Disability Law

Utah State Settles ADA Suit

2007-06-05T05:34:00.000-07:00

See this article, which begins:

A discrimination lawsuit filed against Utah State University by deaf students who claimed the school was not providing adequate interpreting services has been settled.

Dale Boam, the attorney representing the students, said the lawsuit was settled in April with a promise by the school to have three full-time interpreters and keep deaf students involved and informed of interpretation issues.

"The biggest point of contention -- and it had gone on for years and years -- the students felt the school was not making an effort to provide adequate services," Boam said. "Having three full-time interpreters gives them a much stronger base to work from."

Twelve students filed the lawsuit in May 2006, contending the school was violating the Americans with Disabilities Act because it was not providing them with appropriate services.

The students would request an interpreter for a class and would arrive to find someone not qualified for the task or a stenographer would be there to take notes for the student but not be able to help them participate in discussion, Boam said.

"One of the points of the agreement was a philosophical agreement that these note takers are not an interpreter. They don't provide an equivalent service," he said.

Angie Olsen, Utah State University deaf services coordinator, said the goal is to have one staff interpreter for every two students using interpreter services. Currently, USU has seven deaf students using interpreters and about 25 deaf or partially deaf students using notetakers.

California Supreme Court Responds (Indirectly) to Businesses Complaining About Serial Disability Discrimination Litigation

2007-06-02T15:59:00.000-07:00

And they say: Take it to the legislature!

On Thursday, the California Supreme Court issued an opinion in Angelucci v. Century Supper Club. Here's how the court described the issue and its holding:

We granted review in the present case to determine whether, in order to state a claim under Civil Code section 52, subdivision (a), the relevant remedial provision of the Unruh Civil Rights Act (Civ. Code, § 51 et seq; also hereinafter sometimes referred to as the Act), plaintiffs must demonstrate that they affirmatively requested nondiscriminatory treatment and were refused.

As we shall explain, we conclude that the text of the Act does not support defendant’s and the Court of Appeal’s assertion that, in order to recover under the Act, plaintiffs who are discriminated against when they present themselves at a business establishment and pay the price of admission also must demand equal treatment and be refused. Nor do we believe it would be consistent with the policy of the Act, or with our case law, to read such a requirement into the language of the Act. Accordingly, the judgment rendered by the Court of Appeal is reversed.

"Great decision," I hear you saying, "but what does this have to do with disability law?" Well, flip to Part III of the court's decision, and you read:

The trial court’s and the Court of Appeal’s interpretation of section 52(a) reflects in part defendant’s assertion that Angelucci and the other men involved in the present case are professional plaintiffs who “shake down” business entities on the basis of assertedly technical violations of civil rights laws and similar enactments, and that they and their attorneys engage in this practice simply to make a living — unmotivated by any desire to eliminate discrimination or to redress any actual injury. Defendant claims that plaintiffs made repeated unannounced visits to defendant’s business establishment in order to increase the statutory damages they could seek for multiple violations of the Act, and defendant accuses plaintiffs and their attorneys of being “bounty hunters” who have been involved in numerous similar lawsuits. Defendant also contends that meritless, abusive litigation of this type is proliferating in California and generally results in the extortion of a settlement on the basis of the plaintiff’s unsupported factual allegations.
[Here, the court dropped a footnote that referred to the ADA serial litigation issue: "Some writers have argued that compliance with the ADA remains elusive, justifying the continued use of the private right of action in spite of occasional abuse. (See Bagenstos, The Perversity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Litigation (2006) 54 UCLA L.Rev. 1, 15, 21 [“whether a class of litigation unduly burdens the courts necessarily depends on a normative assessment of the importance of that class”].) Other commentators chronicle instances in which a single plaintiff or law firm filed hundreds of ADA claims, some alleging assertedly technical or de minimis variations from applicable accessibility standards, and the authors consider whether such asserted litigation abuse warrants restriction of remedies under the ADA. (See Becker, Private Enforcement of the Americans with Disabilities Act via Serial Litigation: Abusive or Commendable? (2006) 17 Hastings Women’s L.J. 93, 97-99, 113 [describing assertedly abusive ADA litigation in Pennsylvania, Florida, and California and suggesting adoption of “safe harbor” provision in the ADA to protect businesses that undertake good faith efforts to make premises accessible]; McCabe, California Disability Anti-Discrimination Law: Lighthouse in the Storm, or Hunt for Buried Treasure? (2005) 36 McGeorge L.Rev. 661, 679-681, 686-689 [noting the problem and describing the debate]; see also Milani, Go Ahead, Make My 90 Days: Should Plaintiffs Be Required to Provide Notice to Defendants Before Filing Suit under Title III of the Americans with Disabilities Act? (2001) 2001 Wisc. L.Rev. 107, 185 [arguing that title III of the ADA already incorporates a notice provision from another statute].)"]
Although we share to some degree the concerns voiced by the trial court and the appellate court below and by defendant and its amici curiae regarding the potential for abusive litigation being brought under the Act, these concerns do not supply a justification for our inserting additional elements of proof into the cause of action defined by the statute. It is for the Legislature (or the People through the initiative process) to determine whether to alter the statutory elements of proof to afford business establishments protection against abusive private legal actions and settlement tactics. It is for the Legislature, too, to consider whether limitations on the current statutory private cause of action might unduly weaken enforcement of the Act or place unwarranted barriers in the way of those persons who suffer discrimination and whose interests were intended to be served by the Act.

Eighth Circuit Adds to Circuit Split on Reassignment

2007-05-30T09:30:00.000-07:00

Today, in Huber v. Wal-Mart Stores, the Eighth Circuit ruled that the ADA requires that an employee with a disability be reassigned to a vacant position as an accommodation only if the employee is the most qualified applicant for that position. This decision adds to a longstanding circuit split on the question.

In my view, the Eighth Circuit got it wrong. The ADA explicitly lists reassignment to a vacant position as a possible accommodation. If the Eighth Circuit is right, however, Congress accomplished absolutely nothing by adding the language about reassignment. Under the Eighth Circuit's interpretation, the employer is required to reassign an employee only if it would have reassigned her anyway, in the absence of the ADA. But Congress clearly meant to accomplish more than that, and the Supreme Court in US Airways v. Barnett seemed to recognize the point.

Ninth Circuit: Prior Notice Not Necessary to Get Attorneys' Fees in Title III Case

2007-05-25T08:05:00.000-07:00

Earlier this week, in an unpublished memorandum in Doran v. Del Taco, Inc., the Ninth Circuit issued yet another good decision on attorneys' fees in Title III cases. (See earlier discussion here.) The district court had denied thet plaintiff attorneys' fees, even though he had prevailed, because he had not given the defendant restaurant notice and an opportunity to cure the accessibility problems without litigation. The Ninth Circuit reversed. It held that the district court abused its discretion when it "denied fees by subjecting Doran to a [notice] requirement not found in the ADA or the case law."

En Banc Third Circuit: Can't Enforce IDEA Through Section 1983

2007-05-25T07:55:00.000-07:00

Yesterday, the en banc Third Circuit unanimously ruled, in A.W. v. Jersey City Public Schools, that the Individuals with Disabilities Education act cannot be enforced through 42 U.S.C. 1983. This is an important decision, because it means that kids and parents can't get money damages for violation of the IDEA, and it makes it nigh-impossible to maintain class-based claims for violation of the IDEA. The court's decision overrules its own prior precedent, and is inconsistent with decisions of a number of other circuits. (The court also took a bit of a leap in concluding that it had appellate jurisdiction to decide the issue in the first place.) Oh yeah, and the court concludes with a ruling, that also creates a circuit split, that Section 504 of the Rehabilitation Act cannot be enforced through Section 1983 either. All told, a significant and problematic decision.

Samaha on the Social Model

2007-05-23T07:24:00.000-07:00

New on SSRN: Adam Samaha, What Good is the Social Model of Disability? (U. Chicago L. Rev., forthcoming). The abstract:

A social model of disability relates a person's disadvantage to the combination of personal traits and social setting. The model appears to have had a profound impact on academics, politics, and law since the 1970s. Scholars have debated the model's force but its limitations are more severe than have been recognized. This Article claims that the model, like all social construction accounts, has essentially no policy implications. Its impact depends on normative commitments developed by some other logic, such as membership in the disability rights movement or adherence to versions of libertarian, utilitarian, or egalitarian theory that are triggered by the model's causation story. At the same time, a normative framework within which the social model is relevant will suggest not only policy goals but also an institutional design. These points are illustrated by recent controversies involving genetic screening technology, cochlear implants, and sign language communities. Contrary to impressions left in the law literature, the social model has nothing to say about the proper response to such developments, although the model might have a mediated influence on our sense of the best decisionmakers.

This is a very good paper, and I think it will be an important paper. Nevertheless, I think this whole "nothing to say" business is quite a bit overstated -- and the paper itself seems to acknowledge the point. Some social-model scholars might think that the causation story (that disability is caused by an interaction between physical/mental traits and the environment) itself answers all the key normative questions about disability policy -- and even more might write things that might be interpreted that way -- but I think the overwhelming majority of social-model scholars understand that our broader normative views ought to influence how we respond to that causation story. Most social-model scholars start with liberal-to-left egalitarian views, as well as an affiliation with the disability rights movement, and those normative commitments obviously have a great deal to do with what they think are the policy implications of the social model. I doubt anyone would deny that. I think a lot of social-model scholars use the term "social model" as a shorthand description for both the causation story and these normative commitments. Read that way, the social model obviously has quite a bit to say about disability policy, and I don't think Samaha denies that.

Moreover, the social-model causation story itself has something to say about disability policy, because it helps to expand our understanding of the possible policy responses to disability. If you think of disability as a medical condition, inherent in the person with a disability, then your only possible responses are some combination of cure and charity. What the social-model causation story said was that there's another set of options -- alter the aspects of the environment that make certain physical and mental traits disabling. Obviously, which environmental alterations we make (and whether we want to make them at all) depends on some deeper normative commitments, and for some impairments there is no conceivable set of environmental alterations that can remove the disabling effect, but the point of the social-model causation story is that the option is there far more often than people think. The social model was speaking to policymakers who believed that people with disabilities were unfortunates who were appropriate targets of largesse and saying that charity and cure isn't the only answer. And I think it's been quite effective in that regard. (And Samaha acknowledges the point in the paper.)

So pace Samaha, I think the social model has quite a bit to say. It's not a complete answer to any policy question -- but neither, I'd say, are any of the normative theories Samaha discusses in his paper. Adherents to the social model may overstate its implications, but Samaha overstates its limitations.

Supreme Court: Parents Have Enforceable Rights Under IDEA

2007-05-21T08:09:00.000-07:00

Today, the Supreme Court issued its opinion in Winkelman v. Parma City School District. The case presented the question whether parents can proceed in federal court pro se (that is, without a lawyer) to enforce provisions of the Individuals with Disabilities Education Act relating to their child's education. The Court, in a 7-2 decision, held that parents can proceed pro se in federal court. Justice Kennedy wrote the majority opinion, which concluded that the IDEA gives parents exactly the same rights relating to their children's education as it gives to their children. In an opinion concurring in the judgment in part and dissenting in part, Justice Scalia (joined by Justice Thomas) argued that parents have only two classes of enforceable rights under the IDEA: (1) a right to reimbursement if the school district denied a free appropriate public education and the parents sent the child to private school as a result; and (2) certain procedural rights.

It's nice to see the Court rule for the parents in an IDEA case, and the Court's holistic approach to reading the statute will be probably be helpful in future cases.

Ed. Department Releases IDEA Part C Rules

2007-05-15T22:17:00.000-07:00

See this article, which begins:

The U.S. Department of Education has released long-awaited proposed regulations for the portion of the federal special education law that focuses on infants and toddlers with disabilities.
Referred to as Part C of the Individuals with Disabilities Education Act, the $436 million early-childhood program was established in 1986 to serve children from infancy to age 2. About 265,000 children nationally, representing about 2 percent of the population of babies and toddlers, were served under Part C, according to data collected by the Education Department in 2002.

Proposed regulations were introduced once before, in 2000, but were withdrawn from consideration in 2002 because, the department said, the special education law was too close to reauthorization for the regulations to be useful.

Among the new changes, according to the department, are clarifications in areas such as confidentiality and the use of insurance to pay for Part C services.

Eleventh Circuit: Mental Retardation is Not a Disability Under the ADA

2007-05-15T21:21:00.000-07:00

Is this case a parody? No, it's an outrage. The Eleventh Circuit held, in an unpublished per curiam opinion, that an individual with mental retardation did not have a "disability" as defined by the ADA. Not only that, it held that the district court properly granted summary judgment against him on the "disability" issue. Here's a taste of the court's analysis:

The record shows that Littleton is able to read and comprehend and is able to perform various types of jobs. It is apparent that Littleton is somewhat limited in his ability to learn because of his mental retardation. However, he has pointed to no evidence which would create a genuine issue of material fact regarding whether he was substantially limited in the major life activity of learning because of his mental retardation.

It is unclear whether thinking, communicating and social interaction are “major life activities” under the ADA. We acknowledge that a review of Littleton’s deposition testimony is not inconsistent with his assertion that he sometimes has difficulty thinking or communicating. Even if thinking and communicating are major life activities, however, Littleton has not shown that he is substantially limited in those activities. As Wal-Mart contends, moreover, the fact that Littleton drives a car might be determined to be inconsistent with his assertion that his abilities to think and learn are substantially limited. Additionally, Littleton’s mother and Agee testified that Littleton is capable of being interviewed for a job without any accommodation, is “very verbal,” and would not need a job coach to communicate effectively with other people in the workforce. This bolsters Wal-Mart’s contention that any difficulty Littleton has with communicating does not appear to be a substantial limitation.

We do not doubt that Littleton has certain limitations because of his mental retardation. In order to qualify as “disabled” under the ADA, however, Littleton has the burden of proving that he actually is, is perceived to be, or has a record of being substantially limited as to “major life activities” under the ADA. 42 U.S.C. §§ 12102(2)(A), 12112(a), 12132; see also Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220, 1227 (11th Cir. 1997). Assuming that thinking, communicating and social interaction are “major life activities” under the ADA, we conclude that Littleton has failed to create a genuine issue of material fact that he is substantially limited in those pursuits. Thus he has failed to assert a prima facie case of discrimination under the ADA.

Takes One to Know One

2007-05-12T22:32:00.000-07:00

Can you believe that Showtime gives these guys a forum for this kind of glibertarian propaganda? They're much better comedians than propagandists, anyway. I've seen lots of folks make libertarian arguments sound appealing, but these guys seem incapable of doing anything other than preaching to the converted.

Nice Opinion on Zoning Accommodations for Group Homes

2007-05-09T12:31:00.000-07:00

New on Westlaw: Developmental Services v. City of Lincoln, 2007 WL 1290082 (D. Neb., May 2, 2007). The court's introduction sums it up:

Evidence showing heaps of red tape, garnished with bureaucratic indifference and inconsistent and irrelevant posturing by city officials, elected and otherwise, does not make the City of Lincoln guilty of consciously intending to discriminate against people with developmental disabilities. But that evidence, and more, does prove that Lincoln denied a group home provider and its developmentally disabled clients reasonable accommodations to land-use requirements. As a result, taxpayers will have to pay the provider a lot of money for the City's violation of federal law. Sadly, by merely acting reasonably, Lincoln could have easily avoided that expensive outcome.

N.D.W.Va.: Title II Validly Abrogates Sovereign Immunity in Context of Medical Residency

2007-05-09T11:59:00.000-07:00

New on Westlaw: Sarkissian v. West Virginia Univ. Bd. of Governors, 2007 WL 1308978 (N.D.W.Va., May 3, 2007). Dr. Sarkissian was discharged from a medical residency at the West Virginia School of Medicine. He sued under, inter alia, Title II; he claimed that the school had refused to accommodate his ADHD. The school moved to dismiss on sovereign immunity grounds, and the district court denied the motion to dismiss. The Fourth Circuit had earlier held that Title II validly abrogates state sovereign immunity in cases involving public higher education, and the Supreme Court held in the Garrett case that the ADA did not validly abrogate state sovereign immunity in cases involving employment. A medical residency is a bit of a hybrid of higher education and employment, but the court concluded that a residency is primarily educational rather than vocational. Accordingly, applying the Fourth Circuit's higher-education precedent, it held that Title II does validly abrogate state sovereign immunity in the medical residency context. Expect an appeal.

NYT on Prenatal Testing for Down Syndrome, and Commentary

2007-05-09T10:09:00.000-07:00

Today's New York Times contains this article on prenatal testing for Down syndrome. A key passage:

Until this year, only pregnant women 35 and older were routinely tested to see if their fetuses had the extra chromosome that causes Down syndrome. As a result many couples were given the diagnosis only at birth. But under a new recommendation from the American College of Obstetricians and Gynecologists, doctors have begun to offer a new, safer screening procedure to all pregnant women, regardless of age.

About 90 percent of pregnant women who are given a Down syndrome diagnosis have chosen to have an abortion.

Convinced that more couples would choose to continue their pregnancies if they better appreciated what it meant to raise a child with Down syndrome, a growing group of parents are seeking to insert their own positive perspectives into a decision often dominated by daunting medical statistics and doctors who feel obligated to describe the difficulties of life with a disabled child.

Ann Althouse comments:

In the future, it seems, anyone taking care of a child with Down syndrome will be viewed as a saint... or, perhaps, misguided and foolish.

Dana Goldstein comments:

As anyone who's had their life enriched by a loved one with a disability can attest, these conversations are incredibly fraught. But without judging any family's choice to either end or continue such a pregnancy, the issues remain the same -- the right to choose an abortion and the freedom from coercive pressure. Expectant parents should be given information, resources, and support as they make these complex choices. But expect the antis to boil this issue down into a talking point and portray pro-choicers as mad scientists trying to genetically manipulate the human race.

I discussed some of these issues, and the problems they present for people like me who favor both disability rights and abortion rights, in this piece. There are a bunch of competing considerations here. When women choose to abort after receiving a diagnosis of Down syndrome, they often do so on the basis of misperceptions about the lives of people with that condition. Those misperceptions stem from and feed into a general societal view of people with disabilities as being less than fully worthy citizens. From a disability rights perspective, those are big problems. In principle, it makes sense that pregnant women whose fetuses have been so diagnosed should receive full information on the point -- that people with Down syndrome can be happy and productive members of a family and a community. But Goldstein is quite right that a strategy of abortion opponents (validated by the Supreme Court's reasoning in the recent Carhart case) is to pack increasingly burdensome and coercive requirements into the category of "informed consent." Expressed concern about disability rights could easily be used as a way of imposing yet more burdens under that heading. And I don't think disability rights advocates should be so happy with the message expressed by many of the folks who are urging women not to abort fetuses that have been diagnosed with Down syndrome -- a message that is, essentially, that it's really saintly of you to be the parent to a child with that condition. This is a hard issue, and, unfortunately, will be one of the next battlegrounds in the abortion rights wars.

Sheth on Wrongful Birth/Wrongful Life Actions

2007-04-27T07:44:00.000-07:00

New on Westlaw: Darpana M. Sheth, Better off Unborn? An Analysis of Wrongful Birth and Wrongful Life Claims Under the Americans with Disabilities Act, 73 Tenn. L. Rev. 641 (2006). From the introduction:

A recent study shows that more than 80 percent of babies prenatally diagnosed with Down syndrome are aborted. In an age of increasing reliance on prenatal and genetic testing, should state tort law encourage reproductive choices that discriminate against offspring with actual or potential disabilities? Proponents of wrongful birth and wrongful life claims answer this question in the affirmative by supporting claims that allow monetary damages for the negligent deprivation of the choice to abort or not conceive a child with an actual or potential congenital disability. But the notion that one should be compensated under state tort law for the deprivation of the opportunity to prevent the birth of a child with disabilities is inherently incompatible with the ideals embodied in our nation's commitment to end discrimination against individuals with disabilities.

This Article argues that the genetic torts of wrongful birth and wrongful life violate the prohibition of discrimination against individuals with disabilities by public entities contained in Title II of the Americans with Disabilities Act. Although there has been some law review commentary on the torts of wrongful birth and wrongful life, especially in the context of federal abortion law, this Article is among the first to examine the viability of these claims under the Americans with Disabilities Act.

The title of this piece is strikingly similar to Adam Milani's piece on related issues, which everyone interested in these topics should read.

Student Note on Commitment of People with Mental Retardation

2007-04-27T07:39:00.000-07:00

New on Westlaw: Laura W. Harper, Comment, Involuntary Commitment of People with Mental Retardation: Ensuring All of Georgia's Citizens Receive Procedural Due Process, 58 Mercer L. Rev. 711 (2007). The introduction:

In the state of Georgia there are approximately three thousand citizens who are confined to segregated living institutions because of their disabilities. Many of these individuals are placed in institutions involuntarily through legal proceedings. Some of these individuals have mental retardation, a condition that occurs during a person's development and results in below normal intellectual functioning. Many disability advocates argue that segregation and institutionalization of people with mental retardation is not needed, although all do not agree. Despite strong advocacy for the rights of people with disabilities, many continue to be institutionalized, often because their families can find no other path of treatment for their loved ones.

This Comment focuses on the procedures used in Georgia to continue the habilitation of people with mental retardation. In order to commit someone initially, Georgia's statute requires an adversarial hearing with ample procedural protections. However, once the initial order for habilitation is signed, the level of procedural protections for Georgia's citizens drops dramatically. This Comment first analyzes the procedures currently in place in Georgia. Next, it analyzes what procedural due process might require in order for a state to continue its habilitation of a person with mental retardation. Because there has been no United States Supreme Court decision on point, this Comment focuses on past procedural due process decisions to outline the possible requirements. It also analyzes the procedures that other states utilize for continued habilitation, as the Supreme Court currently considers what procedures are used by states when determining how much procedure is due.

After analyzing what procedural due process requires, this Comment discusses how those constitutional rights can be waived, including what constitutes adequate notice of rights. After outlining the relevant law, this Comment analyzes Georgia's procedures to determine (1) whether they comply with the proposed requirements of procedural due process and (2) whether the statute provides adequate notice so that failure to exercise those rights results in waiver. Finally, this Comment suggests possible amendments to Georgia's procedures so that committed persons receive all of the protections they are entitled to under the law and so that no person is needlessly confined.

Dietz on Reasonable Accommodation for Attorneys with Disabilities

2007-04-27T07:35:00.000-07:00

Just out in the Florida Bar Journal: Matthew Dietz's article, Reasonable Accommodations for Attorneys with Disabilities.

Bazelon Center on Virginia Tech Shootings

2007-04-27T07:31:00.000-07:00

See this article from Inside Higher Ed. It begins:

There’s lots of talk in these post-Virginia Tech tragedy days of the need to better identify students who are disturbed, just as there are plenty of calls from politicians and others to find ways to quickly remove them from colleges. An advocacy group for people with mental illness thinks the talk has gone too far.

“It’s sad that in the wake of a tragedy like this, there’s the hunger for quick fixes and quick legislation,” said Robert Bernstein, executive director of the Bazelon Center for Mental Health Law, at a press conference Thursday.

Added Chris Koyanagi, the center’s policy director: “I’m disappointed that the conservation has been about what could have been done right before to prevent this [shooting spree]. What about earlier?”

Cho Seung-Hui, the Virginia Tech shooter, entered a mental health facility in late 2005. Several leaders of the Bazelon Center said the real story is that police didn’t know where to turn when alerted of Cho’s stalking and threat of suicide, and that professors who saw the student’s disturbing writing didn’t find the right resources in the public health system.

Center advocates say changes have to be made at colleges so that everyone is aware of protocol when dealing with a student who is deemed a threat. Leaders of the center are working on a best practices report that urges colleges to avoid blanket policies that limit a student’s likelihood of seeking help but that still allow officials to intervene when needed.

Bernstein said the larger issue is fixing what he calls large gaps in service availability. Too few counselors are available to students at many campuses, he said.

Housing Discrimination Complaints Hit Record

2007-04-23T06:29:00.000-07:00

See this article by that title, which begins:

A record number of Americans are complaining about housing discrimination, with disability and race as the leading reasons for filing a complaint, according to the government's annual fair housing report.

Guess Who's to Blame for the Virginia Tech Shootings

2007-04-23T06:14:00.000-07:00

It's advocates of deinstitutionalization, if you read this in today's Wall Street Journal. After the obligatory shots at 1970s-era deinstitutionalization advocates, the op-ed turns to the Virginia Tech shootings:

Diagnosis from afar is the purview of talk-shows hosts and other charlatans, and I will not attempt to detail the psyche of the Virginia Tech slaughterer. But I will hazard that much of what has been reported about his pre-massacre behavior--prolonged periods of asocial mutism and withdrawal, irrational anger and hatred, bizarre writing and speech--is not at odds with the picture of a fulminating, serious mental disease. And his age falls squarely within the most common period when psychosis blossoms.

No one who knew him seems surprised by what he did. On the contrary, dorm chatter characterized him explicitly as a future school-shooter. One of his professors, the poet Nikki Giovanni, saw him as a disruptive bully and kicked him out of her class. Other teachers viewed him as disturbed and referred him for the ubiquitous "counseling"--an outcome that is ambiguous to the point of meaninglessness and akin to "treatment" for a patient with metastasized cancer.

But even that minimal care wasn't given. The shooter didn't want it and no one tried to force him to get it. While it's been reported that he was involuntarily committed to a "Behavioral Health Center" in December 2005, those reports also say he was released the very next morning. Even if the will to segregate an obvious menace had been in place, the legal mechanisms to provide even temporary "warehousing" were absent. The rest is terrible history.

That is not to say that anyone who pens violence-laden poetry or lets slip the occasional hostile remark should be protectively incarcerated. But when the level of threat rises to college freshmen and faculty prophesying accurately, perhaps we should err on the side of public safety rather than protect individual liberty at all costs.

If the Virginia Tech shooter had been locked up for careful observation in a humane mental hospital, the worst-case scenario would've been a minor league civil liberties goof: an unpleasant semester break for an odd and hostile young misanthrope who might've even have learned to be more polite. Yes, it's possible confinement would've been futile or even stoked his rage. But a third outcome is also possible: Simply getting a patient through a crisis point can prevent disaster, as happens with suicidal people restrained from self-destruction who lose their enthusiasm for repeat performances.

U. Michigan Stadium Access Litigation

2007-04-21T09:15:00.000-07:00

See this from the Chronicle of Higher Education:

A group of disabled veterans has sued the University of Michigan at Ann Arbor over what they say is an attempt to evade the requirements of the Americans With Disabilities Act during the renovation of Michigan Stadium, the Associated Press reported.
The federal lawsuit, filed by the Michigan Paralyzed Veterans of America, accuses the university of characterizing the $226-million project as merely a series of repairs rather than a wholesale revamping of the giant stadium, which will add seats, enlarge seats and aisles, and, perhaps most important, install 83 luxury suites.
The disability law would call for 1,000 wheelchair-accessible seats scattered throughout the 107,500-seat arena, but only if the project is considered an “alteration,” according to a lawyer for the veterans. Wheelchair-bound fans are currently restricted to 45 seats in each end zone.

Chapel Hill Settles Discrimination Lawsuit

2007-04-21T09:12:00.000-07:00

See this article by that title. It begins:

Denying any wrongdoing, the town has agreed to pay $30,000 to settle a housing discrimination claim brought by the mother of a disabled girl.
In December 2005, the federal Justice Department sued the town for failing to provide a subsidized apartment with wheelchair access. Both parties have agreed to settle the dispute, but the U.S. District Court in Greensboro still must approve the agreement.
Under the settlement, the town would adjust its housing accommodation policy and retrain employees on the Fair Housing Act, which prohibits discrimination based on a disability.
"No one with a disability should be denied an accommodation they need to maintain their independence," said Kim Kendrick, assistant secretary for fair housing and equal opportunity with the U.S. Department of Housing and Urban Development.
Kari R. Johnson, a Raleigh lawyer representing the town, said Chapel Hill denies the allegations but settled to avoid fees that would have resulted from a protracted legal battle.

Areheart on the Medical Model of Disability

2007-04-21T08:58:00.000-07:00

New on SSRN: Bradley Allan Areheart, When Disability Isn't "Just Right": The Entrenchment of the Medical Model of Disability and the Goldilocks Dilemma, 83 Ind. L.J. __ (forthcoming 2008). The abstract:

In this Article, I analyze how federal courts' interpretations of the Americans with Disabilities Act ("ADA") have presented a "Goldilocks" dilemma for disabled individuals. In particular, I examine how a typical ADA plaintiff is found either "not disabled enough" to warrant the protections of the ADA or "too disabled" to be a "qualified individual" for the respective job. The result is that very few plaintiffs are disabled "just right." Such a result is at odds with the original intent of the ADA.
Concern over the ADA could hardly be more timely. Just last fall, in September of 2006, bipartisan legislation based on the National Council on Disability's recommendations was introduced in the House of Representatives. It was entitled the "Americans with Disabilities Act Restoration Act of 2006," but failed to make any progress before the session ended and the bill was cleared from the books. However, a new Congress provides new hope for the passage of such a bill.
After explicating the two dominant theoretical models for understanding disability - the medical and social models of disability - I examine how most of the problems with how disability is understood and interpreted stem from the entrenchment of the medical model of disability. I explain how representations in the media and federal court decisions have underscored a "medicalized" view of disability. Moreover, I document how such a view has fostered misperceptions and false stereotypes concerning those with disabilities.
Finally, I advocate that Congress pass an ADA Restoration Act similar to the one proposed last fall. I explain how this Act would overhaul the ADA and provide a compelling solution that has not yet received much scholarly examination. I also recommend that the EEOC draft reports to document systemic disability discrimination toward certain groups.

Jolly-Ryan on the Timed and Flagged LSAT

2007-04-21T08:53:00.000-07:00

New on SSRN: Jennifer Jolly-Ryan, The Fable of the Timed and Flagged LSAT: Do Law School Admissions Committees Want the Tortoise or the Hare? The abstract:

This article questions whether the strict time limitations for taking the LSAT conflict with law school admissions committees' goals of measuring an applicant's aptitude and predicting who will be good law students or who will be good lawyers. Strictly timed tests, as gate keepers to the legal profession, emphasize test takers' speed, to the detriment of more valuable qualities such as perseverance, accuracy, and care.
The article also questions whether the practice of flagging LSAT test scores of law school applicants with disabilities, is discriminatory. The practice of flagging LSAT scores of test takers with disabilities should end, as it has ended for most standardized tests, including the SAT, ACT, GRE, GMAT, and TOEFL. Flagging LSAT scores of test takers with disabilities stigmatizes law school applicants in the
admissions process and is contrary to the goal of federal law in placing test takers with disabilities on equal footing by assessing their abilities, rather than their disabilities.

Smith on the Definition of Disability

2007-04-21T08:49:00.000-07:00

New on SSRN: Deirdre M. Smith, Who Says You're Disabled? The Role of Medical Evidence in the ADA Definition of Disability (Tulane Law Review, forthcoming). The abstract:

The Americans with Disabilities Act ("ADA"), enacted by Congress seventeen years ago, offered disabled people a hope for equality and access that has not been fulfilled. Court decisions halt an overwhelming majority of claims at the summary judgment stage. A key mechanism for fencing out disabled people's claims is the pernicious requirement, based upon the very construction of disability that the ADA's proponents aimed to dispel, that medical evidence is required as a threshold matter to demonstrate that the statute applies. However, a plaintiff's testimony is sufficient to establish a prima facie claim of disability. Whether such evidence, standing alone, is ultimately persuasive in proving disability should be a question for the fact-finder.
This Article argues that courts improperly require plaintiffs to produce expert medical evidence to establish that they meet the statute's definition of an "individual with a disability." The stated rationales applied to the medical evidence requirement,
such as the need for "corroborating" evidence, "objective" evidence, or evidence to assist juries in assessing disabilities that are not "obvious," do not withstand analysis under either the substantive law of the ADA or broader summary judgment principles. Such requirement in fact reflects an unstated rationale: a deep-seated skepticism of those "claiming disability" generally and ADA plaintiffs specifically. As a result, judges disregard the proper analysis to be applied to summary judgment motions and instead impose a hyper-technical, heightened evidentiary burden on plaintiffs in an effort to foreclose potential malingers' claims from reaching the trial stage. This skepticism, however, is itself another form of entrenched, invidious discrimination against people with disabilities.
Moreover, judges' reliance on medical evidence to screen out claims brought by people faking or exaggerating disability is misplaced. The determination of whether a person is truly disabled or merely exaggerating her condition to achieve some secondary gain through ADA litigation is one more properly left to jurors than to doctors. The continued hegemony of medicine in identifying disability, as demonstrated in the view that physicians can and should serve as gatekeepers of disability claims, wrongly pathologizes and demeans the category of "disability" and undermines the statute's effectiveness as a tool to advance civil rights.

Dresser on Schiavo

2007-04-21T08:45:00.000-07:00

My colleague Rebecca Dresser has just posted on SSRN her piece, Schiavo and Contemporary Myths About Dying, 61 U. Miami L. Rev. 401 (2007). The abstract:

When the Schiavo case burst onto the national scene, most of us assumed that everyone would see the case as we did. But instead, Schiavo showed that U.S. pluralism was alive and well in decisions about life-sustaining treatment. Schiavo demonstrated, too, that at least some of this pluralism reflects misguided myths about human life and death. In this essay, I examine the myths that Schiavo exposed. One such myth is that death with dignity is easily attainable in modern America, as long as people make living wills. Another myth is that only patients themselves are permitted to take quality of life into account when deciding about life-sustaining interventions. A third myth is that research advances are bringing an end to the difficulties of aging. To examine the myths, I draw on public commentary about Schiavo and on four texts published in 2005, when the case was in the headlines.