised.

Keeden, five, suffers permanent brain damage, cerebral palsy and uncontrolled seizures.

His father, Lawrence, had the blood disorder AT3 but doctors failed to screen for it. He and his wife, Debbie, say they would have conceived with donor sperm or terminated the pregnancy had they known.

The High Court has already held doctors liable for a mother becoming pregnant against her wishes and for negligence during the delivery of a child.

But the "wrongful life" claims involved comparing a life with no life and asking whether someone born with a disability would be better off not being born. In the age of genetic testing, it was a step the court refused to take.

Justice Susan Crennan, who wrote the lead judgement, said comparing a life with non-existence to prove damage was impossible. She said it would be "odious and repugnant to devalue the life of a disabled person by suggesting that such a person would have been better off not to have been born into a life with disabilities".

You can find the Court's opinions here and here.

Disability Coalition Group Files Suit Over Arts Access

See this article, which begins:

Six members of a coalition for the disabled are suing Denver, saying its theater complex doesn't comply with the Americans with Disabilities Act.

"We've been working with the city on these issues for years, but they haven't yielded to making any concrete changes," said Kevin Williams, legal program director for the the Colorado Cross Disability Coalition.

"We're at the point of exasperation. These guys recognize there is a problem but won't recognize the solution."

Michelle Lucero, deputy city attorney, said she has not seen the complaint and would wait to respond.

Jack Finlaw, city director of arenas and facilities, said the city has been negotiating with the group for months.

"We, the designers and the contractors had sat down with the CCDC to find an independent authority to work with (them)," he said. "If we find something wrong, we'll fix them. They walked away from that extended hand, and that's disappointing to me."

But Williams said that the coalition and the city were only talking about hiring the outside expert to address the Ellie Caulkins Opera House problems.

"We have all these other problems, and we've written how many letters over how many years and nothing's changed," he said.

The 35-page lawsuit, filed in U.S. District Court Monday, accuses the city of Denver, the Center for Performing Arts, Opera Colorado, Colorado Ballet Company and Colorado Symphony Association of not complying with the ADA.

The complaint, which is filed on behalf of six members of the coalition, claims that DCPA venues - the Temple Hoyne Buell Theater, Boettcher Concert Hall, the Stage and the Ellie Caulkins Opera House - do not provide access to the disabled.

They complaints include:

• Wheelchair seating is not available in established locations or seats are blocked by camera, sound and lighting equipment.

• Sign language interpreters are not available for performances.

• Disabled van access is unavailable at every level of the parking garage.

• Disabled access is not available at will-call windows.

$1.3M Verdict for Insurance Agent with Bipolar Disorder

See this article, which begins:

A federal jury has awarded $1.3 million to a veteran insurance agent with bipolar disorder who alleged he was fired as a result of his disability.

The 11-member jury awarded Kevin W. Tobin, 60, of Marshfield, $500,000 in emotional distress damages, $439,315 in lost wages, and $416,664 in lost pension and retirement benefits caused by his termination by Liberty Mutual Insurance Co. in January 2001.

MDRI Releases Report on Treatment of Children with Disabilities in Romania

See this press release. Also see this article in the Washington Post, which is based on the report.

Secunda Blogs on Eleventh Circuit Insurance Discrimination Case

Over at the WorkplaceProf Blog, Paul Secunda notes a recent case from the Eleventh Circuit, which rejected an ADA challenge to a health plan's limitation of coverage for "chest physiotherapy" to 60 visits. The court ruled that because both disabled and nondisabled plan participants had access to the same 60 visits, no disability discrimination had occurred. The court's result is a common one, which I discussed in Part II of this article.

Milani Writing Competition Deadline, June 15

Ruth Colker writes to remind me that the deadline for submissions to the Adam Milani Student Writing Competition is June 15, 2006. Full details are here.

Disability Discrimination Summer School in Galway

See this link. From the page:

Date: Tuesday 6th June – Friday 16th June 2006

This two-week Summer School is the first of its type in Europe to focus on anti-discrimination legal issues on the ground of disability. It will focus on the potential of the EU Framework Directive on Employment Discrimination in the context of disability. The Framework Directive is the single most important legal instrument at the European level combating discrimination on the ground of disability. Its success or failure will be crucial to the cause of advancing the rights of persons with disabilities in Europe.

This Summer School - which is part funded by the European Commission and the National University of Ireland, Galway, conducted in partnership with Maastricht University and hosted by the National University of Ireland, Galway - will raise general legal awareness about the practical potential of the Directive in the disability context and should appeal to a wide range of persons and bodies including practising lawyers, judges, law students and disability NGOs as well as those more generally interested in public interest litigation.

More particularly, the Summer School is designed to impart skills as well as knowledge to enable participants to construct effective test case strategies under the Directive on behalf of persons with disabilities. Since the Directive is new to Europe, the programme will explore the relevant discrimination caselaw under international and comparative disability discrimination law (especially USA & Canada) in order to gain insights into which strategies have worked elsewhere and the lessons to be learned in a European context. The relevant caselaw of the United Nations human rights treaty bodies as well as the caselaw of the European Court of Human Rights will also be looked at.

It's definitely got a top-flight faculty from around the world and looks very interesting!

Oregon Adopts Sutton Mitigating Measures Rule Under State Law

In an opinion issued last Thursday in Washburn v. Columbia Forest Products, Inc., the Supreme Court of Oregon held that under Oregon's disability discrimination law the question whether the plaintiff is a "disabled person" must take account of any measures s/he uses to mitigate the effects of an impairment. The court thus adopted the same rule adopted by the U.S. Supreme Court in Sutton v. United Air Lines.

Interesting NPR Story on Truckers with Diabetes

Michael Waterstone passes along this interesting story. An excerpt:

Now, though, a change in government policy should make it easier for Mather to get his license back. Under pressure from diabetes advocates, who say the ban on insulin amounts to discrimination that isn't supported by scientific evidence, Congress recently told federal regulators to change the rules. They'll now give diabetic truckers on insulin the opportunity to show that they can drive safely, and win a waiver from the ban. So far, Mather and thousands of other truckers have contacted the agency to ask for applications.

That's a big increase over the numbers that would have been eligible under an old waiver program, which was so restrictive that only a handful of diabetics could have applied. Before the recent rule change, diabetic drivers would have to show three years of safe driving within one state while using insulin before applying for a federal waiver. But because there's very little intrastate trucking, and few states had any kind of waiver program, diabetes advocates say this was a catch-22 that made the old waiver program impossible for most people. But now, the agency has done away with the requirement for three years of in-state driving, and diabetics can apply for the federal waiver the same day they go on insulin. If Mather's application is approved, he could be driving again within a year.

Health a Challenge for Any Trucker

Highway-safety advocates say this rule change is a big mistake.

"We think that insulin-dependent diabetic drivers should not be allowed to drive large trucks. Allowing them to drive represents a safety hazard," says Anne McCartt, a researcher at the Insurance Institute for Highway Safety. She's uneasy about opening up the waiver system, because it depends on truckers being truthful about how well they're controlling their blood sugar. And she says a trucker with low blood sugar, or hypoglycemia, is just too much of a risk to other drivers on the road.

"If there is a severe episode of hypoglycemia, that person may be incapacitated and unable to drive," McCartt says. "And this is a large vehicle maybe weighing 70,000 pounds, taking much longer to stop than other passenger vehicles. It's a risk that we don't think is worth taking."

It's true that diabetics drive cars all the time. But McCartt argues that a little car is not the same as a big truck. What's more, she says the life of a long-distance trucker is harder than most people realize. In her view, it's not the kind of life that makes it easy for people to carefully control their blood sugar.

* * *

The new program has won the support of diabetes experts like Christopher Saudek, a doctor at Johns Hopkins Hospital in Baltimore.

"Everyone ought to be evaluated on their own merits individually. I think there should not be blanket discrimination," says Saudek.

Over the years, there haven't been that many studies of insulin and driving. But Saudek says the evidence so far suggests that people who take insulin are no more likely to get into car crashes than anyone else.

He says a small percentage of diabetics do have problems with severe drops in blood sugar that could affect their driving. But, he says, "we can identify the people who are at high risk for low blood sugar and we can try to screen them out; we can effectively screen them out."

Saudek says that doctors can spot potentially high-risk drivers by looking at their medical records and past readings on their glucose monitors. If their condition is stable and they've had no problems in the past, they're unlikely to have any in the future.

As far as Saudek is concerned, the new waiver program will improve safety for everyone because it will encourage openness about the disease. "I certainly know people that are in trucking that are afraid of losing their jobs if they start insulin," Saudek says. "So they have two options. One is to take insulin secretly, and the other is to not take it and be in really poor diabetic control and put themselves at quite a risk" of diabetic complications, like eye and kidney disease.

The bottom line, he says, is if an insulin-dependent driver is as safe as anyone else, it's not fair to single them out just because they have a certain disease. And Saudek says that if the new waiver program is going to have any risks at all, they are going to be very small, and should be kept in perspective.

I wrote about this issue what seems like a hundred years ago now in a piece entitled "The Americans with Disabilities Act as Risk Regulation."

New Article on Housing Court and People with Mental Disabilities

New on Westlaw: Jeanette Zelhof, et al., Protecting the Rights of Litigants with Diminished Capacity in the New York City Housing Courts, 3 Cardozo Pub. L. Pol'y & Ethics J. 733 (2006). From the introduction:

According to a 2002 New York City Department of Health and Mental Hygiene Community Health Survey, approximately 381,000 New Yorkers suffer from some form of serious mental illness. The New York City Department of Aging indicates that, according to the 2000 Census, there are over 930,000 persons over age 65 living in New York City. This number does not include those living in "group quarters," a category that includes nursing homes and other institutions. Thus, large numbers of individuals in New York City who are afflicted with mental illness or who are over age 65 are at risk of being sued in proceedings in the Housing Part of the Civil Court of the City of New York (the Housing Court) in the event of nonpayment of rent or allegations of activities that could jeopardize their tenancies.

Individuals with mental illness and individuals suffering from age-related infirmities may experience great difficulty negotiating the Housing Court system. The system has strict procedural requirements, lacks a right to assigned counsel, yet has a mandate to summarily process cases. Individuals with diminished capacity, without understanding the legal consequences of their consent, have easily been pressured into signing agreements that give judgments and warrants to landlords. These individuals may also be more susceptible than other litigants to the pressure on Housing Court judges to expeditiously process summary proceedings. They may also be adversely impacted by the Housing Court's hectic environment, where, often, little time is allowed for inexperienced defendants to fully comprehend the issues despite the enormity of the rights at stake.

On the occasion of the 30th Anniversary of the Housing Court, this article examines the statutory and jurisprudential bases for protections currently in place for litigants with diminished mental capacity. This article also suggests improvements, including accommodations pursuant to the Americans with Disabilities Act of 1990 (the ADA) and a right to counsel, so that the Housing Court can better serve and protect the rights of litigants with diminished capacity.

Salon on Life at a Residential Community Mental Health Center

See this first-person account by the center's director.

Wall Street Journal on People with Mental Illness in Prison

See this article. An excerpt:

For years American prisons have been grappling with a surge in the ranks of mentally ill prisoners, caused in part by the shuttering of state-run mental-health facilities a generation ago. The Joseph Harp prison spotlights an often-overlooked aspect of that problem: how it has become self-perpetuating. Once imprisoned, mentally ill inmates are rarely paroled. Some "max out" their sentence, serving at least 85% of their term, and are released. With nowhere to go, and with a recidivism rate higher than that of the general prison population, they often end up back where they started.

Of the mentally ill prisoners housed at Joe Harp, as it is known, none are likely to be paroled, says James Keithley, the prison's psychologist and clinical coordinator. And then, if a violent inmate completes his sentence and is discharged, "Where do I send him? Mama don't want him," Dr. Keithley says. "If they act up here, you know what will happen if they're released. It scares the hell out of me."

In recent years, Oklahoma has had a dramatic increase in mentally ill prisoners, in part because it only recently shuttered state-run, mental-health facilities. According to the state, the number of inmates on psychiatric medications more than tripled between 1998 and 2005 to 4,017. The system's budget for such medication climbed even faster, growing from $154,000 a year to more than $2 million, in part because of the growing number of medications available. By comparison, the overall prison population rose 14% to 23,205.

The National Alliance on Mental Illness estimates there are 300,000 people suffering from mental illness in state and federal prisons, compared with 70,000 in state psychiatric facilities. "Our jails and prisons are our largest mental-health facilities now," says U.S. Sen. Mike DeWine, a Republican from Ohio who has co-authored bills to create federal programs to improve services for mentally ill inmates.

Thanks to How Appealing for the tip.

Student Note on Cost and LRE Under IDEA

New on Westlaw: Ashley Oliver, Note, Should Special Education Have a Price Tag? A New Reasonableness Standard for Cost, 83 Denv. U. L. Rev. 763 (2006). From the introduction:

The increasing cost of educating disabled children is one of the most pressing concerns among educators today. According to the most recent national study, the total spending on special education students was $50.0 billion compared to only $27.3 billion for regular education during academic year 1999- 2000. Another study reported the national average of per pupil expenditures for special education as $12,525, which was ninety-one percent more than the general education population per pupil expenditure of $6,556. Between 1995 and 2003, the number of students classified as needing special education services jumped from roughly 4.5 million nationwide to approximately 6.3 million, a thirty-eight percent increase.

A circuit split exists surrounding the best test to employ when determining the most appropriate classroom placement of a special education student under the Individuals with Disabilities Act (IDEA). One of the most controversial issues surrounding the circuit split concerns if and how the cost of a particular placement to a school district should factor into the decision of which learning environment is most appropriate for the child. This article first provides a brief legislative history of IDEA which has strongly influenced the emergence of the three different circuit tests. Second, this piece describes the evolution of the three tests including their strengths and weaknesses as well as the Tenth Circuit's recent adoption of one of the tests in L.B. ex rel. K.B. v. Nebo School District. Third, it discusses the court's failure in Nebo to articulate practical standards and argues that the Tenth Circuit erred in failing to include cost as one of its factors. Finally, this article proposes a new cost standard for the courts to consider in placing a disabled child in the most suitable learning environment.

Great Resource on Murphy

Ruth Colker writes to let me know that she has posted a page that contains lots of good information (including briefs and lower court opinions) about Arlington Central v. Murphy, the IDEA expert fees case that the Supreme Court will decide this Term. Check it out!

Blogging Against Disablism

(WARNING: Long, personal post here. Feel free to skip if you're just looking for the news.)

I hadn't been sure what to do for Blogging Against Disablism Day. I'm against disablism (even if we don't usually call it that in the USA), as anyone who takes a look at the articles I've written or the kinds of clients I've represented can tell. But I don't usually use this blog as a forum for my deep views about disability.

A friend and colleague told me today that what's great about my academic work is that it forces people to face up to the fact that they're resistant to the ADA. I hadn't really thought about my work that way, although people clearly are. And I have to say that as a person who spends a lot of time thinking about and working on disability issues, I am continually stunned by how little traction the civil rights model has had with even enlightened, educated folks.

Maybe I have a bit of the zeal of a convert on these issues. I don't have any particular disabilities. When I went to work as a young lawyer for the Civil Rights Division of the U.S. Justice Department (working for Deval Patrick, a great civil rights leader who deserves your support in his run for Governor of Massachusetts), I wanted to do voting rights, fair housing, employment discrimination, school desegregation -- everything except disability rights. This was in the early days of the ADA, which I thought of as Republican civil rights legislation. Everyone likes people with disabilities, I thought (though I probably used the term "the disabled"), so disability rights work is too easy -- not the hard work of going after the bad guys that I thought civil rights work entailed.

As it happened, I ended up getting assigned to the Division's Appellate Section, where I could work on the whole range of civil rights issues without being limited to any one kind of litigation. I started off doing a lot of voting rights work, which I really loved, and some hate crimes work, which I thought was very interesting and important. But the ADA was new, and the courts were resolving a lot of uncharted issues under the statute, so there was plenty of disability rights work to go around.

Inevitably, I picked up a disability rights case. It involved a 20-year-old with very mild hemophilia who wanted to be a firefighter. His condition hadn't kept him from playing sports or serving in the military, but the local fire department refused to hire him. When he sued, they defended (ultimately successfully) on the ground that his hemophilia was so mild that he had no "disability" within the protection of the ADA. In a brief and argument before the Fifth Circuit Court of Appeals, I tried to convince the court that if the fire department thought the plaintiff's condition made him unable to work as a firefighter (or, indeed, in any job involving a high risk of trauma), it "regarded" him as disabled for purposes of the ADA. But I lost.

In that case, I saw the same kind of small-minded aversion to difference that one still sees in race and gender cases. The fire department saw a diagnosis of hemophilia on the plaintiff's medical record, and he all of a sudden became a category rather than an individual -- he became something fragile and untouchable. A talented kid who wanted all his life to be a firefighter was kept out because the fire department didn't know how to deal with people who were different. And the federal courts wouldn't even let him show that the refusal to hire him was irrational -- that he really was just as qualified as everyone else!

Now I felt the same moral outrage that got me into civil rights law in the first place. I kept doing race cases, but by the time I left DOJ I was spending most of my time on disability rights cases. I worked on cases that highlighted for me the harm of unnecessary institutionalization. I worked on a case about the fear and exclusion faced by people with HIV. And I worked on cases in which people with disabilities were just demanding to be allowed to live the same kinds of lives as everyone else. They were seeking ordinary things, like the opportunity to go to a basketball game and see the action on the floor, or the chance to cast a secret ballot on election day. And they were met by business owners and bureaucrats who were annoyed at being forced to listen and respond to these people about whom they had taken no account in constructing their buildings and their routines.

When I entered the academy a few years after I left DOJ, it was clear that disability rights would be a major focus of my scholarship. I was interested in the connections between disability rights law and other kinds of civil rights law, and I wanted to tease out what the disability rights movement could teach us about civil rights generally. I also wanted -- and this has been more controversial -- to take seriously the tensions within the disability rights movement. No social movement is a monolith, and the disability rights movement is no exception. I wanted my work to be true to all of the complexities and contradictions of the movement. I also wanted to keep working on disability rights cases, to try to help the law develop in the right way.

After my first article on the ADA had been accepted for publication, my wonderful twins were born. My son was born with a very rare physical disability, and he had his right foot amputated at four months. Although I'm very cognizant of my epistemic limitations as a nondisabled parent, the last six-plus years have given me a new, complementary perspective on disability in America. I've seen, from the patient's side, how the medical and insurance systems deal with (and fail to take account of) people with disabilities -- even "minor" ones. And I've seen disablist attitudes in action: the people who thought my son's physical disability was matched by an intellectual disability, only to be blown away by his smarts (last summer, he read all the Harry Potter books by himself); the people who don't want him to try the same physical activities as other kids, because they think it's too "risky," etc. And that's probably kept me spending more of my time on disability work than on other things I might have moved to with full force.

I guess the thing I keep coming back to is how hard it is to get people to take disability rights seriously even today. People too often think of people with disabilities as complainers o wwhant everything to be changed around for them. What I wish folks would understand is that all human institutions and structures were built with a nondisabled population in mind. When people with disabilities ask for accommodations, they're just asking you to think about them, too.

As more buildings become accessible, and more people with disabilities get more advanced educations, these attitudes are going to change. Already, people without disabilities interact with people with disabilities in ordinary daily activities far more often than they did 20 years ago. And the ADA has undeniably helped things. I'm a old-time liberal, so I believe it's that kind of intergroup contact, working on common projects under conditions of relative equality, that's really going to change things. The law can help a little, and lawyers like me should try to make sure the law helps as much as it can. But in the end, it's a social revolution, not a legal one, that's going to end disablism in America.