Understanding the ADA

The Blog of William D. Goren, J.D. LL.M. - Of Counsel, Kitchens New Cleghorn, LLC

Title V

2017 Understanding the ADA Greatest Hits

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It is time for the top 10 plus three of 2017. For the most part, the greatest hits, but not of all of their order of popularity stayed the same from 2016 to 2017, except for one entry (negligence per se dropped out of the top 10 and was replaced by the history of ADA and ADA related cases at the United States Supreme Court). In my greatest hits box, you will find two blog entries that I believe are incredibly important, not that all of my blog entries aren’t important:-), and deserve to have special mention even if they are not a greatest hit. Also, you will find an entry that is sure to be a greatest hits in 2018 since it has to be read with another blog entry that is already a greatest hit. In addition, you will find the top 10 for 2017. So, this should be a total of 13 blog entries in my greatest hits box and they are:

+3

I get too many phone calls from students in higher education, particularly graduate schools, where the college or professional school seems to not have a clue about their ADA compliance obligations. So, I always list this blog entry, which discusses an ADA compliance checklist for places of higher education.

A critical principle with the ADA is that the ADA is a duty that cannot be delegated as seen here. But, be sure to read this blog entry as well as it’s complicated.

One of the greatest hits is just what is the statute of limitations for ADA claims. However, an even more important question perhaps, is when does that statute of limitations begin to run, which we discussed just last week in this blog entry.

Turning to the Top 10 of 2017 and they are in reverse order:

10.  Is causation under the ADA “but for,” or something else? This blog entry discusses that question. (907 views and sixth place last year).

9.  Whether public colleges and public university are immune from suit on the grounds of sovereign immunity is discussed here. (1125 views and eighth place last year).

8.  How does the ADA deal with temporary disabilities is discussed in this blog entry. (1246 views and third place last year).

7.  In order to file suit under title I of the ADA, one has to exhaust administrative remedies. This blog entry discusses what that means. (1351 views and 10th place last year).

6.  Just what is the difference between a service dog and a therapy dog? See this blog entry. I should note that the issue of service dogs is something you will find numerous blog entries on. (1430 views and fifth place last year).

5. Suing a state court system for violations of the ADA is extremely difficult, but it can be done as discussed here. (1496 views and seventh place last year).

4. July 2016 blog entry discussing ADA and Related Cases at the Supreme Court and What is Next. (2108 views and new this year).

3.  What do you have to show in order to get compensatory damages under title II of the ADA is discussed in this blog entry. (2144 views and second place last year).

2.  Just what is the applicable statute of limitations for ADA claims is discussed in this blog entry. (2774 views and fourth place last year).

 

AND THE WINNER IS…

It is not even close for the second year in a row. This particular blog entry, which discusses whether you can get compensatory and punitive damages in ADA retaliation cases, has more than 1.5 times the views of the second-place finisher coming in at 4,406 views.

Merry Christmas, Happy Hannukah, Happy Holidays, and Happy New Year to all!

 

See you next year!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

Sovereign Immunity and Title II and III of ADA: This Case Should be Appealed

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Today’s case, Glueck v. National Conference of Bar Examiners illustrates the perils of proceeding pro se. The case is certainly worth appealing to the Fifth Circuit. However, the plaintiff is now proceeding with a constitutional challenge to various statutes, which I don’t think will go anywhere. At any rate, the case bears discussing and it also bears discussing why I believe the case should be appealed. So, the blog entry as usual is divided into categories and they are: facts; court’s reasoning national conference of bar examiners; court’s reasoning title II; court’s reasoning title III; why the case should be appealed; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts:

The plaintiff is a third-year law student with ADHD, reading and comprehension impairments, and dyslexia. He received accommodations while pursuing a graduate degree and on law school exams. However, when it came time to take the multistate professional responsibility examination, the national conference of bar examiners, which administered the exam, denied his request for time-and-a-half, audio CD, and a non-Scantron answer sheet. Nevertheless, he took the exam anyway and failed. He ran into a similar issue with the Texas bar, which also denied him accommodations. He brought suit under titles III and V against the National Conference Of Bar Examiners and under title II,III, and V against the Texas Board of Law Examiners.

 

II

Court’s Reasoning against National Conference of Bar Examiners

 

With respect to the interference and retaliation claims, the court said that plaintiff made no factual allegations as to how the National Conference Of Bar Examiners retaliated or interfered with his exercise or enjoyment of his rights. For that matter he didn’t state any allegations at the Hollywood discriminated against because he opposed any act or practice of the National Conference Of Bar Examiners. Accordingly, the complaint failed under Iqbal and Twombly. However, the court said that the §12189 (the portion of the ADA that goes to discrimination in standardized examinations), claim survived.

III

Court’s Reasoning Against the Texas Board of Law Examiners

  1. The right to practice law is not a fundamental right and so Tennessee v. Lane does not apply.
  2. Reickenbacker v. Foster, 274 F.3d 974 (5th 2001), is the applicable case. That case said that title II of the ADA outside of fundamental rights, exceeds the enforcement clause of the U.S. Constitution and therefore, does not forcibly abrogate sovereign immunity.
  3. The court acknowledged the issue of sovereign immunity and title III is an open question since title III cases usually involve private entities. Nevertheless, the possibility of sovereign immunity does apply since a governmental entity is administering the exam. Again, since a fundamental right is not involved, title III of the ADA goes beyond the enforcement clause of the 14th amendment, and therefore, sovereign immunity cannot be forcibly waived.
  4. The court allowed the title V claim to proceed saying that it was not aware of any case law saying that Congress invalidly abrogated sovereign immunity in enacting title V of the ADA

IV

Why the Case Should Be Appealed

  1. The court’s reliance on Reickenbacker makes little sense. That case was decided three years before Tennessee v. Lane and five years before United States v. Georgia.
  2. Tennessee v. Lane used a variety of language, fundamental right being just one of them, to talk about how persons with disabilities were in a higher equal protection class when it came to the court system. At no point did it say that the decision only applied to fundamental rights. In fact, it said title II sovereign immunity with respect to persons with disabilities was on a case by case basis.
  3. No mention whatsoever is made in the opinion of United States v. Georgia, which held that if a situation rose to the level of a constitutional violation, then sovereign immunity was waived, but that case specifically did not address the question as to what would happen if there was disability discrimination that did not rise to the level of a constitutional violation. There are many cases out there (see ¶ 1 of takeaways § below), that say sovereign immunity has been validly waived even though fundamental rights are not involved.

V

Takeaways:

  1. The case should definitely be appealed. The court’s analysis of Tennessee v. Lane and its omission of United States v. Georgia are particularly troublesome. Also, sovereign immunity can be forcibly waived even where fundamental rights are not involved, such as in this case: Association for Disabled Americans v. Florida International University, 405 F.3d 954 (11th 2005). Finally, sovereign immunity does not apply to injunctive and declaratory relief actions.
  2. To my mind, this was a case that the plaintiff should have been able to get pass sovereign immunity on, or at least make a solid argument on. What it illustrates is the danger of proceeding pro se. Considering the nature of my practice, I am fully aware of how difficult it is for persons with disabilities to get competent representation considering the resources they often lack. That leaves persons with disabilities having to turn to law schools, non-profit disability rights organizatons, protection and advocacy organizations (which vary widely in what they do and how they do), and pro bono departments of large firms to vindicate their rights.

Proving up ADA Interference Claims and Other Questions

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Today’s case is from the Seventh Circuit, Frakes v. Peoria School District No. 150. This case is the first federal case I am aware of dealing with how do you go about proving a prima facie case for interference under the ADA. The ADA at 42 U.S.C. §12203 contains both retaliation and interference claims. The blog entry is divided into several categories and they are: where do you see interference claims; just how do you prove it; just what is purposeful discrimination under the ADA; aren’t there really just three elements to interference; other issues; and takeaways. The reader of course is free to concentrate on any or all of the categories, but I think you’ll want to read the whole thing.

 

II

Where Do You See Interference Claims

I have seen interference claims come up particularly with respect to higher education. Oftentimes, what happens is disability services comes up with a plan for the person with a disability, and then, either the bureaucracy or individual faculty members interfere with that plan. In those situations, interference claims may arise.

III

Just How Do You Prove It?

Until our case of the week, it was very unclear as to how you would prove it. When I have faced this situation, I have relied on the Fair Housing Act because there were not any ADA cases on point. Now, we have an ADA case on point. The Seventh Circuit said that proving up this kind of case means: 1) the plaintiff was engaged in activity statutorily protected by the ADA; 2) the plaintiff was engaged in, or aided or encouraged others in, the exercise or enjoyment of ADA protected rights; 3) the defendant coerced, threatened, intimidated, or interfered on account of her protected activity; and 4) the defendants were motivated by an intent to discriminate.

In higher education, it typically works like this. The plaintiff requests reasonable accommodations from disability services, disability services comes up with a plan, and then a faculty member or perhaps someone in the bureaucracy blocks the implementation of that plan or blocks the ability of that plan to be carried out effectively. So: requesting a reasonable accommodation is statutorily protected activity under the ADA; plaintiff would then be engaged in the exercise or enjoyment of ADA protected rights; the adverse reaction of the bureaucracy and/or faculty members to the request is then done on account of her protected activity; and then you have to prove intent.

IV

Just What Is Purposeful Discrimination under the ADA?

We have discussed intentional discrimination under the ADA before, such as here (purposeful discrimination), and here (deliberate indifference). In most higher education interference cases, it would seem fairly easy for either of these standards to be met.

V

Aren’t There Really Just Three Elements to Interference?

It seems to me that elements one and two are the same. That is, element number two is automatically satisfied if element one is satisfied.

VI

Other Issues

There are other issues created by interference claims including:

  1. Can you get compensatory and punitive damages in interference claims. The answer to that question will be the same as the answer for retaliation, which we discussed here, considering the layout of 42 U.S.C. §12203.
  2. Just when does the statute of limitations begin to run, especially since the Office of Civil Rights, if the student has elected to pursue that, can take quite a bit of time. The answer to this question very much depends upon the place you are in. I have seen courts go for constructive discharge. I have also seen courts say that each time a request for an accommodation is made, the clock starts to run at that moment in time, such as in the blog entry discussing this case. Similarly, if there is an interference situation, the clock will start to run at the moment interference occurs. I will say that the federal courts do not favor continuing violations.

VII

Takeaways:

  1. Training, training, training by a knowledgeable person is really important. Especially with faculty members, they often feel they have complete control over their classrooms. That isn’t the way it rolls.
  2. If you have different schools at your university, make sure each school has a dedicated 504/ADA person assigned to it so that the ADA/504 person understands the needs of that particular school.
  3. Get lawyers involved when necessary.
  4. On the plaintiff’s side, you want to get an attorney as fast as possible since every time an accommodation request is made or interference occurs, the statute of limitations starts to run unless you are in a constructive discharge jurisdiction, of which there aren’t many. This is particularly the case since administrative processes, whether they are internal or external, can take considerable amount of time and the statute of limitations clock is running in the meantime.
  5. If you are on the University side, make sure you have done the two step, which we have discussed here.
  6. Just what is causation for interference claims? Is it but for or mixed motive (see this blog entry)? We do know that causation for retaliation claims is but for and interference often gets put in the same box as retaliation, but the fact remains that retaliation and interference are separate statutory provisions in 42 U.S.C. §12203. Also, element four of the prima facie case discussed above, seems to leave room for argument that mixed motive could be in play.

Of course, if you have any questions about this and/or are seeking training in this area, feel free to get in touch with me.