Disability Law

Spring 2004

I.  Overview

  1. Constitutional Mandates
  2. Equal Protection
  3. Due Process
  4. Statutory Mandates

i.  To be entitled to protection under any of federal statutes, person must meet the definition of disability or handicap, must be otherwise qualified to carry out the fundamental requirements of the program with or without reasonable accommodation, must bring an action within the appropriate SoL, must prove discrimination, and have been discriminated against by a covered entity.

  1. IDEA
  2. Child with a disability means a child:
  3. With mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance… p. 35
  4. Includes autism, ADHD, etc.
  5. FHA
  6. Handicap means:
  7. Physical or mental impairment which substantially limits one or more of such person’s major life activities
  8. A record of having such an impairment or
  9. Being regarded as having such an impairment.
  10. Excludes drug use, transvesitism.
  11. Rehab Act §504
  12. patterned after civil rights legislation.
  13. Alexander v. Choate: TN can reduce number of Medicaid days-in-hospital; facially neutral; does not deny meaningful access or exclude from services. (Rehab Act does not guarantee handicapped equal results from state Medicaid.)
  14. Disability is:
  15. Physical or mental impairment which for such individual constitutes or results in a substantial impediment to employment and [individual] can benefit in terms of an employment outcome from vocational rehabilitation services.
  16. Does not include homosexuality/bisexuality/drug use/transvestities, etc.
  1. ACAA
  2. Air Carrier Access Act
  3. Handicapped individual means any individual who has a physical or mental impairment that, on a permanent or temporary basis, substantively limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.
  4. DDA:

1.  City of Cleburne v. Cleburne Living Center:

  1. Retarded/disabled are not a quasi-suspect class.

b.  Rational relationship standard.

  1. Eg, library card. State has legitimate interest in protecting books, but no rational relationship of requiring driver’s license.
  2. Later case:
  3. Heller: KY had civil commitment statutes that were bifurcated. One due process recipes if retarded, one if mentally ill.
  4. Retarded group had less due process. Easier to be commitment b/c lower standard of proof.
  5. court decided about different standards?
  6. ADA
  7. Title I: Public & Private Employment
  8. Title II: State & Local Government
  9. Title III: Programs of Public Accommodation Provided by Private Parties.
  10. Title IV: Telecommunications
  11. Title V: Miscellaneous
  12. Access in wilderness
  13. There is a separate cause of action for retaliation under the ADA, distinct from a discrimination cause.
  14. doesn’t have to be the person with the disability.
  15. if this does go to administrative proceedings, can get costs.

c.  Who is protected under the law?

i.  Bragdon v. Abbott:

  1. HIV patient v. dentist; SCOTUS holds HIV is disability.
  2. Analysis:

a.  did she have a disability under the ADA?

  1. Physical or mental impairment that substantially limits one or more major life activities
  2. ID the impairment
  3. Does it affect a major life activity
  4. Record of impairment or
  5. Being regarded as having an impairment.
  6. Could he use a direct threat analysis to defend?
  7. ADA defines a direct threat as a significant risk to the health or safety of others that can’t be eliminated by a modification of policies, practices, or procedures.
  8. Existence of significant risk must be determined from PoV of person who refuses the treatment or accommodation, and risk must be based on medical or objective evidence.

d.  Who is not protected?

  1. Sutton v. UAL:
  2. SCOTUS holds myopic twin sisters not protected b/c have corrective measures that mean the “major life activity” isn’t affected.

II.  Right to Free Appropriate Public Education

a.  Rehab Act, ADA & IDEA coverage

  1. Rehab & ADA are nondiscrimination statutes; mandate reasonable accommodation as part of nondiscrimination but don’t require schools to carry out activities that would fundamentally alter program or would be unduly burdensome.
  2. generally school districts can follow Rehab act by following IDEA; but §504 may be a way of getting services for student who otherwise doesn’t qualify for services under IDEA.
  3. IDEA mandates more than this; contemplates special ed and related services that may be much more expensive than a reasonable accommodation would require.

1.  What is disability under IDEA?

  1. Child with a disability means a child:
  2. With mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance… p. 35
  3. ADD has been added.
  4. If not on the list, might have to sue under ADA or Rehab Act. (Doe v. Belleville.)

b.  Any official who has reasonable cause to believe child w/ disability isn’t getting special education must report it. (Includes attys!)

c.  School districts must ID and evaluate all resident & private school children in the district, as well as special populations (homeless, suspended, expelled).

i.  Parents must be informed of evaluation – written notice – and have a right to refuse consent.

ii.  Purpose: to determine

1.  if the child is eligible for services

2.  what specific disability the child suffers from

3.  what services need to be provided.

d.  After evaluation, placement in LRE:

i.  LRE available to meet educational needs of child.

ii.  SD must ensure to maximum extent possible. that the child is educated with children without disabilities.

1.  depends on factors (see Rachel H, below, for more):

2.  Nature & severity of disability, meeting child’s needs.

e.  Substantial Protection under IDEA:

i.  Provided to all children with disabilities, education is to be appropriate and individualized, free, provided in the least restrictive appropriate setting. Provides for elaborate safeguards.

1.  Provided up to age 21.

  1. After Smith v. Robinson, EHA (IDEA) amended to permit attorney’s fees. (In Smith, family sued under EHA & Rehab Act b/c Rehab Act permitted atty fees.)

iii.  Free

iv.  Appropriate Education:

  1. appropriate in IDEA is difficult to define – varies significantly depending on the type of disability, the degree of severity, even time child has been disabled.

2.  Board of Education v. Rowley

  1. SCOTUS: deaf child who functions well without interpreters doesn’t have to require them just b/c parents want one.

b.  No substantive definition in the statute about what appropriate education is required.

  1. No obligation beyond requirement that child receive some form of specialized education. Appropriate education is provided when personalized educational services are provided. (She was advancing from grade to grade sufficiently on her own.)

c.  Personal instruction with sufficient support services to permit the child to benefit educationally from that instruction is enough.

  1. Enforced with administrative hearings first. Courts should not substitute their own notions of sound educational policy for those of the school authorities. (Rowley)
  2. Inquiry is twofold:
  3. Has the state complied with the procedures set forth in the act?
  4. Is the individualized educational program developed through the act’s procedures reasonably calculated to enable the child to receive educational benefits?
  5. Some states have set standards higher than “appropriate” – federal safeguards still apply.

v.  Related Services:

  1. To be provided when necessary for the child to benefit from special education: include transportation, speech therapy, psych services, social work, etc.

2.  Irving In. SD v. Tatro

  1. SCOTUS: child with spina bifida requires her to be catheterized to avoid kidney damage.
  2. Two issues:
  3. Whether the IDEA requires SD to provide services to Amber. (Yes)
  4. Whether Rehab Act creates the obligation. (No, so no attorney fees.)
  5. Support services are to be offered to assist child to benefit from special education. To meet the unique needs of the child!

3.  Cedar Rapids Community SD v. Garret F.

  1. SCOTUS: issue is if school district is required to provide nursing care for Garret during the day. Paralyzed from neck down.
  2. “medical services” is excluded from coverage under IDEA.
  3. Limited to doctors: rule that limits the medical services exemption to physician services is reasonable and workable.
  4. Nursing services are OK.
  5. Cost is not to be deciding factor BUT potential financial burdens may be relevant in coming to “sensible construction” of IDEA.
  6. Generally, services that enable child to remain in school during the day provide the student with the meaningful access Congress envisioned.
  7. Psychological counseling intended to be related service that the school is to provide if it’s essential to ability to benefit from special ed. (But only if without it, it would interfere with educational services.)
  8. Transportation: most expensive service provided for special education b/c of the capital expenditures involved.

vi.  Least Restrictive Environment: Mainstreaming

  1. in regular class if possible.

2.  Sacramento City Unified SD v. Rachel H.

  1. 9th Circuit: Rachel has IQ of 44; mainstreaming her would have meant moving her six times a day between two classrooms. School didn’t want to do it.
  2. Test:
  3. Educational benefits
  4. Non-academic benefits
  5. Effect on the teacher & children in the regular class
  6. Cost of mainstreaming.
  7. Burden of proof: whoever is challenging the agency decision.

3.  Murray v. Montrose County SD

  1. 10th C.
  2. Tyler has cerebral palsy, school wanted to move him to another school where he could be better helped, but parents refused. (5 blocks v. 10 miles away.)
  3. Due process hearing, appealed to administrative law judge; Murrays then filed suit, which was dismissed; they appealed.
  4. School district must give prior notice when it proposes changes to education; parent entitled to impartial due process hearing.
  5. Regs require that placement of child be as close as possible to the child’s home UNLESS IEP requires education elsewhere.
  6. Court: LRE mandate does not include a presumption of neighborhood schooling & a school district is not obligated to fully explore supplementary aids and services before removing a child from a neighborhood school – only before removing a child from regular classroom.

vii.  Non-Discrimination & Reasonable Accommodation under §504 and the ADA:

  1. Students not covered by IDEA: there’s a possibility.

a.  Doe v. Belleville Public SD.

  1. Child with AIDS;
  2. Main holding: schools can’t use fears (unsubstantiated) as basis for exclusion.
  3. Court used three part test to determine if applied to him:
  4. limited strength, vitality
  5. which adversely affects child’s performance
  6. which requires special ed & related services.
  7. Substantive Application:

a.  Wolff v. South Colonie Central School District:

  1. NDNY: child with limb deficiency; walks very painfully, slowly.
  2. Wants to go on Spanish field trip.
  3. otherwise qualified can include walking briskly – school can exclude her from this. Can’t demonstrate physical requirements of the trip.

b.  Pottgen v. Missouri State HSAA

  1. 8th C:
  2. learning disabled kid kept out of high school athletics b/c of age policy.
  3. Court:

1.  Reasonable accommodations don’t require institution to lower or substantially modify standards.

  1. not otherwise qualified.
  2. dismissive of parents’ claims b/c of emphasis on athletics over academics.

c.  Bechtel v. East Penn SD:

  1. Admin Court.
  2. Suing b/c of school facilities not accessible.
  3. Title II ADA claim; don’t have to exhaust admin remedies first, but do have to file a complaint with Dept. of Labor.
  4. Remedies:
  5. IDEA has procedural safeguards which apply whenever a child is identified, evaluated, or placed initially; when a change is proposed, or where the educational agency refuses to ID, evaluate, or place the child.
  6. state & local agencies not immune from actions under IDEA, Rehab Act, or ADA.
  7. remedies are equitable in nature; SCOTUS hasn’t ruled if damages available under IDEA.

ii.  Mechanisms:

  1. hearing
  2. parents have right to representation.
  3. If parents prevail, school must pay. (Amendment)
  4. Right to record and written findings of fact and decision.
  5. Right to have child present
  6. Decision of parents to have hearing open or closed.
  7. review of hearing may be requested of state administrative agency.

3.  if still disagreement, either party may bring an action in a state court with competent jurisdiction or in federal court.

III.  Community Activities

a.  Public Accommodations:

  1. Refers to privately operated facilities used by the public
  2. Covered under Title III of ADA.
  3. Purpose:
  4. To provide a clear & comprehensive national mandate for the elimination of discrimination against individuals with disabilities;
  5. To provide clear, strong, consistent, enforceable standards addressing discrimination;
  6. To ensure Fed Gov’t plays central role in enforcing the standards on behalf of individuals with disabilities;
  7. Invoke sweep of congressional authority…
  8. 12 categories of public accommodations including:
  9. inn, restaurants & bars, theatres, auditoriums, lecture halls, bakery, grocery stores, Laundromat, bank, pharmacy, hospital, terminal, depot, museum, library, gallery, park, zoo, amusement park, nursery, schools, day care center, homeless shelter, gymnasium, etc.
  10. Airline transportation & housing are dealt with in other legislation.
  11. Court has found that cross-country bike tour isn’t public accommodation.
  12. Three main issues:
  13. nondiscrimination
  14. reasonable accommodations
  15. barrier free designed

iv.  PGA Tour v. Casey Martin

  1. SCOTUS: ADA forbids discrimination against disabled individuals in major areas of public life, among them employment, public services, and public accommodations.
  2. Failure to make reasonable modifications is violation UNLESS
  3. Entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities (etc).
  4. ADA contemplates three inquiries:
  5. If the modification is reasonable
  6. Whether it is necessary for the disabled individual
  7. Whether it would fundamentally alter the nature of the service.
  8. Individualized inquiry must be made to determine whether a specific modification would be reasonable under the circumstances as well as necessary for that person (yet at the same time, not a fundamental alteration.)

b.  Nondiscrimination under the ADA:

  1. Anderson v. Little League Baseball, Inc.
  2. P had been on field base coach for three years; LL insisted that he was a danger.
  3. Court found that he was disabled, it was a public accommodation.
  4. To determine direct threat:
  5. Must make individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence to ascertain:
  6. The nature, duration, and severity of the risk,
  7. the probability that the potential injury will actually occur and
  8. whether reasonable modifications would mitigate the risk.
  9. Analysis can’t be based on generalizations or stereotypes.
  10. Notes:
  11. newspaper column isn’t public accommodation;
  12. not all public facilities are subject to this: eg, blind man wanted guide dog in delivery room. Court said delivery room was not public facility subject to state’s nondiscrimination in public accommodation law (state court case).
  13. generally modifications are required.
  14. Modifications of policies, practice, procedures:
  15. Title III prohibits refusal to make reasonable modifications:
  16. example, refusal to accept a state ID card by business that requires driver’s license to write checks.
  17. auxiliary services such as interpreters – found to be modifications necessary to make professional exam test prep available.
  18. Roberts v. Kindercare:
  19. 4 year old needed one-on-one care; Kindercare provides group care.
  20. Court: ADA doesn’t require an entity offering a public accommodation to endure an undue burden to provide its service to person with disability.
  21. Here, Kindercare would have to hire someone full-time and accommodation would be undue burden b/c of cost, administrative burden.

d.  Architectural Barriers: