If you have a particular interest in the brief I filed in Ault v. Walt Disney World Co. in federal court in Florida, on the fairness of the settlement by the parties which upheld the Segway ban, let me know by a comment here, with your email, and I'd be happy to provide it.
Excerpt - without footnotes -
Plainly, a 100% or blanket ban is a per se violation of the ADA. To the same effect is PGA Tours, Inc. v. Martin, 532 U.S. 661 (2001). The Supreme Court held that a blanket ban on golf carts in professional play violates the ADA; the refusal of a golf association to consider the disabled golfer’s personal circumstances (his use of a golf cart) violates the ADA; 532 U.S. at 688 (“refusal to consider Martin's personal circumstances in deciding whether to accommodate his disability runs counter to the clear language and purpose of the ADA.”). An “individualized inquiry” must be made:
"To comply with this command, an individualized inquiry must be made to determine whether a specific modification for a particular person's disability would be reasonable under the circumstances as well as necessary for that person, and yet at the same time not work a fundamental alteration. "
532 U.S. at 688 (citations omitted).
Sunday, August 9, 2009
Thursday, July 16, 2009
USA, 23 States Object to Settlement : Segways, Walt Disney World, Title III ADA, Discrimination
I'm lead counsel in an unusual case in which I represent objectors to a settlement.
Private plaintiffs sued Walt Disney World Co. in 2007 claiming that Disney's ban on Segways for people with disabilities violates the ADA. It was filed as a class action. At the end of 2008, these plaintiffs settled for an agreement which would UPHOLD the 100% blanket ban on Segway use, among other provisions which are questionable in my view.
I represent Disability Rights Advocates for Technology, an amazing organization, and nearly 100 objectors. The US Dept of Justice has joined us in objecting as have 23 States, and a number of national disability groups.
A hearing in June 2009 has been followed by post-trial briefing. The issue is before the judge.
There appears to be no middle ground on this and the case is likely headed toward the Court of Appeals and the Supreme Court, whoever wins in the lower courts.
Below is the introduction to our brief. A PDF is available on request to me. david@ferleger.com
David Ferleger
I. INTRODUCTION
The United States, 23 States, national disability organizations representing tens of
thousands of people, and nearly 100 individuals request this Court to disapprove the
settlement. The settlement would establish a permanent 100% ban on the use by people with
disabilities of a unique, safe mobility device at Disney properties. The ban and other
provisions violate the Americans with Disabilities Act which acknowledges and embraces new technologies that assist individuals with disabilities. No blanket exclusionary policy
from facility access has been upheld by any court. Such a policy per se violates the ADA and
is contrary to controlling Supreme Court precedent.
Disney’s proposition that its way is the only way for people with disabilities to travel
is akin to asking a stigmatized minority to sit at the back of the bus, use a different water
fountain, or to use a separate lunch counter. You can still see from the back of the bus, and
the food and water are the same. In truth, though, they are not the same. The ADA put an end to forcing people with disabilities to travel a different path.
Private plaintiffs sued Walt Disney World Co. in 2007 claiming that Disney's ban on Segways for people with disabilities violates the ADA. It was filed as a class action. At the end of 2008, these plaintiffs settled for an agreement which would UPHOLD the 100% blanket ban on Segway use, among other provisions which are questionable in my view.
I represent Disability Rights Advocates for Technology, an amazing organization, and nearly 100 objectors. The US Dept of Justice has joined us in objecting as have 23 States, and a number of national disability groups.
A hearing in June 2009 has been followed by post-trial briefing. The issue is before the judge.
There appears to be no middle ground on this and the case is likely headed toward the Court of Appeals and the Supreme Court, whoever wins in the lower courts.
Below is the introduction to our brief. A PDF is available on request to me. david@ferleger.com
David Ferleger
I. INTRODUCTION
The United States, 23 States, national disability organizations representing tens of
thousands of people, and nearly 100 individuals request this Court to disapprove the
settlement. The settlement would establish a permanent 100% ban on the use by people with
disabilities of a unique, safe mobility device at Disney properties. The ban and other
provisions violate the Americans with Disabilities Act which acknowledges and embraces new technologies that assist individuals with disabilities. No blanket exclusionary policy
from facility access has been upheld by any court. Such a policy per se violates the ADA and
is contrary to controlling Supreme Court precedent.
Disney’s proposition that its way is the only way for people with disabilities to travel
is akin to asking a stigmatized minority to sit at the back of the bus, use a different water
fountain, or to use a separate lunch counter. You can still see from the back of the bus, and
the food and water are the same. In truth, though, they are not the same. The ADA put an end to forcing people with disabilities to travel a different path.
Thursday, August 2, 2007
The Supreme Court Asked to Decide Employment Rights of Job Applicants with Disabilities
Charles Littleton, Jr. versus Walmart Stores, Inc.
On July 31, 2007, Charles Littleton, Jr., a young Birmingham, Alabama, man filed a petition with the United States Supreme Court asking the court to hear his lawsuit against Wal-Mart.
The case raises questions of national importance regarding the employment rights of people with disabilities. The lower courts are in deep conflict over an issue in the case which particularly affects people with mental retardation, that is, how to define “disability.”
In March, 2003, Mr. Littleton applied to work as a cart pusher at the Leeds, Alabama Wal-Mart. Due to his disability, he has difficulty in formal questioning and relating, such as in an interview, and in understanding and answering questions. The store agreed that his job coach could be present to assist him in the interview but Wal-Mart violated the agreement, and sent Mr. Littleton’s job coach from the room when the interviews took place. Wal-Mart denied him the job due to what it called “poor interpersonal skills.”
The lower courts ruled against Mr. Littleton, finding that he is not “disabled” under the Americans with Disabilities Act.
The petition for certiorari asks the Supreme Court to resolve a question on which the courts of appeals nation-wide have come to different conclusions: are substantial limitations on “social interaction” or “interpersonal skills” (such as those in mental retardation) a major life activity which entitles a disabled person to coverage under the ADA? It also asks the court to recognize that the lower courts were wrong when they ruled that Mr. Littleton is not disabled under the ADA.
The impact of the ADA on the Nation’s commerce, consumers and people with disabilities is immense. People are now productive in our economy who would in the past have been excluded. Census 2000 counted 49.7 million non-institutionalized people with a long lasting condition or disability, including 33.2 million aged 16 to 64, of whom 6.8 million have a mental disability. Also, 21.3 million people in the 16 to 64 age group were found to have a condition that affected their ability to work at a job or business. 6.7 million in that age group have a mental disability.
People with mental retardation comprise a substantial part of our Nation’s population. There are 4.56 million people with mental retardation and developmental disabilities (MR/DD) in the United States. Total federal, state and local spending for MR/DD services in FY 2002 was $34.6 billion.
The Americans with Disabilities Act of 1990 (ADA), capped national efforts to effectuate civil rights protection for Americans with Disabilities.. Congress intended the act to change behaviors affecting a vulnerable minority, akin to legislation to overturn racial discrimination. President Bush referred to the ADA as an “historic new civil rights Act.” Senator Tom Harkin, a key sponsor, described it as the “20th century Emancipation Proclamation for all persons with disabilities.” Senator Robert Dole called it “the most comprehensive civil rights legislation our Nation has ever seen.”
With the assistance of job coaches, such as that afforded to Mr. Littleton, doors to employment have opened through what is called “supported employment.” Supported employment is paid, competitive work for people who have severe disabilities and a demonstrated inability to gain and maintain traditional employment.
Earnings in supported employment are estimated to be nearly $600 million annually, with over $100 million paid by such disabled workers in federal state and local taxes; individuals with disabilities in supported employment increased their annual earnings 490%. People with disabilities in supported employment rose from about 10,000 persons in FY 1986 to 139,812 in FY 1995. The number of supported employment provider agencies grew steadily from an initial count of 324 for FY 1986 to 3,690 in FY 1995..
The attorney for Mr. Littleton is David Ferleger, Esq., Bala Cynwyd, PA. david@ferleger.com, 610-668-3889.
On July 31, 2007, Charles Littleton, Jr., a young Birmingham, Alabama, man filed a petition with the United States Supreme Court asking the court to hear his lawsuit against Wal-Mart.
The case raises questions of national importance regarding the employment rights of people with disabilities. The lower courts are in deep conflict over an issue in the case which particularly affects people with mental retardation, that is, how to define “disability.”
In March, 2003, Mr. Littleton applied to work as a cart pusher at the Leeds, Alabama Wal-Mart. Due to his disability, he has difficulty in formal questioning and relating, such as in an interview, and in understanding and answering questions. The store agreed that his job coach could be present to assist him in the interview but Wal-Mart violated the agreement, and sent Mr. Littleton’s job coach from the room when the interviews took place. Wal-Mart denied him the job due to what it called “poor interpersonal skills.”
The lower courts ruled against Mr. Littleton, finding that he is not “disabled” under the Americans with Disabilities Act.
The petition for certiorari asks the Supreme Court to resolve a question on which the courts of appeals nation-wide have come to different conclusions: are substantial limitations on “social interaction” or “interpersonal skills” (such as those in mental retardation) a major life activity which entitles a disabled person to coverage under the ADA? It also asks the court to recognize that the lower courts were wrong when they ruled that Mr. Littleton is not disabled under the ADA.
The impact of the ADA on the Nation’s commerce, consumers and people with disabilities is immense. People are now productive in our economy who would in the past have been excluded. Census 2000 counted 49.7 million non-institutionalized people with a long lasting condition or disability, including 33.2 million aged 16 to 64, of whom 6.8 million have a mental disability. Also, 21.3 million people in the 16 to 64 age group were found to have a condition that affected their ability to work at a job or business. 6.7 million in that age group have a mental disability.
People with mental retardation comprise a substantial part of our Nation’s population. There are 4.56 million people with mental retardation and developmental disabilities (MR/DD) in the United States. Total federal, state and local spending for MR/DD services in FY 2002 was $34.6 billion.
The Americans with Disabilities Act of 1990 (ADA), capped national efforts to effectuate civil rights protection for Americans with Disabilities.. Congress intended the act to change behaviors affecting a vulnerable minority, akin to legislation to overturn racial discrimination. President Bush referred to the ADA as an “historic new civil rights Act.” Senator Tom Harkin, a key sponsor, described it as the “20th century Emancipation Proclamation for all persons with disabilities.” Senator Robert Dole called it “the most comprehensive civil rights legislation our Nation has ever seen.”
With the assistance of job coaches, such as that afforded to Mr. Littleton, doors to employment have opened through what is called “supported employment.” Supported employment is paid, competitive work for people who have severe disabilities and a demonstrated inability to gain and maintain traditional employment.
Earnings in supported employment are estimated to be nearly $600 million annually, with over $100 million paid by such disabled workers in federal state and local taxes; individuals with disabilities in supported employment increased their annual earnings 490%. People with disabilities in supported employment rose from about 10,000 persons in FY 1986 to 139,812 in FY 1995. The number of supported employment provider agencies grew steadily from an initial count of 324 for FY 1986 to 3,690 in FY 1995..
The attorney for Mr. Littleton is David Ferleger, Esq., Bala Cynwyd, PA. david@ferleger.com, 610-668-3889.
Thursday, April 26, 2007
Right to Intervene in Community Placement Olmstead Litigation
In a lawsuit for community placement, which institutional residents are the plaintiff class? To what participation in the suit are residents satisfied with institutional care entitled?
This is an ADA class action by people with developmental disabilities who live in institutions but, with adequate services, could live in the community. As the appeals court put it, the suit’s purpose is “to hasten the state of Illinois down the road to community-based care.” The class is not yet certified.
The suit was not unanimously supported by other residents and families. Representatives institutional residents who do not wish to live in the community were worried they might be included in a class which they opposed. They asked the trial court to allow them to intervene in the case. The trial court denied the motion. In this recent decision, the Seventh Circuit Court of Appeals agreed that there is no right to intervene, nor is permissive intervention required.
The appeals court recognized the importance of these issues and the dramatic effect of the Americans with Disabilities Act on this sort of litigation. Citing Olmstead v. L.C., 527 U.S. 581 (1999), the court began by noting that “[t]his case arises in the context of a much larger debate over the proper way to provide care for the developmentally disabled.” However, Olmstead “has left the exact route to implementing this integration mandate somewhat murky.”
Because the complaint emphasized the need for the state to provide a “choice” between institutional and community services, and the proposed class consisted of people who “do not oppose” community placement, the court of appeals was satisfied that the proposed intervenors’ rights could not be impaired by the action going forward without their participation. In any event, the court found that the state defendants presumptively would provide adequate representation for the group who wanted to remain in institutional care.
The appeals court thus avoided clarifying the “murky” Olmstead standards and indicated that the lines set out in the class definition (separating those desiring placement from those opposing it) are sufficient to defeat motions to intervene such as these.
NOTE: For a decision on whether one has a right to live in institutional settings, see Richard C. ex rel. Kathy B. v. Houstoun, 196 F.R.D. 288 (W.D.Pa.1999), aff'd sub nom. Richard C. v. Snider, 229 F.3d 1139 (3d Cir.2000) (unpublished order).
Ligas v. Maram, 478 F.3d 771 (7th Cir. 2007).
This is an ADA class action by people with developmental disabilities who live in institutions but, with adequate services, could live in the community. As the appeals court put it, the suit’s purpose is “to hasten the state of Illinois down the road to community-based care.” The class is not yet certified.
The suit was not unanimously supported by other residents and families. Representatives institutional residents who do not wish to live in the community were worried they might be included in a class which they opposed. They asked the trial court to allow them to intervene in the case. The trial court denied the motion. In this recent decision, the Seventh Circuit Court of Appeals agreed that there is no right to intervene, nor is permissive intervention required.
The appeals court recognized the importance of these issues and the dramatic effect of the Americans with Disabilities Act on this sort of litigation. Citing Olmstead v. L.C., 527 U.S. 581 (1999), the court began by noting that “[t]his case arises in the context of a much larger debate over the proper way to provide care for the developmentally disabled.” However, Olmstead “has left the exact route to implementing this integration mandate somewhat murky.”
Because the complaint emphasized the need for the state to provide a “choice” between institutional and community services, and the proposed class consisted of people who “do not oppose” community placement, the court of appeals was satisfied that the proposed intervenors’ rights could not be impaired by the action going forward without their participation. In any event, the court found that the state defendants presumptively would provide adequate representation for the group who wanted to remain in institutional care.
The appeals court thus avoided clarifying the “murky” Olmstead standards and indicated that the lines set out in the class definition (separating those desiring placement from those opposing it) are sufficient to defeat motions to intervene such as these.
NOTE: For a decision on whether one has a right to live in institutional settings, see Richard C. ex rel. Kathy B. v. Houstoun, 196 F.R.D. 288 (W.D.Pa.1999), aff'd sub nom. Richard C. v. Snider, 229 F.3d 1139 (3d Cir.2000) (unpublished order).
Ligas v. Maram, 478 F.3d 771 (7th Cir. 2007).
Monday, April 2, 2007
High State Officials (Even a Governor) Must Provide Information in ADA Suits
The obligation to provide information in the pre-trial stages of an ADA case apply to high state officials, including a governor, even if no personal involvement of the official is alleged in the case.
This is a suit by parole violators in New York City's jails, claiming that they have been incarcerated in the city's jails needlessly while awaiting an opening in an appopriate treatment program which can address their serious and persistent mental health conditions and additions. The suit's basis is the ADA and the Rehabilitation Act.
The plaintiff prisoners sued the Governor and other executive branch officials. The Governor refused to answer discovery requests, claiming that he need not do so because no claims had been made that he was personally involved in the matters in the suit and that the other defendants' answers represent the response of the executive branch, so his answers would be duplicative. The Governor, however, did not make a timely objection or request for a protective order.
The court held the Governor to the rules and required him to answer the discovery (or show an agreement among the parties that the Governor would be bound by the answers of others). The Governor's violation of the rules was not in bad faith, so no sanctions were imposed.
However, given the Governor's actions, he was found to have waived all objections to interrogatories and thus must answer them in full by a date set by the court. Plaintiffs also won an order that the Governor pay their attorney's fees and expenses on this motion.
Jobe O. v. Pataki, Slip Copy, 2007 WL 844707 (S.D.N.Y., Mar. 15, 2007).
This is a suit by parole violators in New York City's jails, claiming that they have been incarcerated in the city's jails needlessly while awaiting an opening in an appopriate treatment program which can address their serious and persistent mental health conditions and additions. The suit's basis is the ADA and the Rehabilitation Act.
The plaintiff prisoners sued the Governor and other executive branch officials. The Governor refused to answer discovery requests, claiming that he need not do so because no claims had been made that he was personally involved in the matters in the suit and that the other defendants' answers represent the response of the executive branch, so his answers would be duplicative. The Governor, however, did not make a timely objection or request for a protective order.
The court held the Governor to the rules and required him to answer the discovery (or show an agreement among the parties that the Governor would be bound by the answers of others). The Governor's violation of the rules was not in bad faith, so no sanctions were imposed.
However, given the Governor's actions, he was found to have waived all objections to interrogatories and thus must answer them in full by a date set by the court. Plaintiffs also won an order that the Governor pay their attorney's fees and expenses on this motion.
Jobe O. v. Pataki, Slip Copy, 2007 WL 844707 (S.D.N.Y., Mar. 15, 2007).
Uncommon Appeals Court Case on the ADA’s Religious Exemption
In an Americans with Disabilies Act (ADA) suit against a private Quaker school and three of its employees, parents of a student claimed that the school created a discriminatory environment complete with public humiliation, improper physical discipline, and an orchestrated campaign to force his withdrawal from the school. The school also allegedly failed to adequately accommodate the boy's Attention Deficit Disorder and related learning disabilities.
The lower court had granted judgment to the school on account of the ADA's exemption for religious organizations. The basis of that decision was a single affidavit by the Head of School describing the intimate connections between the local Quaker Meeting and the school; the family filing suit had not had an opportunity for pre-trial discovery into the factual basis for any religious exemption.
The crucial issue in this case for the court is whether the school is "controlled" by the Quaker religious organization. The ADA provides that its provisions “shall not apply ... to religious organizations or entities controlled by religious organizations, including places of worship.” 42 U.S.C. § 12187. If Abington is a religious organization (or controlled by one), then the case must be dismissed.
Abington Friends School was established in 1697, and is the oldest primary and secondary educational institution in the country that has operated continuously at the same location. It is affiliated with the Abington Monthly Meeting of the Religious Society of Friends (Quakers). The family filing suit claimed that, although the school is a "Quaker" school, it "does not conduct itself or hold itself out as a religious organization or an entity controlled by a religious organization."
The family requested pre-trial discovery of facts related to the ownership and operation of the school, its curriculum, the religious affiliation of staff, teachers and students, and the Quaker Meeting's control over the school. The lower court denied the discovery and granted summary judgment to the school, concluding that the "religious organization" test is not a factual test, but rather one to be decided on the law, as informed by the Head of School's affidavit.
In this decision by the federal Third Circuit Court of Appeals, the court noted the paucity of caselaw on the religious exemption. "No court of appeals has yet fully examined the ADA's religious exemption, and the undeveloped state of this record makes us reticent to do so now." Whether Abington qualifies is a "mixed question of law and fact," and the family is entitled, the court held, to discovery on the school's nature, religious or otherwise. The court concluded:
"One of the oldest primary and secondary schools in the country, long known for its Quaker heritage, superficially seems to be a strong candidate. But discovery digs subsurface and may unearth facts that tend to support the contrary conclusion. Because the Does were not given an opportunity to marshal facts in aid of their argument, we vacate the District Court's grant of summary judgment and remand this case for further proceedings.”
Doe v. Abington Friends School, --- F.3d ----, 2007 WL 777561 (3d Cir., Mar. 15, 2007).
The lower court had granted judgment to the school on account of the ADA's exemption for religious organizations. The basis of that decision was a single affidavit by the Head of School describing the intimate connections between the local Quaker Meeting and the school; the family filing suit had not had an opportunity for pre-trial discovery into the factual basis for any religious exemption.
The crucial issue in this case for the court is whether the school is "controlled" by the Quaker religious organization. The ADA provides that its provisions “shall not apply ... to religious organizations or entities controlled by religious organizations, including places of worship.” 42 U.S.C. § 12187. If Abington is a religious organization (or controlled by one), then the case must be dismissed.
Abington Friends School was established in 1697, and is the oldest primary and secondary educational institution in the country that has operated continuously at the same location. It is affiliated with the Abington Monthly Meeting of the Religious Society of Friends (Quakers). The family filing suit claimed that, although the school is a "Quaker" school, it "does not conduct itself or hold itself out as a religious organization or an entity controlled by a religious organization."
The family requested pre-trial discovery of facts related to the ownership and operation of the school, its curriculum, the religious affiliation of staff, teachers and students, and the Quaker Meeting's control over the school. The lower court denied the discovery and granted summary judgment to the school, concluding that the "religious organization" test is not a factual test, but rather one to be decided on the law, as informed by the Head of School's affidavit.
In this decision by the federal Third Circuit Court of Appeals, the court noted the paucity of caselaw on the religious exemption. "No court of appeals has yet fully examined the ADA's religious exemption, and the undeveloped state of this record makes us reticent to do so now." Whether Abington qualifies is a "mixed question of law and fact," and the family is entitled, the court held, to discovery on the school's nature, religious or otherwise. The court concluded:
"One of the oldest primary and secondary schools in the country, long known for its Quaker heritage, superficially seems to be a strong candidate. But discovery digs subsurface and may unearth facts that tend to support the contrary conclusion. Because the Does were not given an opportunity to marshal facts in aid of their argument, we vacate the District Court's grant of summary judgment and remand this case for further proceedings.”
Doe v. Abington Friends School, --- F.3d ----, 2007 WL 777561 (3d Cir., Mar. 15, 2007).
Abuse of Public School Preschool Child
Think of a four-year old you have known. The gait and smile and size of such a child. And now, if you can, try to imagine someone beating that four-year old. A public school teacher recently did that, and more, to a youngster with disabilities. This happened in school and the authorities knew and delayed protecting the child from abuse, a lawsuit alleged.
The 9th Circuit Court of Appeals rejected the school's claims of immunity from suit under constitutional principles.
Claiming abuse including being beaten, slapped, body slammed, unexplained bruises and shoeless walks from the school bus to the classroom, a four year old child in a public school sued the school under the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the IDEA, and the Constitution. The child is non-verbal, autistic and has tuberous schlerosis, a neurological disease which causes tumors in various organs and skin lesions, among other things.
A particular teacher in a special education program admitted slapping the child's hands repeatedly and hitting his head and face. A detective witnessed the teacher "maliciously body slam..." the child into a chair. Four times, the teacher forced the child to walk without shoes across the asphalt from the school bus to the class room. The child began to show violent behavior. However, although the school knew of the abuse, the parent were not told of it for a long time. Months after the first abuse report, the teacher was placed on administrative leave.
The court held that the slapping, beating and slamming were unreasonable force against a student who, here, "was even more vulnerable than the average pre-school child." In doing so, the court rejected the school's "effort to candycoat" the claims by asserting that this was no more than a "failure to conform to best practices." The physical abuse violated the Fourth Amendment and the teacher has no qualified immunity from liability. On the other hand, forcing the child to walk shoeless was OK because "the teacher was simply attempting to teach Preschooler II not to remove his shoes on the bus," regardless of the pedagogical wisdom of this "lesson." The 9th Circuit held that unexplained bruising also do not rise to the level of constitutional violation.
As to the supervisory school officials (the superintendent, principal and others), there was sufficient basis to continue the suit on the grounds of the alleged "claimed knowledge or 'blind eye' acquiescence" in the abuse. Also, the supervisory officials' failure to remediate might trigger their liability, the court held because "a reasonable special education school official would know that [the teacher's] alleged abusive conduct, and the failure of other special education officials to address that conduct, are grounds for liability."
Preschooler II v. Clark County School Board of Trustees, --- F.3d ----, 2007 WL 840337 (9th Cir., Mar. 21, 2007).
The 9th Circuit Court of Appeals rejected the school's claims of immunity from suit under constitutional principles.
Claiming abuse including being beaten, slapped, body slammed, unexplained bruises and shoeless walks from the school bus to the classroom, a four year old child in a public school sued the school under the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the IDEA, and the Constitution. The child is non-verbal, autistic and has tuberous schlerosis, a neurological disease which causes tumors in various organs and skin lesions, among other things.
A particular teacher in a special education program admitted slapping the child's hands repeatedly and hitting his head and face. A detective witnessed the teacher "maliciously body slam..." the child into a chair. Four times, the teacher forced the child to walk without shoes across the asphalt from the school bus to the class room. The child began to show violent behavior. However, although the school knew of the abuse, the parent were not told of it for a long time. Months after the first abuse report, the teacher was placed on administrative leave.
The court held that the slapping, beating and slamming were unreasonable force against a student who, here, "was even more vulnerable than the average pre-school child." In doing so, the court rejected the school's "effort to candycoat" the claims by asserting that this was no more than a "failure to conform to best practices." The physical abuse violated the Fourth Amendment and the teacher has no qualified immunity from liability. On the other hand, forcing the child to walk shoeless was OK because "the teacher was simply attempting to teach Preschooler II not to remove his shoes on the bus," regardless of the pedagogical wisdom of this "lesson." The 9th Circuit held that unexplained bruising also do not rise to the level of constitutional violation.
As to the supervisory school officials (the superintendent, principal and others), there was sufficient basis to continue the suit on the grounds of the alleged "claimed knowledge or 'blind eye' acquiescence" in the abuse. Also, the supervisory officials' failure to remediate might trigger their liability, the court held because "a reasonable special education school official would know that [the teacher's] alleged abusive conduct, and the failure of other special education officials to address that conduct, are grounds for liability."
Preschooler II v. Clark County School Board of Trustees, --- F.3d ----, 2007 WL 840337 (9th Cir., Mar. 21, 2007).
Sunday, December 31, 2006
Contempt and Enforcement of ADA Injunctions
This case has some lessons for plaintiffs and defendants on what constitutes contempt, how to keep out of court after an ADA settlement, and on how courts respond to violations of orders. (Anyone interested in the details of medical hospital construction and ADA corrective actions will want to read the entire opinion).
What are those lessons?
• Take all decree-imposed obligations very seriously. They are likely to be enforced.
• Good communication should be a high priority. Defendants must keep plaintiffs informed of any delays or unforeseen difficulties. Frequent status reports are very helpful.
• Even in the midst of compliance disputes, defendants benefit from moving forward to the extent possible to fulfill the decree’s mandates.
• Vigorous and rigorous judicial oversight of compliance activities greatly facilitiates enforcement.
These lessons are consistent with my experience as a federal court special master and court-appointed monitor in complex litigation.
In 2003, John Mannick sued the Kaiser Oakland Hospital under the ADA and local law claming that his rights had been violated during a stay at the hospital. A 2005 Consent Decree settled the case and required the creation of: 1) accessible parking and paths of travel from the parking to the hospital; 2) an accessible patient discharge area; 3) an accessible entrance; 4) accessible patient rooms and roll-in showers/restrooms; and 5) enactment and implementation of new policies and procedures regarding patient admittance and employee training. The Consent Decree set deadlines and established details regarding these requirements.
In a Contempt Motion, Plaintiff urged that Defendants should be found in civil contempt because they failed to meet the deadlines in the Consent Decree for corrective work, did not make all reasonable efforts to comply, and failed to give notice – as required under the Decree – that they were experiencing “unforeseen difficulties” in compliance. Defendants were overdue months with regard to a number of obligations.
The hospital conceded that it did not meet the deadlines established in the Consent Decree, and, also, that they did not give the required thirty day notice with respect to unforeseen delays. However, the hospital urged that it not be held in contempt because it substantially complied with the Consent Decree and any failures to complete the corrective work on time or give notice of delays were “very minor technical violations” or inadvertent.
By the time the court held a hearing, a number of violations had been corrected and Plaintiff agreed that contempt sanctions were not appropriate for now-remedied items. Several continuing violations were still “in play,” so to speak.
The court concluded that “while Defendants have acted in good faith, they have not taken all reasonable steps to comply with the Consent Decree and therefore should be found in civil contempt.” As to various requirements, the court found that the hospital failed to explain delays, failed to expedite the design process, could have anticipated certain issues, unilaterally chose to “totally” alter one of the plans. The hospital’s failure (when former outside counsel represented it) to give plaintiff notice of delays and problems was a separate ground for contempt.
The hospital “repeatedly failed to comply with the time line required under the Decree. They failed also to notify Plaintiff at all, during this period, of the delay or the causes for the delay.” (emphasis in original).
What is the remedy for contempt? The court declined to impose monetary sanctions. In perhaps the most significant language in the decision, the court decided that compliance enforcement against a “large institution” is best effected by “more rigorous court oversight.” As the court put it:
"… a small monetary penalty will be less effective in enforcing compliance by a large institution like Defendants than will be more rigorous court oversight. Therefore, in light of Defendants' history of failing to make reasonable efforts to meet the deadlines set forth in the Consent Decree, the Court recommends that Defendants be required to participate in Compliance Hearings, to be conducted by the undersigned magistrate judge, every four months until all required work is completed. The parties shall submit a joint status report ten (10) days prior to each hearing. At such hearings, the Court could consider and recommend any further remedies that are necessary, depending on the progress of the construction."
Defendants also sought seek a modification of the Decree to eliminate some requirements and to extend certain deadlines. Defendants contended Also, the original construction estimates were off; a sixth floor room budgeted at $400,000 was now budgeted at $611,000. Two other reasons were advanced: a) the hospital is to be torn down in 2013, and b) no disabled person other than the original plaintiff has complained about the lack of accessible facilities. The court rejected all these grounds for modification of the decree. However, the court did permit Defendants to do some of the construction in phases. because the simultaneous construction of some of the accessible hospital rooms would take a large number of beds out of service, thus harming the community served by the hospital.
Mannick v. Kaiser Foundation Health Plan, Inc., 2006 WL 3734390 (Dec. 18, 2006, N.D.Cal.) (district judge adopting report by magistrate judge).
What are those lessons?
• Take all decree-imposed obligations very seriously. They are likely to be enforced.
• Good communication should be a high priority. Defendants must keep plaintiffs informed of any delays or unforeseen difficulties. Frequent status reports are very helpful.
• Even in the midst of compliance disputes, defendants benefit from moving forward to the extent possible to fulfill the decree’s mandates.
• Vigorous and rigorous judicial oversight of compliance activities greatly facilitiates enforcement.
These lessons are consistent with my experience as a federal court special master and court-appointed monitor in complex litigation.
In 2003, John Mannick sued the Kaiser Oakland Hospital under the ADA and local law claming that his rights had been violated during a stay at the hospital. A 2005 Consent Decree settled the case and required the creation of: 1) accessible parking and paths of travel from the parking to the hospital; 2) an accessible patient discharge area; 3) an accessible entrance; 4) accessible patient rooms and roll-in showers/restrooms; and 5) enactment and implementation of new policies and procedures regarding patient admittance and employee training. The Consent Decree set deadlines and established details regarding these requirements.
In a Contempt Motion, Plaintiff urged that Defendants should be found in civil contempt because they failed to meet the deadlines in the Consent Decree for corrective work, did not make all reasonable efforts to comply, and failed to give notice – as required under the Decree – that they were experiencing “unforeseen difficulties” in compliance. Defendants were overdue months with regard to a number of obligations.
The hospital conceded that it did not meet the deadlines established in the Consent Decree, and, also, that they did not give the required thirty day notice with respect to unforeseen delays. However, the hospital urged that it not be held in contempt because it substantially complied with the Consent Decree and any failures to complete the corrective work on time or give notice of delays were “very minor technical violations” or inadvertent.
By the time the court held a hearing, a number of violations had been corrected and Plaintiff agreed that contempt sanctions were not appropriate for now-remedied items. Several continuing violations were still “in play,” so to speak.
The court concluded that “while Defendants have acted in good faith, they have not taken all reasonable steps to comply with the Consent Decree and therefore should be found in civil contempt.” As to various requirements, the court found that the hospital failed to explain delays, failed to expedite the design process, could have anticipated certain issues, unilaterally chose to “totally” alter one of the plans. The hospital’s failure (when former outside counsel represented it) to give plaintiff notice of delays and problems was a separate ground for contempt.
The hospital “repeatedly failed to comply with the time line required under the Decree. They failed also to notify Plaintiff at all, during this period, of the delay or the causes for the delay.” (emphasis in original).
What is the remedy for contempt? The court declined to impose monetary sanctions. In perhaps the most significant language in the decision, the court decided that compliance enforcement against a “large institution” is best effected by “more rigorous court oversight.” As the court put it:
"… a small monetary penalty will be less effective in enforcing compliance by a large institution like Defendants than will be more rigorous court oversight. Therefore, in light of Defendants' history of failing to make reasonable efforts to meet the deadlines set forth in the Consent Decree, the Court recommends that Defendants be required to participate in Compliance Hearings, to be conducted by the undersigned magistrate judge, every four months until all required work is completed. The parties shall submit a joint status report ten (10) days prior to each hearing. At such hearings, the Court could consider and recommend any further remedies that are necessary, depending on the progress of the construction."
Defendants also sought seek a modification of the Decree to eliminate some requirements and to extend certain deadlines. Defendants contended Also, the original construction estimates were off; a sixth floor room budgeted at $400,000 was now budgeted at $611,000. Two other reasons were advanced: a) the hospital is to be torn down in 2013, and b) no disabled person other than the original plaintiff has complained about the lack of accessible facilities. The court rejected all these grounds for modification of the decree. However, the court did permit Defendants to do some of the construction in phases. because the simultaneous construction of some of the accessible hospital rooms would take a large number of beds out of service, thus harming the community served by the hospital.
Mannick v. Kaiser Foundation Health Plan, Inc., 2006 WL 3734390 (Dec. 18, 2006, N.D.Cal.) (district judge adopting report by magistrate judge).
Saturday, December 30, 2006
911 Emergency Calls, Local Police and the ADA
Emergency! Call 911! Do local police need to keep the ADA in mind when a sign language interpreter is needed? The answer may be yes, at least when no public disturbance is occurring and in a non-criminal context.
Maria Salinas sued the City of New Braunfels, Texas, for unlawful discrimination based on her hearing disability. She is deaf and uses American Sign Language (ASL) to communicate.
Ms. Salinas returned home to her apartment from work and found her boyfriend motionless on her couch. Unable to rouse him, she and a neighbor called 911 for emergency help and to request an ASL interpreter. The police did not attempt to locate an interpreter either when she called 911 or after they arrived on the scene. Ms. Salinas became increasingly distraught as she was left out of the communications around her. Even after an interpreter arrived in response to Ms. Salinas’ own efforts, the police did not at first give Ms. Salinas access to the interpreter.
Ms. Salinas sued under Section 504 of the Rehabilitation Act and the ADA. The city asked the court to dismiss the case, arguing that an interpreter eventually did arrive, but, in any event, the claim should be dismissed because it arises in the context of law enforcement activity, because police response to a 911 call does not fall in the category of “services, programs or activities of a public entity” of Title II of the ADA. How can police protect the public and be subjected day-to-day to the ADA’s mandates?
Denying the motion to dismiss, the court noted that the “services, programs, or activities” language in the ADA and the Rehabilitation Act are propertly interpreted to encompass “anything a public entity does.” Police departments are covered. While prior case law found that an on-the-street police response to a disturbance involving a disabled suspect is not within the ADA’s ambit (due to the risk in such potentially life-threatening situations), that approach does not apply here where there was no threat, the scene was secure and Ms. Salinas was not a suspect.
Therefore, a city’s 911 emergency response service is subject to the ADA.
The city’s motion to dismiss Ms. Salinas’ case was denied. Whether what was provided in this case violated the ADA and Section 504 is left to be addressed later in the case.
COMMENT: The decision is a reasonable one and tailored to the facts in the particular case. It would be quite difficult for a court to attempt in the abstract to draw specific lines to distinguish, in advance, which sorts of police activity are or are not covered to which aspects of the ADA. For now, it is a positive result that, when a 911 call establishes that a person in distress needs is deaf and needs an ASL interpreter, the city’s emergency response system needs to do more than ignore that plea.
Salinas v. City of New Braunfels, 2006 WL 3751182 (Dec, 18, 2006, W.D.Tex.)
Maria Salinas sued the City of New Braunfels, Texas, for unlawful discrimination based on her hearing disability. She is deaf and uses American Sign Language (ASL) to communicate.
Ms. Salinas returned home to her apartment from work and found her boyfriend motionless on her couch. Unable to rouse him, she and a neighbor called 911 for emergency help and to request an ASL interpreter. The police did not attempt to locate an interpreter either when she called 911 or after they arrived on the scene. Ms. Salinas became increasingly distraught as she was left out of the communications around her. Even after an interpreter arrived in response to Ms. Salinas’ own efforts, the police did not at first give Ms. Salinas access to the interpreter.
Ms. Salinas sued under Section 504 of the Rehabilitation Act and the ADA. The city asked the court to dismiss the case, arguing that an interpreter eventually did arrive, but, in any event, the claim should be dismissed because it arises in the context of law enforcement activity, because police response to a 911 call does not fall in the category of “services, programs or activities of a public entity” of Title II of the ADA. How can police protect the public and be subjected day-to-day to the ADA’s mandates?
Denying the motion to dismiss, the court noted that the “services, programs, or activities” language in the ADA and the Rehabilitation Act are propertly interpreted to encompass “anything a public entity does.” Police departments are covered. While prior case law found that an on-the-street police response to a disturbance involving a disabled suspect is not within the ADA’s ambit (due to the risk in such potentially life-threatening situations), that approach does not apply here where there was no threat, the scene was secure and Ms. Salinas was not a suspect.
Therefore, a city’s 911 emergency response service is subject to the ADA.
The city’s motion to dismiss Ms. Salinas’ case was denied. Whether what was provided in this case violated the ADA and Section 504 is left to be addressed later in the case.
COMMENT: The decision is a reasonable one and tailored to the facts in the particular case. It would be quite difficult for a court to attempt in the abstract to draw specific lines to distinguish, in advance, which sorts of police activity are or are not covered to which aspects of the ADA. For now, it is a positive result that, when a 911 call establishes that a person in distress needs is deaf and needs an ASL interpreter, the city’s emergency response system needs to do more than ignore that plea.
Salinas v. City of New Braunfels, 2006 WL 3751182 (Dec, 18, 2006, W.D.Tex.)
Wednesday, November 29, 2006
Blind Money
Close your eyes. Reach into your pocket, wallet or purse and pull out a dollar bill. Can't do it? Have to look?
United States paper money is not accessible to people who are blind, a federal court ruled in a headline-making decision. American Council of the Blind v Paulson, No. 02-0864 (D.D.C. Nov. 28, 2006).
Our paper cash is all the same size and same texture. So one cannot tell a $10 from a $50 by touch. And, interestingly, the United States is an international exception here, with many other countries having differentiated bills by size and touch. The Euro: larger denominations are longer!
The court found that the Rehabilitation Act’s Section 504 requires the U.S. Treasury to make paper currency accessible to person who are blind.
This case reminds us that the last 30 years have transformed the participation in our society of people with so-called handicaps. Invisibility and non-participation are still present, but have decreased markedly. “Non-handicapped” (or “temporarily able-bodied people”) are much more conscious of the needs of others in this regard.
The court waxed eloquent here: “There was a time when disabled people had no choice but to ask for help – to rely on the “kindness of strangers.” It was thought to be their lot. Blind people had to ask strangers to push elevator buttons for them. People in wheelchairs needed Boy Scouts to help them over curbs and up stairs. We have evolved, however, and Congress has made our evolution official, . . .”
Like so many other changes required by the ADA and the Rehabilitation Act, a revamped paper money set will benefit ALL of society. I will be able to tell a $1 from a $5 just on reaching into my pocket, or in the dark. Sorting bills will be speeded up for cash businesses. Forgers will have a harder time. And more.
We may have been blind to this issue as a society. Now, that’s over.
United States paper money is not accessible to people who are blind, a federal court ruled in a headline-making decision. American Council of the Blind v Paulson, No. 02-0864 (D.D.C. Nov. 28, 2006).
Our paper cash is all the same size and same texture. So one cannot tell a $10 from a $50 by touch. And, interestingly, the United States is an international exception here, with many other countries having differentiated bills by size and touch. The Euro: larger denominations are longer!
The court found that the Rehabilitation Act’s Section 504 requires the U.S. Treasury to make paper currency accessible to person who are blind.
This case reminds us that the last 30 years have transformed the participation in our society of people with so-called handicaps. Invisibility and non-participation are still present, but have decreased markedly. “Non-handicapped” (or “temporarily able-bodied people”) are much more conscious of the needs of others in this regard.
The court waxed eloquent here: “There was a time when disabled people had no choice but to ask for help – to rely on the “kindness of strangers.” It was thought to be their lot. Blind people had to ask strangers to push elevator buttons for them. People in wheelchairs needed Boy Scouts to help them over curbs and up stairs. We have evolved, however, and Congress has made our evolution official, . . .”
Like so many other changes required by the ADA and the Rehabilitation Act, a revamped paper money set will benefit ALL of society. I will be able to tell a $1 from a $5 just on reaching into my pocket, or in the dark. Sorting bills will be speeded up for cash businesses. Forgers will have a harder time. And more.
We may have been blind to this issue as a society. Now, that’s over.
Wednesday, November 15, 2006
Inmate's Death in Restraints. Judge: "Torture"
This is from today's New York Times, November 15, 2006. The message is virtually timeless. The use of restraints (in prisons, mental institutions, schools) is a complex issue and one with which many are grappling. This court came to some conclusions.
Judge Says Inmate Death Was ‘Torture’
By LIBBY SANDER
Published: November 15, 2006
CHICAGO, Nov. 14 — Shackled to a concrete slab, Timothy Joe Souders spent the final days of his life naked and lying in his own urine, sweating through temperatures over 100 degrees in an isolated prison cell.
Mr. Souders, a 21-year-old with a history of severe mental illness, died Aug. 6 after spending four days in a segregation cell at the Southern Michigan Correctional Facility in Jackson. His death prompted state prison officials to revise their restraint policies for unruly prisoners, limiting the use of “top of the bed” restraints to a maximum of six hours.
But this week, a federal judge in Kalamazoo said those revisions were not sufficient. Scolding corrections officials for failing to provide adequate treatment to mentally ill inmates, the judge said on Monday that the conditions leading to Mr. Souders’s death constituted “torture.”
“You are not coat racks who collect government paychecks while your work is taken to the sexton for burial,” wrote Richard A. Enslen, a senior federal district judge. “If a patient does not receive necessary medical or psychological services, including medicines and specialty care, it is not his problem, it is your problem.”
Medical experts cited in Monday’s ruling have speculated that Mr. Souders died of dehydration, though an autopsy report has not been completed.
Judge Enslen ordered an immediate ban on punitive restraints in three Jackson prison facilities holding roughly 4,500 inmates. The court has been monitoring those facilities as part of a 1985 consent decree.
Russell L. Marlan, a spokesman for the Michigan Department of Corrections, said the department disagreed with the ruling and planned to appeal. Top of the bed restraints, he said, are “nationally accepted, effective practices in correctional populations. We think the changes we’ve made in regard to these restraints are what is necessary.”
Mr. Souders, who suffered from depression and psychosis and had previously tried to hang himself at a county jail, was serving a sentence for shoplifting, said Paul W. Broschay, who is representing Mr. Souders’s estate in a federal wrongful death lawsuit against the Department of Corrections. At the time of his death, he was taking at least six medications for mental disorders.
On July 31, Mr. Souders was transferred to the segregated cell for disobeying orders. Three days later, after slipping out of soft restraints, Mr. Souders was restrained atop the concrete bed slab. Though Mr. Souders had been scheduled for a transfer to a mental health facility after a social worker found him “floridly psychotic,” the transfer never happened, and on Aug. 6, he was pronounced dead. A court-appointed doctor visiting the prison on Aug. 7 learned of Mr. Souders’s death. The doctor, Robert L. Cohen, wrote in an Aug. 14 letter to Judge Enslen: “No psychiatrist was consulted. No emergency psychiatric evaluation was obtained.” He concluded that Mr. Souders’s death “was predictable and preventable.”
Monday’s ruling is believed to be the first ban on punitive restraints in state prisons, said Elizabeth Alexander, director of the National Prison Project of the American Civil Liberties Union.
“This really is a precedent-setting decision,” Ms. Alexander said.
Judge Says Inmate Death Was ‘Torture’
By LIBBY SANDER
Published: November 15, 2006
CHICAGO, Nov. 14 — Shackled to a concrete slab, Timothy Joe Souders spent the final days of his life naked and lying in his own urine, sweating through temperatures over 100 degrees in an isolated prison cell.
Mr. Souders, a 21-year-old with a history of severe mental illness, died Aug. 6 after spending four days in a segregation cell at the Southern Michigan Correctional Facility in Jackson. His death prompted state prison officials to revise their restraint policies for unruly prisoners, limiting the use of “top of the bed” restraints to a maximum of six hours.
But this week, a federal judge in Kalamazoo said those revisions were not sufficient. Scolding corrections officials for failing to provide adequate treatment to mentally ill inmates, the judge said on Monday that the conditions leading to Mr. Souders’s death constituted “torture.”
“You are not coat racks who collect government paychecks while your work is taken to the sexton for burial,” wrote Richard A. Enslen, a senior federal district judge. “If a patient does not receive necessary medical or psychological services, including medicines and specialty care, it is not his problem, it is your problem.”
Medical experts cited in Monday’s ruling have speculated that Mr. Souders died of dehydration, though an autopsy report has not been completed.
Judge Enslen ordered an immediate ban on punitive restraints in three Jackson prison facilities holding roughly 4,500 inmates. The court has been monitoring those facilities as part of a 1985 consent decree.
Russell L. Marlan, a spokesman for the Michigan Department of Corrections, said the department disagreed with the ruling and planned to appeal. Top of the bed restraints, he said, are “nationally accepted, effective practices in correctional populations. We think the changes we’ve made in regard to these restraints are what is necessary.”
Mr. Souders, who suffered from depression and psychosis and had previously tried to hang himself at a county jail, was serving a sentence for shoplifting, said Paul W. Broschay, who is representing Mr. Souders’s estate in a federal wrongful death lawsuit against the Department of Corrections. At the time of his death, he was taking at least six medications for mental disorders.
On July 31, Mr. Souders was transferred to the segregated cell for disobeying orders. Three days later, after slipping out of soft restraints, Mr. Souders was restrained atop the concrete bed slab. Though Mr. Souders had been scheduled for a transfer to a mental health facility after a social worker found him “floridly psychotic,” the transfer never happened, and on Aug. 6, he was pronounced dead. A court-appointed doctor visiting the prison on Aug. 7 learned of Mr. Souders’s death. The doctor, Robert L. Cohen, wrote in an Aug. 14 letter to Judge Enslen: “No psychiatrist was consulted. No emergency psychiatric evaluation was obtained.” He concluded that Mr. Souders’s death “was predictable and preventable.”
Monday’s ruling is believed to be the first ban on punitive restraints in state prisons, said Elizabeth Alexander, director of the National Prison Project of the American Civil Liberties Union.
“This really is a precedent-setting decision,” Ms. Alexander said.
Monday, November 13, 2006
ADA Litigation: Too Much? Too Many? Giving Suits a Bad Name?
A California newspaper has reviewed ADA litigation in the state, with an emphasis on multiple suits by the same individuals or law firms, and cases which might prompt the public to look askance at the litigation. The article reports a six month investigation.
Titled, "STATE A MAGNET FOR SUITS BY DISABLED: Out-of-state lawyers have been lured to California by its laws," the article by Marje Lundstrom and Sam Stanton, of The Sacramento Bee, says that the ADA has made California "a magnet for lawyers and plaintiffs and for aggressive, sometimes questionable practices." Monterey County Herald (CA), November 13, 2006 Among the examples provided: "A disabled teenager was offered $1,000 by a San Diego attorney for every business he could visit to "find" ADA violations the attorney had already identified. Another disabled man who sued more than 50 businesses in Los Angeles later accused his lawyer of failing to ensure that the violations were fixed. One Southern California man who issued a string of letters demanding payment for ADA violations turned out not to be a lawyer, but a self-described "nutritionist," better known to authorities for his Internet business arranging body-parts transplants overseas. A woman is facing prosecution on insurance fraud charges after allegedly faking a disability and filing access claims against several California cities. When confronted by police, the supposedly wheelchair-dependent woman tried to run away."
A businessman is quoted calling the litigation "a big shakedown," and people with disabilities and advocates are quoted to support the need for the litigation. "If they obeyed the law, there wouldn't be any lawsuits," said Laura Williams, president of Californians for Disability Rights, the state's oldest and largest advocacy group for the disabled. The article concludes: "As it turns out, both sides may be right."
COMMENT: It is inevitable that the recognition of new rights, especially for people with relative political powerlessness, and those vulnerable to others, would prompt new varieties (and quantities) of litigation. This occurred after the 1960s civil rights movement, the women's rights movement, and the 1970s litigation on "mental patient" rights. It is probably also inevitable that the public would notice excesses and abuses in such litigation, while advocates would rightly emphasize its necessity.
I have no doubt that soon things will come to a balance. Meanwhile, we should not take for granted the immense benefit which the ADA has brought to millions of people with disabilities, and to those of us who are not disabled. It is easy to forget the pre-ADA sad state of affairs.
Titled, "STATE A MAGNET FOR SUITS BY DISABLED: Out-of-state lawyers have been lured to California by its laws," the article by Marje Lundstrom and Sam Stanton, of The Sacramento Bee, says that the ADA has made California "a magnet for lawyers and plaintiffs and for aggressive, sometimes questionable practices." Monterey County Herald (CA), November 13, 2006 Among the examples provided: "A disabled teenager was offered $1,000 by a San Diego attorney for every business he could visit to "find" ADA violations the attorney had already identified. Another disabled man who sued more than 50 businesses in Los Angeles later accused his lawyer of failing to ensure that the violations were fixed. One Southern California man who issued a string of letters demanding payment for ADA violations turned out not to be a lawyer, but a self-described "nutritionist," better known to authorities for his Internet business arranging body-parts transplants overseas. A woman is facing prosecution on insurance fraud charges after allegedly faking a disability and filing access claims against several California cities. When confronted by police, the supposedly wheelchair-dependent woman tried to run away."
A businessman is quoted calling the litigation "a big shakedown," and people with disabilities and advocates are quoted to support the need for the litigation. "If they obeyed the law, there wouldn't be any lawsuits," said Laura Williams, president of Californians for Disability Rights, the state's oldest and largest advocacy group for the disabled. The article concludes: "As it turns out, both sides may be right."
COMMENT: It is inevitable that the recognition of new rights, especially for people with relative political powerlessness, and those vulnerable to others, would prompt new varieties (and quantities) of litigation. This occurred after the 1960s civil rights movement, the women's rights movement, and the 1970s litigation on "mental patient" rights. It is probably also inevitable that the public would notice excesses and abuses in such litigation, while advocates would rightly emphasize its necessity.
I have no doubt that soon things will come to a balance. Meanwhile, we should not take for granted the immense benefit which the ADA has brought to millions of people with disabilities, and to those of us who are not disabled. It is easy to forget the pre-ADA sad state of affairs.
Olmstead Community Services Placements: Progress Slows
Comparing the 3 years before the Olmstead Supreme Court decision to the 3 years after it, researchers have found an 8% DECREASE in the decline in psychiatric institutionalization in state mental hospitals.
"Twenty years of national state hospital census data (1984-2003) were used to assess trends in the rate of declines from pre-to post-Olmstead periods. Data were organized into five four-year periods. Steady declines in the hospital census nationally were found over all periods, with especially large decreases in the 1990s. However, when the percent change in hospital census in the two periods immediately before the Olmstead decision (between 1992-1995 and 1996-1999) were compared with the percent change in the periods immediately before and immediately after the Olmstead decision (between 1996-1999 and 2000-2003), an 8 percent decrease in the magnitude of decline was seen. State hospital census continues to decline but has slowed significantly during the post-Olmstead period," wrote M.S. Salzer and colleagues, University of Pennsylvania, Center for Mental Health Policy and Services Research.
The researchers concluded: "More study of the factors associated with this decline is needed." Salzer and colleagues published their study in Psychiatric Services (State psychiatric hospital census after the 1999 Olmstead Decision: evidence of decelerating deinstitutionalization. Psychiatric Services, 2006;57(10):1501-4). Also in 11/13/06 Mental Health Wkly. Dig. 183, 2006 WLNR 19492161.
COMMENT: This may be coincidence. Or perhaps the Olmstead case prompted state officials to regroup and take some time to consider the effect of Olmstead. Another possibility is that states began to construct Olmstead plans at the departmental level, with a consequent reduction in top-directed placement efforts at the facility level.
I would speculate that these statistics have little practical significance. However, I would be concerned that it might be interpreted by advocates or administrators to have deep meaning, meaning beyond the merits of the findings.
The researchers concluded: "More study of the factors associated with this decline is needed." Salzer and colleagues published their study in Psychiatric Services (State psychiatric hospital census after the 1999 Olmstead Decision: evidence of decelerating deinstitutionalization. Psychiatric Services, 2006;57(10):1501-4). Also in 11/13/06 Mental Health Wkly. Dig. 183, 2006 WLNR 19492161.
COMMENT: This may be coincidence. Or perhaps the Olmstead case prompted state officials to regroup and take some time to consider the effect of Olmstead. Another possibility is that states began to construct Olmstead plans at the departmental level, with a consequent reduction in top-directed placement efforts at the facility level.
I would speculate that these statistics have little practical significance. However, I would be concerned that it might be interpreted by advocates or administrators to have deep meaning, meaning beyond the merits of the findings.
Sunday, November 12, 2006
TURNER / MCAT / LEARNING DISABILITIES / TESTING / CLASS ACTION
TURNER / MCAT / LEARNING DISABILITIES / TESTING / CLASS ACTION
When is the ADA irrelevant (or a bad authority) to a testing discrimination claim? In California, at least in this case. Here, state law shines, and the ADA runs a dismal second.
In an illustration of how one can read the same texts, and see its meaning differently, those involved in the Turner case issued contrasting descriptions of it. My reading is yet a third view (see my thoughts at paragraph 7 below).
1. Oakland-based Disability Rights Advocates, long known for significant landmark litigation, won a decision in a recent class action that thee Medical School Admissions Test (MCAT) does not comply with state civil rights laws; the MCAT accommodations process is too stringent. The exam's administrator was ordered to revamp its accommodation review procedure. DRA has stated that, because the MCAT is similar to other standardized tests, such as the SAT and Law School Admission Test (LSAT), "the decision is expected to have a ripple effect across the testing industry." DRA Release, http://www.dralegal.org/cases/education_testing/turner_v_aamc.php.
2. The Association of American Medical College issued a response to the decision. AAMC disagreed with the decision but minimized its scope, stating that the court "merely decided whether California's two general disability laws applied to the MCAT." AAMC "believes that the AMericans with Disabilities Act (ADA) provides an appropriate national standard for evaluating accommodation requests on national tests such as the MCAT examination." AAMC Release, http://www.aamc.org/newsroom/pressrel/2006/061103.htm.
3. The case involved plaintiffs with learning disabilities and or ADHD and was filed under STATE LAW only. There was NO CLAIM under the Americans with DIsabilities Act. This choice of state law was key to the plaintiffs' victory. State law requires "full and equal access." The state Superior Court found -- and apparently both sides in the case agree -- that state law's standard is LESS STRINGENT than that under the federal ADA.
4. AAMC applies the federal ADA standard on who is disabled. Since state law establishes an easier-to-satisfy test, one might fail to obtain accommodations under the ADA but win them under California law. As the court put it, "AAMC admits that there are individuals in California who might be given testing accommodations if the Unruh Act or Disabled Persons Act standards governed their requests for testing accommodations, but who would be denied such accommodations if the ADA standards governed."
5. The court did not rule on the individual plaintiff's claims, and made it clear it would not address the indvidual claims of class members. "The Court will not retain jurisdiction to act as a centralized administrative body for reviewing how the AAMC handles individual applications."
6. DRA appears to have done a masterful job in educating the court on disabilities generally, and on learning disabilities in particular. The record was full and complete. This sort of presentation is a model for similar cases.
7. MY THOUGHTS. I would expect this case to a) encourage other filings under state laws which may be similar to California's, b) have little effect on federal ADA litigation, but c) encourage efforts to amend or clarify the ADA's standard. Also, the education provided the court on testing and learning disabilities can be a model for others in similar efforts.
For text of decision, see the PDF/TEXT links in the DRA release above at Par. 1.
When is the ADA irrelevant (or a bad authority) to a testing discrimination claim? In California, at least in this case. Here, state law shines, and the ADA runs a dismal second.
In an illustration of how one can read the same texts, and see its meaning differently, those involved in the Turner case issued contrasting descriptions of it. My reading is yet a third view (see my thoughts at paragraph 7 below).
1. Oakland-based Disability Rights Advocates, long known for significant landmark litigation, won a decision in a recent class action that thee Medical School Admissions Test (MCAT) does not comply with state civil rights laws; the MCAT accommodations process is too stringent. The exam's administrator was ordered to revamp its accommodation review procedure. DRA has stated that, because the MCAT is similar to other standardized tests, such as the SAT and Law School Admission Test (LSAT), "the decision is expected to have a ripple effect across the testing industry." DRA Release, http://www.dralegal.org/cases/education_testing/turner_v_aamc.php.
2. The Association of American Medical College issued a response to the decision. AAMC disagreed with the decision but minimized its scope, stating that the court "merely decided whether California's two general disability laws applied to the MCAT." AAMC "believes that the AMericans with Disabilities Act (ADA) provides an appropriate national standard for evaluating accommodation requests on national tests such as the MCAT examination." AAMC Release, http://www.aamc.org/newsroom/pressrel/2006/061103.htm.
3. The case involved plaintiffs with learning disabilities and or ADHD and was filed under STATE LAW only. There was NO CLAIM under the Americans with DIsabilities Act. This choice of state law was key to the plaintiffs' victory. State law requires "full and equal access." The state Superior Court found -- and apparently both sides in the case agree -- that state law's standard is LESS STRINGENT than that under the federal ADA.
4. AAMC applies the federal ADA standard on who is disabled. Since state law establishes an easier-to-satisfy test, one might fail to obtain accommodations under the ADA but win them under California law. As the court put it, "AAMC admits that there are individuals in California who might be given testing accommodations if the Unruh Act or Disabled Persons Act standards governed their requests for testing accommodations, but who would be denied such accommodations if the ADA standards governed."
5. The court did not rule on the individual plaintiff's claims, and made it clear it would not address the indvidual claims of class members. "The Court will not retain jurisdiction to act as a centralized administrative body for reviewing how the AAMC handles individual applications."
6. DRA appears to have done a masterful job in educating the court on disabilities generally, and on learning disabilities in particular. The record was full and complete. This sort of presentation is a model for similar cases.
7. MY THOUGHTS. I would expect this case to a) encourage other filings under state laws which may be similar to California's, b) have little effect on federal ADA litigation, but c) encourage efforts to amend or clarify the ADA's standard. Also, the education provided the court on testing and learning disabilities can be a model for others in similar efforts.
For text of decision, see the PDF/TEXT links in the DRA release above at Par. 1.
Saturday, November 11, 2006
Disability Law, the ADA and the Courts
Welcome. This blog has multiple purposes:
1. I plan to note recent decisions under the Americans with Disabilities Act (ADA) and related laws, and constitutional provisions, to keep advocates and individuals informed and up on the news.
2. I'll comment on these and other developments.
3. I will communicate and share news and needs from readers, as well as reader's comments on disability law issues.
4. This will be an entree to a new list of disability resources I am creating.
Come say hi!
David
david@ferleger.com
http://www.ferleger.com
1. I plan to note recent decisions under the Americans with Disabilities Act (ADA) and related laws, and constitutional provisions, to keep advocates and individuals informed and up on the news.
2. I'll comment on these and other developments.
3. I will communicate and share news and needs from readers, as well as reader's comments on disability law issues.
4. This will be an entree to a new list of disability resources I am creating.
Come say hi!
David
david@ferleger.com
http://www.ferleger.com
Subscribe to:
Posts (Atom)