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Thursday, April 26, 2007

Right to Intervene in Community Placement Olmstead Litigation

In a lawsuit for community placement, which institutional residents are the plaintiff class? To what participation in the suit are residents satisfied with institutional care entitled?

This is an ADA class action by people with developmental disabilities who live in institutions but, with adequate services, could live in the community. As the appeals court put it, the suit’s purpose is “to hasten the state of Illinois down the road to community-based care.” The class is not yet certified.

The suit was not unanimously supported by other residents and families. Representatives institutional residents who do not wish to live in the community were worried they might be included in a class which they opposed. They asked the trial court to allow them to intervene in the case. The trial court denied the motion. In this recent decision, the Seventh Circuit Court of Appeals agreed that there is no right to intervene, nor is permissive intervention required.

The appeals court recognized the importance of these issues and the dramatic effect of the Americans with Disabilities Act on this sort of litigation. Citing Olmstead v. L.C., 527 U.S. 581 (1999), the court began by noting that “[t]his case arises in the context of a much larger debate over the proper way to provide care for the developmentally disabled.” However, Olmstead “has left the exact route to implementing this integration mandate somewhat murky.”

Because the complaint emphasized the need for the state to provide a “choice” between institutional and community services, and the proposed class consisted of people who “do not oppose” community placement, the court of appeals was satisfied that the proposed intervenors’ rights could not be impaired by the action going forward without their participation. In any event, the court found that the state defendants presumptively would provide adequate representation for the group who wanted to remain in institutional care.

The appeals court thus avoided clarifying the “murky” Olmstead standards and indicated that the lines set out in the class definition (separating those desiring placement from those opposing it) are sufficient to defeat motions to intervene such as these.

NOTE: For a decision on whether one has a right to live in institutional settings, see Richard C. ex rel. Kathy B. v. Houstoun, 196 F.R.D. 288 (W.D.Pa.1999), aff'd sub nom. Richard C. v. Snider, 229 F.3d 1139 (3d Cir.2000) (unpublished order).

Ligas v. Maram,
478 F.3d 771 (7th Cir. 2007).

Monday, April 2, 2007

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

The obligation to provide information in the pre-trial stages of an ADA case apply to high state officials, including a governor, even if no personal involvement of the official is alleged in the case.

This is a suit by parole violators in New York City's jails, claiming that they have been incarcerated in the city's jails needlessly while awaiting an opening in an appopriate treatment program which can address their serious and persistent mental health conditions and additions. The suit's basis is the ADA and the Rehabilitation Act.

The plaintiff prisoners sued the Governor and other executive branch officials. The Governor refused to answer discovery requests, claiming that he need not do so because no claims had been made that he was personally involved in the matters in the suit and that the other defendants' answers represent the response of the executive branch, so his answers would be duplicative. The Governor, however, did not make a timely objection or request for a protective order.

The court held the Governor to the rules and required him to answer the discovery (or show an agreement among the parties that the Governor would be bound by the answers of others). The Governor's violation of the rules was not in bad faith, so no sanctions were imposed.

However, given the Governor's actions, he was found to have waived all objections to interrogatories and thus must answer them in full by a date set by the court. Plaintiffs also won an order that the Governor pay their attorney's fees and expenses on this motion.

Jobe O. v. Pataki, Slip Copy, 2007 WL 844707 (S.D.N.Y., Mar. 15, 2007).

Uncommon Appeals Court Case on the ADA’s Religious Exemption

In an Americans with Disabilies Act (ADA) suit against a private Quaker school and three of its employees, parents of a student claimed that the school created a discriminatory environment complete with public humiliation, improper physical discipline, and an orchestrated campaign to force his withdrawal from the school. The school also allegedly failed to adequately accommodate the boy's Attention Deficit Disorder and related learning disabilities.

The lower court had granted judgment to the school on account of the ADA's exemption for religious organizations. The basis of that decision was a single affidavit by the Head of School describing the intimate connections between the local Quaker Meeting and the school; the family filing suit had not had an opportunity for pre-trial discovery into the factual basis for any religious exemption.

The crucial issue in this case for the court is whether the school is "controlled" by the Quaker religious organization. The ADA provides that its provisions “shall not apply ... to religious organizations or entities controlled by religious organizations, including places of worship.” 42 U.S.C. § 12187. If Abington is a religious organization (or controlled by one), then the case must be dismissed.

Abington Friends School was established in 1697, and is the oldest primary and secondary educational institution in the country that has operated continuously at the same location. It is affiliated with the Abington Monthly Meeting of the Religious Society of Friends (Quakers). The family filing suit claimed that, although the school is a "Quaker" school, it "does not conduct itself or hold itself out as a religious organization or an entity controlled by a religious organization."

The family requested pre-trial discovery of facts related to the ownership and operation of the school, its curriculum, the religious affiliation of staff, teachers and students, and the Quaker Meeting's control over the school. The lower court denied the discovery and granted summary judgment to the school, concluding that the "religious organization" test is not a factual test, but rather one to be decided on the law, as informed by the Head of School's affidavit.

In this decision by the federal Third Circuit Court of Appeals, the court noted the paucity of caselaw on the religious exemption. "No court of appeals has yet fully examined the ADA's religious exemption, and the undeveloped state of this record makes us reticent to do so now." Whether Abington qualifies is a "mixed question of law and fact," and the family is entitled, the court held, to discovery on the school's nature, religious or otherwise. The court concluded:

"One of the oldest primary and secondary schools in the country, long known for its Quaker heritage, superficially seems to be a strong candidate. But discovery digs subsurface and may unearth facts that tend to support the contrary conclusion. Because the Does were not given an opportunity to marshal facts in aid of their argument, we vacate the District Court's grant of summary judgment and remand this case for further proceedings.”

Doe v. Abington Friends School, --- F.3d ----, 2007 WL 777561 (3d Cir., Mar. 15, 2007).

Abuse of Public School Preschool Child

Think of a four-year old you have known. The gait and smile and size of such a child. And now, if you can, try to imagine someone beating that four-year old. A public school teacher recently did that, and more, to a youngster with disabilities. This happened in school and the authorities knew and delayed protecting the child from abuse, a lawsuit alleged.

The 9th Circuit Court of Appeals rejected the school's claims of immunity from suit under constitutional principles.

Claiming abuse including being beaten, slapped, body slammed, unexplained bruises and shoeless walks from the school bus to the classroom, a four year old child in a public school sued the school under the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the IDEA, and the Constitution. The child is non-verbal, autistic and has tuberous schlerosis, a neurological disease which causes tumors in various organs and skin lesions, among other things.

A particular teacher in a special education program admitted slapping the child's hands repeatedly and hitting his head and face. A detective witnessed the teacher "maliciously body slam..." the child into a chair. Four times, the teacher forced the child to walk without shoes across the asphalt from the school bus to the class room. The child began to show violent behavior. However, although the school knew of the abuse, the parent were not told of it for a long time. Months after the first abuse report, the teacher was placed on administrative leave.

The court held that the slapping, beating and slamming were unreasonable force against a student who, here, "was even more vulnerable than the average pre-school child." In doing so, the court rejected the school's "effort to candycoat" the claims by asserting that this was no more than a "failure to conform to best practices." The physical abuse violated the Fourth Amendment and the teacher has no qualified immunity from liability. On the other hand, forcing the child to walk shoeless was OK because "the teacher was simply attempting to teach Preschooler II not to remove his shoes on the bus," regardless of the pedagogical wisdom of this "lesson." The 9th Circuit held that unexplained bruising also do not rise to the level of constitutional violation.

As to the supervisory school officials (the superintendent, principal and others), there was sufficient basis to continue the suit on the grounds of the alleged "claimed knowledge or 'blind eye' acquiescence" in the abuse. Also, the supervisory officials' failure to remediate might trigger their liability, the court held because "a reasonable special education school official would know that [the teacher's] alleged abusive conduct, and the failure of other special education officials to address that conduct, are grounds for liability."

Preschooler II v. Clark County School Board of Trustees, --- F.3d ----, 2007 WL 840337 (9th Cir., Mar. 21, 2007).