Disability Law, the ADA and the Courts

Constitutional Right to Community Services - Olmstead and the Constitution

2010-04-20T10:31:00.003-05:00

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I apologize for the lack of formatting. This is a law review article, and this pasted-in version came in without the footnotes, or spacing. Email me david@ferleger.com for a PDF version.

FYI, in case it has any interest to you or others you know, I am attaching galleys of my most recent law review article --- about to be issued in May 2010, 26 Ga. St. U. L. Rev __ (2010), a symposium issue on 10th Anniversary of the US Sup Ct decision in Olmstead v. JL.

In addition, it is a thorough review of constitutional Due Process and Equal Protection issues and background, right to treatment, right to community services, and existing commentary and critique of Olmstead, positive and negative.

THE CONSTITUTIONAL RIGHT TO
COMMUNITY SERVICES
David Ferleger∗

INTRODUCTION
“[I]nstitutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.”
“Pennhurst provides confinement and isolation, the antithesis of habilitation.”
“Institutions, by their very structure a closed and segregated society founded on obsolete custodial models[,] can rarely normalize and habilitate the mentally retarded citizen to the extent of community programs created and modeled upon the normalization and developmental approach components of habilitation.”
Twenty-one years before the Supreme Court in Olmstead v. L.C. (Olmstead) held that unjustified institutionalization is discrimination forbidden by the Americans with Disabilities Act, a court issued the landmark decision that all institutionalization of people with mental retardation violates the United States Constitution and that states have an obligation to provide community services to the institutionalized. The first quotation above is from Olmstead in 1999 and the second two are from Halderman v. Pennhurst State School and Hospital (Pennhurst) in 1978.
United States District Judge Raymond J. Broderick, author of Pennhurst, was a conservative Republican jurist and former Lieutenant Governor of Pennsylvania. He was not a judicial activist. Those words did not come easily but after thoughtful consideration. He was stirred in Pennhurst by the same considerations which shaped Congress’ findings in the Americans with Disabilities Act of 1990 on segregation and discrimination against people with disabilities. Pennhurst foreshadowed the Supreme Court’s identification in Olmstead v. L.C., of the profound negative impact of institutions on those confined and its holding that the ADA proscribes “[u]njustified isolation of individuals with disabilities.”
With a satisfied grin, whether in public or private, Judge Broderick often observed that his decision recognizing the constitutional right to community services was never reversed. Indeed, while the 1978 decision precipitated two Supreme Court decisions on other grounds, and a myriad of rulings on related issues, the constitutional holdings were not questioned on appeal or certiorari. The commitment to alternatives to institutions, premised on constitutional rights, espoused in Pennhurst was the groundwork for much other litigation, became support for various states’ policies, and a rallying point for institutional residents, professionals in the field, and advocates.
It was not until Olmstead, however, that the Supreme Court weighed in on the institutionalization issue and this time, unlike Pennhurst, there was a federal statutory ground for the decision. The emergence of the “integration mandate” of the ADA, and the Supreme Court’s emphatic recognition in Olmstead of the benefits of community services for people who are institutionalized has diminished discussion of the constitutional inquiries which are the focus of this article.
This is a moment for a “necessary and overdue” return to constitutional principles as a means both to support the integration mandate and to surmount some of the weaknesses of a purely ADA and Olmstead approach.
I propose that involuntary institutionalization of people with intellectual disabilities is unconstitutional on due process and equal protection grounds. Due process precludes needless curtailment of personal liberty. Equal protection forbids discrimination against such individuals unless necessitated by a compelling state interest, an interest absent in non-criminal institutionalization. On groundwork language in Olmstead, I suggest that the narrow class of involuntarily institutionalized individuals with intellectual disabilities is a suspect or quasi-suspect class under the Equal Protection Clause.
Restoration of constitutional rights to the conversation cures some of the deficits in the Olmstead statutory construct. In addition, the judicial armamentarium available to enforce constitutional rights makes techniques available to enforce a broader and more powerful responsibility on the part of the state to eliminate unnecessary institutionalization through the expansion of quality community services.
In this article, I briefly outline the Olmstead decision and then discuss its limitations. I assume some familiarity with the history of institutional and community care, and the litigation which preceded Olmstead.
I. THE AMERICANS WITH DISABILITIES ACT
A. Olmstead: A “Qualified Yes” to Community Services
In Olmstead v. L.C., the United States Supreme Court held that Title II of the Americans with Disabilities Act of 1990 (ADA) requires the placement of persons with mental disabilities in community settings, rather than in institutions, when: (1) the state’s treatment professionals determine that such a placement is appropriate, (2) the transfer is not opposed by the individual, and (3) the placement can be reasonably accommodated given the resources available to the state and its obligation to provide for the needs of others with mental disabilities. A five justice majority held that a failure to provide care for individuals with mental disabilities in the most integrated setting appropriate to their needs may be viewed as discrimination, in violation of the ADA, unless the state or other public entity can demonstrate an inability to provide less restrictive care without “fundamentally alter[ing]” the nature of its programs.
Congress passed the Americans with Disabilities Act in 1990 42 U.S.C. §§ 12101–12213. Designed as a comprehensive statutory scheme, the ADA seeks to eliminate disability discrimination on three fronts: employment (Title I, 42 U.S.C. §§ 12111–12117); public services offered by public agencies (Title II, 42 U.S.C. §§ 12131–12165); and public services and accommodations offered by private entities (Title III, 42 U.S.C. §§ 12161–12189).
Prior to the ADA, Section 504 of the Rehabilitation Act of 1973 was the major statutory ground for challenge to discrimination against people with disabilities. Section 504 provides relief when a program or service receives federal funds and, thus, affects residents of virtually all public institutions. Section 504 had been on the books for years but it had proven of limited utility in affecting deinstitutionalization, despite a regulatory integration requirement.
The ADA differs from the Rehabilitation Act and other earlier statutes in that it explicitly recognizes “institutionalization” and “segregation” as forms of discrimination against disabled individuals. Also, the ADA required adoption of implementing regulations. There are two regulations most relevant to the Olmstead decision; together they comprise the “integration mandate” of the ADA. The first is the integration regulation, which states: “A public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” The second is the reasonable modifications regulation, which provides: “A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate conclusively that making the modifications would fundamentally alter the nature of the service, program, or activity.”
Delivering the Court’s Olmstead decision, Justice Ginsburg framed the issue as “whether the [ADA’s] proscription of discrimination may require placement of persons with mental disabilities in community settings rather then in institutions.” She expressed the Court’s answer conspicuously as “a qualified yes.”
While the majority concluded that unnecessary institutionalization violated the ADA, Justice Ginsburg spoke for a plurality of four. Justices O’Connor, Souter and Breyer joined her opinion as to the fundamental alteration defense. Justice Stevens would have affirmed the judgment of the court of appeals. Justice Kennedy, concurring separately, was concerned that the decision might pressure the states into “attempting compliance on the cheap, placing marginal patients into integrated settings devoid of the services and attention necessary for their condition.”
The Court based its decision that unnecessary institutionalization is a form of discrimination on two rationales. First, placing people with disabilities who are capable of living in the community in institutions perpetuates the stereotypes that such individuals are unworthy or incapable of participating in community life. Second, confinement in an institution deprives the individual of participation in a broad spectrum of important activities, such as “family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” The Court recognized that institutionalization implies discrimination: “[T]o receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice.”
Olmstead was heralded as a potentially “revolutionary” advance for people with disabilities. Although other courts had previously found the same protections in the ADA, Olmstead’s conclusion that Title II of the ADA forbids “[u]njustified isolation” of people with disabilities was a defining moment.
B. Olmstead’s Shortcomings
Legal advocates and scholars are perhaps prone to overstate the impact of particular cases on the world generally, as well as on the law. That has been Olmstead’s fortune. While one might have expected that the Olmstead decision would have accelerated community placement, this has not been the case. In addition, the decision is fraught with deficiencies which thwart achievement of the right articulated by the Court, that is, to the right to be free from unjustified isolation.
1. Movement from Institutions Has Slowed
Since the Olmstead decision, there has been a slowing of the movement of residents from both public and private institutions, according to an analysis marking the case’s tenth anniversary. Between June 30, 1990 and June 30, 1999, public institution populations decreased by about 30,300 residents or 38.2%. Private institution residents decreased by about 13,700 persons or about 28.6%. These numerical and rate decreases were actually greater for public institutions than those that followed Olmstead, which was decided at the end of this ten year period. “Between June 30, 1999 and June 30, 2008, public institution populations decreased by about 14,100 people, or 28.6%, and private institution populations decreased by about 10,400 people, or 30.5%.” “Although there was a modestly increased rate of private institution depopulation following Olmstead, among public and private institutions combined, the rates of depopulation were slightly lower after [Olmstead] than before (36.9% and 29.4%, respectively).”
Why did this occur? Statistically, it was “because of the slowing rate within public institutions” “driven by low rates of deinstitutionalization in relatively few states.” The states slowest in community movement are increasing the proportion of public institution residents which they house. In 1990, the 10 slowest states had 34% of the total public institution residents. At the time of the Olmstead decision, they had 43%, and by 2008, they had 52%. Since Olmstead, these 10 states decreased their total public institution populations by about 15% as compared with a 42% reduction in the other states.
While these numbers cannot demonstrate an Olmstead cause-and-effect, the researchers did find it “[more] evident . . . that the effects of Olmstead in the future, if any, will depend on the internal or external motivation of a relatively small number of states to operate in more consistent compliance with it.” This raises the question of whether Olmstead alone is sufficient to provide a significant piece of that motivation.
2. Olmstead Suffers from Internal Deficiencies
Apart from its lack of constitutional teeth, Olmstead suffers from several internal deficiencies which weaken the force of its integration mandate. These include a government-friendly fundamental alteration defense, an effectively non-accountable “working plan” option to demonstrate compliance.
a. “Fundamental Alteration”
The obligation of public entities to make reasonable modifications of their policies, practices and procedures to avoid the discrimination of unjustified segregation is limited by the “fundamental alteration” defense. The entity is relieved of its obligation if “the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” Courts must consider whether “in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with . . . disabilities.” Additional cost, however, alone does not constitute a fundamental alteration. The analysis is not limited to comparing institutional to community cost; if that were the case, plaintiffs would generally always prevail.
The fundamental alteration defense may result in bizarre acceptance of discrimination to the detriment of individuals deeply in need. In Townsend v. Quasim, it was contended that the state’s use of community-based nursing services to provide essential long term care to some disabled Medicaid recipients but not others violates Title II of the ADA. The plaintiff, a man in his eighties with medical and physical disabilities, was told by the Washington State’s Department of Social and Health Services that, based on new definitions of services, he would have to move to a nursing home or lose Medicaid benefits which provided him with community care. The Ninth Circuit agreed that the state’s action was discriminatory but declined to provide relief, remanding because providing community services “would fundamentally alter” the State’s Medicaid programs.
A fundamental alteration might involve program integrity (modification of the fundamental nature of the program, for example) or magnitude (changes in the extent or cost of the system). “No clear statutory limits give guidance, and in the end any limits, however vague, may have to come from courts.” Olmstead’s impact is “diluted by the Court’s failure to provide meaningful parameters for the defense” of fundamental alteration.
b. “Effectively Working Plan”
Justice Ginsburg’s plurality gives states “leeway” to adopt a plan, apparently in the context of a fundamental alteration defense:
To maintain a range of facilities and to administer services with an even hand, the State must have more leeway than the courts below understood the fundamental-alteration defense to allow. If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State’s endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met.
Each piece of this operational test—a “comprehensive, effectively working plan,” a waiting list moving “at a reasonable pace not controlled” by a State’s effort to keep institutions filled —raises difficult interpretive questions. It is a challenge to put meaning into these terms. “The standards established under the majority decision for measuring when statutory violations under the ADA occur in the context of health services for persons with disabilities are, in fact, quite murky; furthermore, the powers granted to States to determine the scope of their own obligations, as well as the affirmative defenses they are accorded, are extensive.”
Of course, any test of compliance would raise definitional and interpretive questions. Here, however, where the State’s “leeway” allows it to put its thumb on the scale, one is hard put to expect courts to require meaty and prompt implementation of Olmstead plans.
All changes to complex systems, when done well, necessitate careful planning. Planning will typically include analysis, development of a mission, goals and objectives, expected outcomes, tasks and timelines, deadlines, identification of persons responsible, quality assurance and accountability mechanisms, and evaluation. Consequently, a self-adjusting system will be in place, with sufficient feedback and flexibility to adapt to changing conditions. A plan for movement from institutions would be expected to encompass these elements.
Enforcement of civil rights, especially class-wide enforcement often requires a change of complex systems. Courts, however, look to results. Judicial orders require compliance. An unimplemented plan is insufficient to satisfy the court that its involvement must come to an end.
The plurality opinion in Olmstead invites a “plan” which itself would satisfy the integration mandate announced in the decision. Devoid of mention of compliance or enforcement, the Olmstead plan has such scant required content that it has been characterized as a “get out of jail free” card for states otherwise in violation of the decision’s integration mandate.”
Some courts have held that a mere history of deinstitutionalization, even absent stated goals or guidelines, satisfies Olmstead, while others have accepted as satisfactory mere confirmation that a plan exists. Even a “successful record” and a plan “to continue and increase” unspecific programs were held sufficient.
Courts are certainly limited in ability and resources to shepherd all the details of compliance, but they are competent to ensure compliance, even in the most complex situations. A case in point is United States v. State of Connecticut in which Senior U.S. District Judge Ellen Bree Burns found the state in contempt of a consent decree intended to reform a large mental retardation institution, Southbury Training School (STS). The court found deficiencies in such areas as medical care, psychiatric services, psychological programs, physical therapy, injuries, and protection from harm, concluding that “STS’s systemic flaws have caused many residents to suffer grave harm, and, in several instances, death.” The court appointed a special master to review “all aspects” of STS’s care, “determine the changes needed,” “formulate specific methods to implement the required changes,” and help “effectuate those changes.” The special master actively oversaw a detailed remedial plan, holding hearings where necessary, and after nine years, the state achieved compliance at the institution and was purged of contempt.
The Olmstead “working plan” option is problematic. It does not describe the minimum elements of such a plan and does not require timely outcomes and compliance. Most importantly, its emphasis on states’ “leeway” discourages the lower courts from mandating and enforcing full-bodied plans, and ensuring that desired outcomes are achieved before the court bows out of involvement.
c. Absence of Guidance on Standard of Care
The Olmstead Court stated in footnote 14, “We do not in this opinion hold that the ADA imposes on the States a ‘standard of care’ for whatever medical services they render, or that the ADA requires States to ‘provide a certain level of benefits to individuals with disabilities.” Justice Kennedy’s concurrence is stronger. He concluded that, given states’ need to weigh their priorities, “[i]t follows that a State may not be forced to create a community-treatment program where none exists.” He did not, however, explain how one distinguishes between “creation” and “expansion” of community programs.
The multiplicity of opinions and the weak language cited above opens the possibility that Olmstead’s reach may be cut short in future rulings. The language does not appear to support even the minimally adequate level of habilitation which Youngberg v. Romeo held is required.
d. Silence on the Respective Roles of the Legislature and Courts
Constrained perhaps by internal divisions, the Court was muted in its endorsement of vigorous efforts to move to a fully community-oriented system. Institutional settings may be “terminated” but not for people “unable to handle or benefit” thereby. Institutions may be “phased out” so long as this does not place “patients in need of close care at risk.” These qualifications meet the concerns expressed in Justice Kennedy’s opinion.
This limited closure mandate appears calculated to appeal both to those who disfavor institutions as well as to those concerned that some residents may not be well served in the community. While no one would intentionally adopt a “phase out” effort, or place even a single person into the community, if it would predictably cause harm, analysis of risk and benefit is a complex calculus in human services. Missing from the Court’s brief “yes, but . . . “ discussion is the nature of the balance in this sensitive arena between the legislative policy-setting role and the judicial role in the definition and enforcement of rights. Also missing is the question of what weight to give the constitutional liberty interests of the individual and his or her desires, or that of parents or guardians. One wishes for clearer guidance from the Court on these issues.
II. THE CONSTITUTION
A. The Parameters of a Constitutional Right to Community Services
As recently as 2000, a scholar in the field correctly characterized the constitutional dimensions of a right to community treatment as “a mostly-moribund body of law.” With the Olmstead statutory holding, constitutional analysis took a backseat to examination of the extent to which the ADA might afford relief to the institutionalized. As I explain below, a comprehensive legal theory embodying both constitutional and statutory rights is more likely to serve private and public needs than a theory including just one or the other.
I contend that institutionalization of individuals with intellectual disabilities, without their consent, violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution where the person could “handle and benefit from” an end to confinement and the provision of habilitation and supports in a community placement. In addition, long term confinement, without effective periodic review of the justification for that confinement, is a due process violation.
For these individuals, institutionalization, as lived out in our times, is often a lifetime proposition. Institutional populations are aging on account of very low admissions and deaths. The few admissions since adoption in the 1970s of right to education laws and expansion of community services since that time have resulted in skewing the institutional census toward higher age groups. The institutions’ age groupings “reflect the aging of the US population but in an exaggerated way. E.g., in 1977, 22% were 40 years and older; 1987=33.3%; 1998=57.1%; 2006=72.1%.” By comparison to the institutionalized 72.1%, 45% of the United States population in 2006 were 40 years and older. Residence in an institution for people with intellectual disabilities often lasts decades and can be commitment for the life of the individual.
The Supreme Court has long recognized that civil confinement entails a “massive curtailment of liberty.” The only permissible justifications for committing the mentally disabled are: (1) danger to the individual, (2) danger to others, and (3) need for treatment. The Court enunciated the following principle in Jackson v. Indiana, striking down a state law that permitted the state to confine indefinitely a mentally deficient deaf mute adjudged incompetent to stand trial: “At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.”
Jackson’s “nature, duration and purpose” criteria have become the touchstone (often unacknowledged) for the development of procedural and substantive due process, and for equal protection safeguards of the rights of the institutionalized. It is to those rights that I now turn.
B. Due Process
1. Procedural Due Process
A procedural due process violation occurs when one is deprived of a significant interest protected under the Constitution without appropriate procedures to protect against unfairness and error. This interest can arise either from the Constitution itself or from state law. Post-Olmstead decisions have not generally required periodic review in a formal sense. The model has been to require the institution to review and to “consider” each resident for possible placement.
A person confined in an institution who protests that confinement is entitled to a meaningful hearing—a periodic review—on the person’s continuing need for institutionalization. The need for commitment must be reviewed periodically by a neutral fact finder. In concluding that a woman confined for decades at a state institution for people with mental retardation had a procedural due process right to such reviews, the Third Circuit noted, “[t]he hearing tribunal must have the authority to afford relief.” Other courts agree. The review must not be pro forma and must not be biased toward the status quo. It has been held that, while Due Process does not require a judicial fact finder for periodic review of commitment of persons with intellectual disabilities, Equal Protection requires judicial periodic review of continuing need for institutionalization if people with mental illness receive such review.
2. Substantive Due Process
Until its indirect evisceration in the Supreme Court’s decisions in Youngberg v. Romeo (on Due Process) and Pennhurst State School and Hospital v. Halderman (on the Developmentally Disabled Assistance and Bill of Rights Act), “the concept of the least restrictive alternative—the idea that restrictivity of confinement can and must be calibrated and evaluated—ha[s] remained one of the core staples of mental disability law.” Youngberg focused on institutional treatment rights, and Pennhurst rejected a statutory community services right. There followed a line of cases in the mid-to-late 1980s rejecting the “least restrictive” basis for community services.
What has survived the disfavor of the least restrictive analysis, however, is robust law on other grounds. Two conceptual strands form the basis for the substantive due process right to treatment for the institutionalized. Although they are intertwined, they each have been considered to provide independent support for the right. The quid pro quo approach considers that the massive curtailment of liberty occasioned by involuntary civil institutionalization, for which criminal justice procedural safeguards are absent, cannot be justified unless the state gives to the institutionalized person something in exchange for the loss of liberty. That “something” is habilitation. The parens patriae approach is that due process is violated when the state fails to provide treatment to a person dependent on the state. There is no need for detailed analysis here of whether the right to treatment arises under the quid pro quo or the parens patriae theory.
The quid pro quo position finds support in the Supreme Court’s ruling in O’Connor v. Donaldson that “a State cannot constitutionally confine without more a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” Absent treatment (or whatever the Court meant by “more”), the deprivation of liberty is unjustified. Courts have applied this rationale to confinement of people with retardation.
Partaking of the parens patriae interest is the holding of Youngberg v. Romeo, and its progeny, that due process requires that an institution provide its residents with a minimal level of training or “habilitation.” In Youngberg, the Supreme Court concluded, first, that “[t]he mere fact that Romeo has been committed under proper procedures does not deprive him of all substantive liberty interests under the Fourteenth Amendment.” There are additional liberty interests and they require the State to provide minimally adequate or reasonable training to ensure safety and freedom from undue restraint.” The treatment interests are not “absolute.” Whether the constitutional rights have been violated must be determined by “balancing his liberty interests against the relevant state interests.”
These constitutional requirements are satisfied when there has been a “professional judgment” in determining what services and care should be provided to residents of state-run institutions. A violation of the professional judgment requirement may be shown in at least two ways:
a. Where no professional judgment has been exercised (including situations where a facility administrator ignores recommendations of professionals), and
b. Where the judgment made by a qualified professional was “such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.”
The issue is “not whether the optimal course of treatment as determined by some experts was being followed” but whether professional judgment was exercised. Where professional judgment establishes that provision of minimally adequate treatment requires community services, an institutionalized person’s substantive due process rights are violated. Youngberg did not address institutional judgments favoring placement.
Youngberg requires balancing an institutionalized person’s liberty interests against the “relevant state interests”, which the Court identified not as budgetary or administrative but rather as the state’s interest in ensuring the exercise of professional judgment.
For many individuals with intellectual disabilities in public institutions, the judgment exercised by the institution’s professionals themselves is that the confinement is not necessary and that community services would be beneficial. Therefore, not surprisingly, Youngberg has been extended to embrace a due process right to community services.
On the other hand, some courts (mostly before Olmstead) have declared that residents of state institutions for people with mental retardation “have no right to community placement.” Virtually in the same breath, however, “no-right” courts have acknowledged that state decisions which deprive individuals of liberty, which result in their institutionalization, are subject to scrutiny under Youngberg and due process principles; confinement must be “rational.” We see in these decisions a profound judicial disquiet with a constitutional fabric which would uphold use of governmental power to involuntarily confine people when it is acknowledged that confinement is not justified by considerations of adequate care and treatment. In considering the Youngberg balance between a person’s liberty interests and the state’s interests, Olmstead’s recognition that the ADA forbids unjustified institutionalization must be placed in the balance.
C. Equal Protection
1. Introduction
The Equal Protection Clause of the Fourteenth Amendment requires that similarly situated individuals should be treated similarly. When state law or practice do not employ suspect classifications or impinge on fundamental rights, they are upheld when they are rationally related to a legitimate public purpose.
When the government acts on the basis of a suspect classification or affecting a fundamental interest, the traditional rational basis standard is abandoned in favor of what has been called “strict scrutiny.” Strict scrutiny admits of little or no presumption of validity of the challenged state action.
An intermediate level of scrutiny is afforded classifications involving “quasi-suspect” classes such as gender and illegitimacy. To withstand constitutional challenge, a classification disfavoring a quasi-suspect class must “serve important governmental objectives and must be substantially related to achievement of those objectives.”
I advance two arguments here. First, I propose that forcible and unnecessary institutionalization of people with intellectual disabilities is irrational and therefore unconstitutional under the traditional equal protection framework. Second, I conclude that a class definition for equal protection purposes narrower than all “the disabled” is subject to at least the intermediate degree of scrutiny. Rather than define the protected group as “the disabled” generically, one would focus on those among the disabled who are maximally deprived of liberty and who are a close fit to the “special condition” class described in footnote 4 of United States v. Carolene Products, and its “strict scrutiny” progeny. This approach would bring to bear the protections of the suspect or quasi-suspect class analysis on the discrimination inherent in institutionalization.
2. Needless Institutionalization Is Irrational
Freedom from segregation has long been recognized as an interest protected by the Equal Protection Clause. Where a state forcibly excludes, separates and segregates people with mental retardation from the rest of society, and where equivalent or superior care (and quality of life) is available in a non-segregated setting, a serious question arises whether such action is rationally related to a legitimate state interest.
Classifications impinging on fundamental rights have been invalidated as irrational. One of the rare instances in which the Supreme Court held that discrimination (not on the basis of gender or race) was irrational involved community living for individuals with retardation. Finding that a city’s zoning exclusion of a community home was irrational, the Court found a violation of equal protection. Similarly, it is not rational, or logical or humane, to compel institutional segregation where it is not necessary for the individual. One can demonstrate that, for each person in the institution, there is a “twin” living successfully in the community with equivalent disabilities. The institution for these individuals is definitively “separate but not equal.”
3. Institutionalized Individuals with Intellectual Disabilities Constitute a Quasi-suspect Class
The Supreme Court has not yet considered whether people with intellectual disabilities who are institutionalized constitute a suspect or quasi-suspect class under the Equal Protection Clause. Twice, the Court has dodged the issue; both occasions occurred after passage of the ADA. Perhaps the Court recognizes that post-ADA there is more to be said on the issue.
The majority opinion in Olmstead evidences a leaning toward the position I espouse here. Referencing the “unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life,” the Court cited two cases, one on racial classification and one on gender discrimination: Allen v. Wright and Los Angeles Dept. of Water and Power v. Manhart. Neither was an equal protection case; however, the comparison of the irrational stereotyping and stigmatization of institutionalized people with disabilities to treatment of race and gender discrimination is telling.
A number of commentators have argued with force that the ADA itself, with its Congressional findings echoing the well-known criteria in footnote four of United States v. Carolene Products, compels courts to employ a “strict scrutiny” or “compelling state interest” test. Such an argument would be reasonable. It is certainly within easy reach to find that, because “the mentally retarded still suffer from some discrimination that is not related to actual disabilities,” state action “must be reviewed under a level of scrutiny higher than the rational basis test.” For example, Michael Perlin in the immediate aftermath of Olmstead, urged that an ADA violation is per se a Fourteenth Amendment violation:
The law’s invocation of the full “sweep of congressional authority, including the power to enforce the Fourteenth Amendment” simply means that any violation of the ADA must be read in the same light as a violation of the Equal Protection Clause of the Constitution, guaranteeing, for the first time, that this core constitutional protection will finally be made available to persons with disabilities.
This view won wide support in the literature before the Supreme Court’s 2001 decision to the contrary in the Garrett case, discussed below.
There is no precedential obstacle to a conclusion that involuntarily institutionalized individuals with intellectual disabilities (a class narrower than simply “the disabled”) are a quasi-suspect class under the Equal Protection Clause, and that their confinement must be subject to heightened scrutiny. Where that confinement is unnecessary, and the person could benefit from community services, institutionalization – to use the test for analysis of quasi-suspect classifications – does not “serve important governmental objectives and [is not] substantially related to achievement of those objectives.”
In Board of Trustees of University of Alabama v. Garrett, a damages case by disabled state employees, the Court held that the Eleventh Amendment sovereign immunity protects the state from damages liability under Title 1 of the ADA. Relying on Cleburne v. Cleburne Living Center, Inc., the Court concluded that “the disabled” are not a quasi-suspect class under the Fourteenth Amendment. The petitioners in Garrett were a woman with breast cancer and a man with asthma. Cleburne’s rejection of a quasi-suspect class approach for “the large and amorphous class of the mentally retarded” was appealing to the Supreme Court in Garrett. The concern was that labeling the disabled a quasi-suspect class might support similar labeling of such generic groups as “the aging, the disabled, the mentally ill, and the infirm.” Garrett, 531 U.S. 356, 266, quoting Cleburne, 473 U.S. at 445–56.
Cleburne, however, did not simply reject the zoning rule at issue as if it were an irrational commercial regulation. The scrutiny was more intense than that under the traditional rational basis test. As Judge Posner in dissent observed in a case involving zoning regulation and churches, “But one has only to read a little further in the Cleburne opinion to realize that the Court was not treating the zoning discrimination at issue there as it would have treated a discrimination in the taxation of railroads or the zoning of bowling alleys.” Judge Posner wisely urges a deeper reading of the case:
We should follow what the Supreme Court does and not just what it says it is doing. The Court rejects a “sliding scale” approach to equal protection in words but occasionally accepts it in deeds. Cleburne instantiates though it does not articulate the proposition that discrimination against sensitive uses is to be given more careful, realistic, skeptical scrutiny by the courts than discrimination against purely commercial activities. Romer v. Evans, 517 U.S. 620, 634–35, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996); cf. Lawrence v. Texas, supra, 123 S.Ct. at 2482.
Indeed, a separate opinion in Cleburne joined by three of the Justices points out that the majority in fact employs, at the least, a “second order rational basis review,” not the traditional deferential test:
The Court holds the ordinance invalid on rational-basis grounds and disclaims that anything special, in the form of heightened scrutiny, is taking place. Yet Cleburne’s ordinance surely would be valid under the traditional rational-basis test applicable to economic and commercial regulation. In my view, it is important to articulate, as the Court does not, the facts and principles that justify subjecting this zoning ordinance to the searching review-the heightened scrutiny-that actually leads to its invalidation.... [T]he Court does not label its handiwork heightened scrutiny, and perhaps the method employed must hereafter be called ‘second order’ rational-basis review rather than ‘heightened scrutiny.’ But however labeled, the rational-basis test invoked today is most assuredly not the rational-basis test of Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955), Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959), and their progeny.
A proper and Cleburne-Garrett consistent rule would define as a quasi-suspect (if not suspect) class those who are institutionalized. These are individuals deprived of liberty, excluded from the community, and recognized as deserving of special protection both under general due process principles and the ADA’s integration mandate. This cabined definition answers Cleburne’s slippery slope concern that those in the general populace like the aging and infirm might be swept into a tight equal protection standard.
Cleburne’s disquiet with designating the amorphous class of “the disabled” a quasi-suspect or suspect class is warranted. “Although it is often expressed in medical or functional terms, “disability” is a social construct and therefore is assigned different meanings in different contexts.” For example, the 2000 United States Census uses a variety of definitions of disability, including sensory disability, physical disability, mental disability, self-care disability, “going-outside-the-home disability,” and employment disability. The ADA, the Fair Housing Act, the Rehabilitation Act, and laws distributing public benefits also have sui generis definitions of disability.
San Antonio Independent School District v. Rodriguez, the school financing case, finding no fundamental right to education and no suspect class, does not negate a right to treatment in the community. The Supreme Court made it quite clear in Rodriguez that, had there been an absolute deprivation of education, or had the class been defined in more explicit terms, the result could have been different. My argument is that institutionalization is close enough to an absolute deprivation, especially where it is shown that there is no necessity for the confinement. The limitations of the class definition proposed here render the discrimination fit for intense Fourteenth Amendment scrutiny.
4. Institutionalization Must Be Justified by a Compelling State Interest
Discriminatory institutionalization is prohibited by the Equal Protection Clause’s separate strand which subjects to searching judicial review state systems which systematically deprive individuals of fundamental rights. The Supreme Court has held that “any classification which serves to penalize the exercise of [a fundamental] right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.” There is no doubt that there is a constitutional right to be free from unjustified institutionalization.
In Tennessee v. Lane, holding that Title II of the ADA is a valid exercise under the Fourteenth Amendment as applied to cases implicating the fundamental right of access to the courts, the Supreme Court observed that Title II of the ADA was enacted “against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights” and found that Title II addresses the deprivation of certain “basic constitutional guarantees, infringements of which are subject to more searching judicial review. “ Among the examples cited are cases involving institutional deprivation of liberty. The Lane reasoning applies with equal force to institutionalization. It is not subject to question, therefore, that needless institutionalization of people with intellectual disabilities, as proscribed by Olmstead on statutory grounds, is an exercise of state power which constitutionally must be justified by a compelling state interest.
D. Subsidiary Questions
There are two subsidiary questions which are distinct from the thesis of this article but which are often enmeshed with community services litigation under the ADA and the Constitution. These questions are alive at the periphery of the central issues discussed above. They have substance. It is important to acknowledge them.
1. Does the Right to Community Services Protect People Not (Yet) Institutionalized?
This article highlights the constitutional rights of people in institutions. There are many other individuals who, living at home or elsewhere, are on the cusp of institutionalization. They may require services if institutionalization is to be avoided. Post-Olmstead, these individuals are protected by the statute and, I suggest, by the Constitution.
Courts have held that the integration mandate applies equally to individuals already institutionalized and “at risk” of institutionalization. One court reached this conclusion on account of the absence of language in the statute and regulations “suggest[ing] that a plaintiff must currently be institutionalized to bring a claim under the ADA or Rehabilitation Act.” The Tenth Circuit reasoned that the integration mandate “would be meaningless if plaintiffs were required to segregate themselves by entering an institution before they could challenge an allegedly discriminatory law or policy that threatens to force them into segregated isolation.” Olmstead’s proscription of “unjustified isolation” is consistent with this approach.
There is authority that neither due process nor equal protection principles protect individuals living at home from government budget cuts resulting in reduction of their services. However, with an analysis informed by Olmstead, and a finely-tuned emphasis on the factual “at risk” question, the result of similar litigation has appropriately been different.
The rationale is straightforward and persuasive: restriction of the claim to those already institutionalized would force community plaintiffs to “choose between staying in the community without any services or entering an institution in order to receive services.” One need not be at the institution’s door to be at risk. The fragility of one’s situation in the community is sufficient.
2. Does the Right to Community Services Protect People Who Are “Voluntarily” Institutionalized?
There is support in the case law for the notion that voluntariness in the context of institutionalization of people with intellectual disabilities is an illusory concept, and that therefore there is no basis for treating them differently from those involuntarily civilly committed. Residents of state mental retardation facilities have generally not consented to their institutionalization. As one court explained:
First, the plaintiffs who are residents of the Grafton state school have not, in most cases, voluntarily consented to their confinement in any meaningful sense of the word “voluntary.” North Dakota Century Code, Chapter 25-04, allows for the admission of mentally deficient persons upon the application of a parent or guardian without the consent of the person involved. The statute in no way makes the consent of the person concerned a condition of admittance. Further, in the case of plaintiffs who are severely retarded, informed consent is not even possible. And even in the case of the plaintiffs who are capable of giving informed consent to admission, it may be questioned whether such consent is voluntary in light of pressures from family and the high cost and unavailability of alternative care.
Cases which superficially take the opposite position, that voluntary submission to state custody does not trigger constitutional protections, concur: “Indeed, even commitments formally labeled as “voluntary” may arguably amount to de facto deprivations of liberty from their inception.”
A reasonable framework is that adopted under the ADA in a recent decision. “The ADA’s preference for integrated settings is not consistent with a procedure in which remaining at STS is the default option for residents. The defendants cannot establish compliance with the integration mandate by showing that class members never requested community placement.”
Neither the lack of a request for placement, not nominal voluntary status, should be determinative of whether a person in an institution is eligible to be provided community services.
E. The Benefits of Recognition of the Constitutional Right to Community Services
Recognition of the constitutional right to community services described in this article would provide an “Olmstead Plus” footing for analysis of the rights of the institutionalized. There would be a reduction in reliance on other statutes. The force inherent in enforcement of civil rights under the Constitution would augment the attention to detail found in the ADA statute and regulations. Certain defenses would evaporate or be diminished.
States often assert some variation of 11th Amendment sovereign immunity in response to claims for expansion of community services under the ADA. Regardless of their validity, a constitutional basis for community services eviscerates the sovereign immunity defense. For legislation enacted under Congress’ spending power, the remedy for violation is generally not a private right of action, but an action by the federal government to terminate the funds provided to the state.
Internal deficiencies in Olmstead would be mitigated. The fundamental alteration defense would have less traction in the face of assertion of constitutional rights. An “effectively working plan” would need to satisfy standards for protection of fundamental constitutional rights, not simply statutory rights. The absence of guidance on standard of care in Olmstead is a gap which may now be filled by Youngberg-based integration case law supplemented by Olmstead’s “handle and benefit from” community services On another deficiency, the lack of guidance on the future of institutional care, one may look to recent case law which establishes that each resident must at least be considered for placement.
CONCLUSION
Challenges to institutionalization are high profile for understandable reasons including, for example, curtailment of liberty, high cost of services, deprivation of rights, a history of mistreatment and lack of care, and intensity of public and judicial scrutiny.
In Olmstead, the Supreme Court accepted the Nation’s conclusion that community services are superior to institutional services Institutional administrators generally agree that, with appropriate support, their residents could be well served in the community. This was the case for Pennhurst (decided in 1978) and for Southbury Training School (decided 30 years later in 2008). In many ways, this diminishing group is a “Moses generation.” Only a small proportion of people with intellectual disabilities live in institutions and the number has dropped significantly. Most of the residents entered the institution before the explosion of community services over the last several decades, and many have not, or will not, experience personally the fruition of that community service development.
This is a time to circle back to those constitutional principles on which the rights of people with disabilities were recognized decades ago. These principles both support the ADA’s integration mandate and mitigate the weaknesses of a purely ADA approach.
The involuntary institutionalization of people with intellectual disabilities is unconstitutional on due process and equal protection grounds where it is unjustified in the sense recognized in Olmstead, that is, when they can “handle and benefit from” community services based on professional assessment. Periodic review of each person’s need for institutionalization is required.
Restoration of the constitutional dimension to the conversation encourages reasoned discussion of both the opportunities and the deficits in the Olmstead statutory approach. Recognition of the constitutional right to community services is an opening to move further toward an end to unjustified institutionalization
Both the Constitution and the Americans with Disabilities Act advance the integration of people with disabilities in our society. The constitutional scholar Jacobus tenBroek urged “integrationalism.” He “called for the full and equal participation in society of persons with disabilities.” “Without that right, that policy, that world, it is not living.”

Brief on Fairness of Disney Segway Ban in Florida Federal Court

2009-08-09T16:52:00.004-05:00

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).

USA, 23 States Object to Settlement : Segways, Walt Disney World, Title III ADA, Discrimination

2009-07-16T16:20:00.007-05:00

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.

The Supreme Court Asked to Decide Employment Rights of Job Applicants with Disabilities

2007-08-02T10:53:00.000-05:00

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.

Right to Intervene in Community Placement Olmstead Litigation

2007-04-26T19:56:00.000-05:00

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).

High State Officials (Even a Governor) Must Provide Information in ADA Suits

2007-04-02T09:26:00.000-05:00

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).

Uncommon Appeals Court Case on the ADA’s Religious Exemption

2007-04-02T09:23:00.000-05:00

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).

Abuse of Public School Preschool Child

2007-04-02T09:21:00.000-05:00

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).

Contempt and Enforcement of ADA Injunctions

2006-12-31T08:43:00.000-05:00

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).

911 Emergency Calls, Local Police and the ADA

2006-12-30T20:52:00.000-05:00

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.)

Blind Money

2006-11-29T14:32:00.000-05:00

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.

Inmate's Death in Restraints. Judge: "Torture"

2006-11-15T10:17:00.000-05:00

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.

ADA Litigation: Too Much? Too Many? Giving Suits a Bad Name?

2006-11-13T19:50:00.000-05:00

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.

Olmstead Community Services Placements: Progress Slows

2006-11-13T19:34:00.000-05:00

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.

TURNER / MCAT / LEARNING DISABILITIES / TESTING / CLASS ACTION

2006-11-12T16:58:00.000-05:00

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.

Disability Law, the ADA and the Courts

2006-11-11T17:00:00.000-05:00

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