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Olmstead

Using Common Sense for Service Animals and Essential Eligibility Requirements

May 21, 2018 by William Goren 7 Comments

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In law school, there is a saying that a student goes in with common sense and comes out with common law. However, there is still room for common sense in the law. Today’s blog entry is actually a two-for-one: service dogs with respect to title II and title III, and essential eligibility requirements. As usual, the blog entry is divided into categories and they are: common sense comes to service dogs; common sense and essential eligibility requirements introduction; Coleman v. Zatechka facts; court’s reasoning as to why plaintiff was qualified/otherwise qualified; and takeaways. The reader is free to focus on any or all of the categories.

I

Common Sense Comes to Service Dogs

On Friday of last week, a group of people with the Association of Higher Education and Disability were in town to do training. I have been a member of that group for several years now. The group focuses on helping people in disability services at colleges and universities be the best they can be. At that meeting were: Paul Grossman, Esq., an attorney with over 40 years of experience with the Office of Civil Rights of the US Department of Education now retired from OCR and now on his own; Jamie Axelrod, current president of AHEAD and head of Disability Services for the University of Northern Arizona; L. Scott Lissner, past president of AHEAD and head of Disability Services for The Ohio State University; Mary Lee Vance, Interim Director of Disability Services at Orange Coast College and past board member of AHEAD. Naturally, we got on the topic of service dogs. The people around the table without exception took the position that follow-up questions are permitted when it comes to ascertaining whether a dog is a service animal under title II and title III of the ADA when the disability is not obvious. Since there is nothing in the regulations suggesting follow-up questions are allowed, the question became what reasoning supports such a view. The answer made a lot of sense. That is, title II and §504 of the Rehabilitation Act by case law require an interactive process. Accordingly, dismissing a dog out of hand when the answers are not clear means you are not engaging in the interactive process. So, narrowly focused follow-up questions make sure that the requested accommodation is being denied properly after engaging in the interactive process.

Also, from a preventive law point of view, this approach makes a great deal of sense. It shows the person with a disability that the entity is trying to work with the individual to respect their needs and at the same time comply with the law. So, if after the narrowly focused follow-up questions, the animal winds up being a service animal, then everyone wins. If after those questions, the animal is not a service animal, then you have justifiably denied the animal, and most people will walk away with the notion that they have been treated fairly even if it didn’t work out for them. Note, if it is an emotional support animal rather than a service animal, then it still may be possible to have that animal on campus under the Fair Housing Act and under §504 of the Rehabilitation Act.

Finally, there was some talk around the table as to whether §504 mandates allowing emotional support animals in places other than the dormitories. Apparently, the §504 regulators have intimated as much, though nothing formal exists. It is hard to believe with all the blowback with emotional support animals of late, anything formal to that effect would be coming online soon. I also don’t see how such a view is consistent with the title II and title III DOJ regulations.

II

Common Sense and Essential Eligibility Requirements Introduction

AHEAD also has some great listservs. On one of those, the question came up as to whether a person with a disability could insist on having a roommate in the same way as any other college student without a disability could have. When I saw that, I responded with this: 42 U.S.C. §12182(b)(1)(A)(ii) provides:

“It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.”

III

Coleman v. Zatechka Facts

Another individual on the listserv posted Coleman v. Zatechka, 824 F. Supp. 1360 (D. Neb. 1993).

The plaintiff was a 21-year-old student attending the University of Nebraska Lincoln and had cerebral palsy. She needed a personal attendant to assist her with dressing, showering, and toileting. Since she wanted a roommate to get the most out of the college experience, she completed and submitted the residence housing contract application indicating that she wanted a double room in a certain dormitory and preferred a non-smoking roommate. When she requested a double room and did not specify a particular roommate, she expected that her name would be placed in the pool of roommate candidates, and then she would be randomly assigned a roommate by the University Nebraska Lincoln housing department per their usual procedure. The Residence Hall Handbook said that roommate assignments would not be made on the basis of handicap (remember, this was 1991). Finally, she was admitted to the University, and there was no dispute that since she completed and submitted the residence housing contract application requesting a double room, she met all the requirements necessary to be randomly assigned a roommate.

It turns out that University Nebraska Lincoln had a policy saying that students with disabilities or special medical considerations needing personal attendant service, nursing care, or trained animal assistance would not get a roommate absent a mutual room request. The policy was a blanket policy with no individualized inquiry made when a student with a disability requested a roommate. That is, no individualized inquiries were made with respect to the extent of the student’s disability, the dimension of any equipment necessitated by the disability, or the number, duration and nature of any necessary personal attendant visits.

The University then did all kinds of things to try and get someone to be the student’s roommate. None of them worked. The University also repeatedly told plaintiff that she was free to have a roommate, but that it would not require another student to be her roommate. So, plaintiff originally filed a complaint with the United States Department of Education Office of Civil Rights and then withdrew it in favor of filing the lawsuit.

IV

Court’s Reasoning As to Why Plaintiff Was Qualified

  1. The only academic requirement for participation in the roommate assignment program is admission to the University.
  2. The only nonacademic criteria essential for participation in the roommate assignment program is submission of a completed residence hall contract application requesting a double room and not specifying a particular roommate.
  3. The defenses raised by the University are subject to the ADA’s screen out provisions, which can be found at 28 C.F.R. §35.130(b)(8).
  4. Defendant’s argument that plaintiff uses more than an equal amount of space in a double room than a student without a disability doesn’t wash because: 1) no individualized inquiry was conducted to determine the amount, size, or location of the equipment used by the plaintiff, rather the defendant simply made an assumption. The ADA prohibits using assumptions rather than facts and conclusions made from an individualized inquiry; 2) defendant’s challenged policy allowed students in wheelchairs to have roommates so long that they did not require attendant care or a trained animal. Accordingly, the wheelchair utilizing too much physical space argument simply doesn’t make any sense; and 3) the concern about the utilization of physical space is not a concern applied to students without disabilities. Accordingly, the equal amount of space is not necessary to the roommate assignment program and was not an essential eligibility requirement that a student must meet in order to be qualified to participate in the program.
  5. Defendant’s argument that plaintiff cannot receive frequent daily visitors that might disrupt a roommate’s solitude doesn’t wash because: 1) plaintiff’s personal attendant visits are not unusually disruptive. Two of the three daily visits are relatively brief with a good portion of those visits involving the personal attendant and the plaintiff not even being in the dormitory room. Also, the daily visits are scheduled, predictable, and amount to nothing more than assisting plaintiff in the daily routine of dressing, showering, and toileting, which is something all roommate do. No medical care is provided during the visits and no evidence existed as to why the roommate could not remain in the room during the entire visit if she wished; 2) any such disruptions are common disruptions present in all roommate situations regardless of whether roommate has a disability. It isn’t unusual for roommate to awaken or retire at different times due to class schedules or personal preference. Further, the nature of dormitory living requires roommates needing to be tolerant of each other’s sleeping habits and accept the fact they are not always operating on identical schedules; 3) roommates regardless of disabilities are required to tolerate frequent visitors. That is, frequent daily visit do not uniformly disqualify students without disabilities from participation in the roommate assignment program and they should not disqualify a plaintiff with a disability from participation in the roommate assignment program; 4) plaintiff has some degree of flexibility as to when and where the attendant care visits take place. For example, she was willing to modify the times her personal attendant arrived so her roommate was less likely to be disturbed by the visit. Accordingly, disruption of solitude cannot properly be considered an essential eligibility requirement that a student must meet in order to participate in the roommate program.
  6. If defendant’s essential eligibility requirements arguments were actually intended to screen out undesirable roommate candidates using too much space or having frequent daily visitors, one would expect to see those requirements apply to all students are asking for an assigned roommate, which is not the case. So, the additional requirements are not essential to the roommate assignment program. Instead, they are nothing more than an attempt to legitimize a policy of excluding students with disabilities from the roommate assignment program.
  7. A blanket policy of excluding certain persons with disabilities from the roommate program violates both the Rehabilitation Act and the ADA.
  8. While a school might have a policy allowing students with disabilities to live in single rooms because of being uncomfortable with an assigned room due to attendant care visits, nothing in the Rehabilitation Act or the ADA requires a plaintiff to accept such accommodations. Further, even where accommodations have been made, qualified individuals with disabilities have to be given the option to participate in regular programs if they choose. That is, separate program designed to provide a benefit to persons with disabilities cannot be used to restrict the participation of persons with disabilities in integrated activities. See this case for example. That is, plaintiff cannot be required to accept such accommodation simply because they exist. Rather, she has to be given the option of participating in the regular roommate assignment program if she so desires.
  9. Not requiring students without disabilities to room with students with disabilities fosters the very attitudes and stereotypes about persons with disabilities that the ADA is designed to eliminate. In other words, that policy lends support to the idea that students with disabilities are less desirable and that it is okay that others not be required to live with them, which then places less value on the human worth of individuals with disabilities because of their disabilities. It also violate the ADA’s purpose of providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.
  10. In footnote 15 of the opinion, the court noted that since the Rehabilitation Act applies to all operations of a college, university, or postsecondary institution, the University’s practice of randomly assigning roommate to students requesting double rooms was a program or activity within the meaning of the Rehabilitation Act.

V

Takeaways:

  1. I am persuaded that narrow follow-up questions to whether an animal is a service animal are permissible. However, the questions have to be narrowly focused. It really isn’t all that different than requesting narrowly focused information to establish that an employee has a disability under title I of the ADA. The advantage of the narrowly focused approach is that it gives everyone the opportunity to definitively assess whether the animal is a service animal. It also makes it easier for businesses to properly assess whether the animal is a service animal as asking only those two questions without follow-up will not get you a lot of information. So, how would that play out in practice? Let’s say someone shows up with an animal and does not have an obvious disability. You ask the standard two questions. The person responds that, “the animal is necessary because of a disability and that the animal keeps him calm.” The reply to that question is a pass as to the first, but a fail as to the second. So, a follow-up question could be something like, “what work or task has the animal been trained to do that keeps you calm?” It doesn’t have to be that particular question, but the point is that the question is a narrowly focused follow-up question.
  2. Coleman has been cited favorably over the years. What is refreshing about the decision, is that it uses a lot of common sense about the college environment to assess essential eligibility requirements.
  3. Coleman also stresses the importance of paying attention to title II’s final implementing regulations screen out provisions.
  4. Setting up a separate program for persons with disabilities may or may not run afoul of the screen out provisions. Even so, if a person wants to participate in the same program as students without disabilities, then that needs to happen unless you can show an undue burden or a fundamental alteration. I suppose you could try to show that the student is not qualified/otherwise qualified as the defendant’s tried to do in this case, but that isn’t going to be easy to accomplish. It also raises the importance of knowing what your essential eligibility requirements are and making sure they don’t unnecessarily screen out persons with disabilities. See this blog entry for example.
  5. Graham Spanier was president of the University of Nebraska Lincoln at this time. He then moved on to Penn State…..
  6. Blanket policies are never a good idea. See this blog entry for example.
  7. The individualized inquiry is the heart of the ADA and the Rehabilitation Act.
  8. Inclusion efforts must include persons with disabilities.
  9. What about therapy animals? Are they service animals or emotional support animals? Well, it may be neither. However, for purposes of deciding whether the therapy animal can go anywhere a service animal can go, it would have to be determined whether it is a service animal. So, the answer is depends. Therapy animals do get training, but are they engaged in recognition and response? If so, then the therapy animal is a service animal. Also, remember that service dogs can be situational. For example, my dog is a service dog, but only in the house.

Filed Under: ADA, Fair Housing Act, Final Federal Regulations, Title II, Title III Tagged With: §504, 28 C.F.R. §35.130, 42 U.S.C. §12182, ADA, AHEAD, blanket policies, Coleman v. Zatechka, Department of Justice final regulations, Determining essential eligibility requirements, emotional support animals, essential eligibility requirements, fundamental alteration, interactive process, LC by Olmstead v. Zimring, Olmstead, permissible questions, rehabilitation act, service animals, Service dogs, therapy dogs, title II, title III, two questions, undue burden

A Donald Trump Administration and the Rights of Persons with Disabilities

November 12, 2016 by William Goren Leave a Comment

Before moving on to the post of the week, you will notice that the blog has a new look and feel. I upgraded the blog so that it is better able to be used on mobile devices and more importantly the upgrade increases its ability to be accessible. Besides the look, you will see that everything is in the same place. So, users should not be concerned. Now onto the blog entry of the week!

With Donald Trump’s election to the presidency of the United States, the legal blogoshere has lit up with what might you expect from a Trump administration with respect to whatever specialty the blogging lawyer has. So, I am going to jump on that bandwagon.

First off, we don’t know what tone a Trump administration will take with respect to the rights of persons with disabilities. His record was such that he fought hard against ADA suits filed against his businesses, and then there was the reporter episode. That said, he might argue that more businesses should fight hard against ADA suits when necessary, and he has argued that the reporter episode was misconstrued. So, what follows is pure speculation on my part. That said, if one were to speculate using the principle that President Trump would be all about business-small and large- and what is best for business is good for everyone else, you could extrapolate certain things from that. Of course, this is a gross oversimplification, and again, we simply do not know the direction a Trump administration will go. Nevertheless, what follows is some food for thought:

  1. The Department of Justice pushed back its Title II and III regulations with respect to what constitutes an accessible website. I think those regulations are likely dead in the water. I have seen defense lawyers argue that the regulations are needed to create certainty for their clients. However, I think certainty is overrated in this situation. The standard for title II and title III is meaningful access. Being a businessperson, a President Trump might decide that it is better for businesses to have maximum flexibility to figure out how to allow its customers meaningful access to websites rather than hamstring businesses by complicated regulations. Sure, that might lead to lots of individual litigation, but the counter argument to that is that the ADA was meant to deal with individual situations. It also leads to the question as to what a Department of Justice in a Trump administration might insist upon with respect to settlement terms vis a vis the standard to use for Internet accessibility, assuming they elect to get involved in that kind of litigation in the first place.
  2. The Department of Justice and disability rights advocates have gotten very aggressive with respect to Olmstead enforcement where states are doing things with their budget that increase the risk of persons with disabilities being institutionalized. Whether the Supreme Court ever envisioned Olmstead being used in that way, as a sword, is something we discussed here. It is possible that a Trump administration would move away from enforcing Olmstead this way and just focus on situations where persons with disabilities are in institutions and are looking to get served in the community. I suppose it is also possible that they might argue in friends of the court briefs that it is not proper for disability rights advocates to use Olmstead as a sword.
  3. A Trump administration might get out of the title II enforcement business altogether per this blog entry.
  4. I recently read that there was a committee of folks working on updating the Air Carrier Access Act regulations to see if an agreement cannot be reached by all the parties. I read that if the process broke down, proposed regulations might be in the offing. The election of President Trump changes the bargaining dynamics so that the airlines might conceivably try to drive a harder bargain with respect to how far they want to go to accommodate persons with disabilities. For example, airlines might insist on narrowing just what kind of animals can accompany a person with a disability on the plane.
  5. One wonders if the affirmative-action regulations for persons with disabilities put out by OFCCP will even be defended by a Trump administration. The thinking being that such rules and regulations are too onerous for business and in any event, may not be defensible per this blog entry.
  6. With respect to architectural barriers and title III of the ADA, one wonders if a Trump administration would not get behind an effort to require notice to the business before being allowed to proceed with a title III architectural barriers action in the courts. California recently passed such a law. Since California did such a thing and California voted overwhelmingly for Hillary Clinton, that might give a President Trump cover for such a law. Whether President Trump chooses to use up political capital to enact such a law is anyone’s guess, but it makes sense that a Trump administration would look favorably on such legislation.
  7. There will be a new Supreme Court Justice, and it will not be Merrick Garland. Impossible to say what a new Justice would do with respect to the rights of persons with disabilities. Keep in mind, that when it comes to persons with disabilities, with rare exception (see next paragraph), Justice Kennedy has not been the swing vote on close decisions involving the rights of persons with disabilities.
  8. An area that Justice Kennedy will definitely be a swing vote on with respect to the rights of persons with disabilities is in the area of causation outside of the retaliation context. As discussed in this blog entry, there may be room for argument as to what is the standard for causation with respect to disability discrimination claims outside of the retaliation context. Scalia and Kennedy, the Kennedy view discussed here, may have been coming from very different views on that. President Trump is on record as saying that he wants a Justice in the mode of Scalia, but of course that doesn’t mean such a Justice will always follow what Justice Scalia would have done.
  9. Would a President Trump Department of Justice ask the United States Supreme Court to attack head-on just what are the obligations of the police when it comes to dealing with persons with mental health issues, as discussed in this blog entry.
  10. President Trump wants to repeal the Affordable Care Act, though he wants to keep the pre-existing condition coverage mandate and the ability to cover children 26 years or younger. That has two implications. First, the Affordable Care Act has requirements for data collection with respect to patients with disabilities. Second, the effective communication rule in the Affordable Care Act goes beyond what the Rehabilitation Act requires by adopting the effective communication regulations for title II of the ADA as the standard.
  11. Might a President Trump administration be receptive to claims that title II of the ADA goes beyond the enforcement clause of the equal protection clause or as incorporated into the due process clause? (See this blog entry for example).
  12. Not sure what a President Trump administration would do with respect to how far a school has to go to meet its obligation under IDEA, a case currently pending before the United States Supreme Court.
  13. Republicans for years have talked about getting rid of the Department of Education. Hard to believe they could pull it off. If it is possible, that would have huge ramifications on disability advocacy with respect to students discriminated against by educational institutions. While I don’t feel the need to exhaust administrative remedies with respect to the Department of Justice (process takes too long and Department of Justice involvement too uncertain), I do believe that exhausting administrative remedies with the Office of Civil Rights of the US Department of Education whenever possible is very valuable. Even if the Department of Education is not eliminated, one wonders what priorities the Office of Civil Rights will have in a Trump administration.
  14. The transgender case currently before the United States Supreme Court with respect to bathrooms has huge implications in the ADA arena. The issue there is just how much deference should be given to guidances from agencies that do not go through the rulemaking process, an issue we discussed in this blog entry. On the one hand, President Trump has said that he doesn’t much care what bathroom a transgender person uses. On the other hand, just how far regulatory agencies can go outside of the rulemaking process has profound implications for business, and it is unclear which way that goes. That is, such actions could be argued as in need of policing, but on the other hand, they do help bring some degree of certainty for clients. Expect the new Supreme Court Justice to play a critical role in answering this question.

Again, all of this is pure speculation and is certainly based upon insufficient information. Nevertheless, wanted to throw it out there as food for thought as lawyers are always trying to anticipate the future for their clients.

Filed Under: ADA, Constitutional law, Federal Cases, Final Federal Regulations, General, Guidances, IDEA, Proposed Federal Regulations, Rehabilitation Act, Title I, Title II, Title III, Title V Tagged With: ADA, Affirmative-action, affordable care act, air carrier Access act, architectural barriers, causation, City and County of San Francisco v. Sheehan, Department of education, Department of Justice, Donald Trump, enforcement clause of the equal protection clause, IDEA, Internet accessibility, OFCCP, office of civil rights, Olmstead, Perez v. mortgage bankers Association, retaliation, substantive due process, title I, title II, title II enforcement, title III, Title V

ADA and ADA Related Cases at the Supreme Court: Where They Have Been and What Is Next

July 8, 2016 by William Goren 6 Comments

Did you know that persons with disabilities are undefeated at the Supreme Court when it comes to title II and title III matters? It’s true.

Let us explore the ADA and ADA related cases that have been before the United States Supreme Court since the ADA went into effect. If I have this figured right, three cases are a split decision; five cases are wins for persons with disabilities when it comes to title I matters; seven cases are losers for persons with disabilities when it comes to title I matters; five cases are winners for persons with disabilities in title II matters with no losses; three cases are winners for persons with disabilities in title III matters with no losses; and two cases involving remedies are losers for persons with disabilities with a third being a split decision. Before we break it down, let me explain the categories for this blog entry and they are: employment cases; title II; title III; split decisions; remedies; why this exercise (a discussion of the two disability rights cases the Supreme Court just agreed to hear); and conclusions. As is usual, the reader is free to focus on any or all of the categories. Now, to break it down:

I

Employment Cases

  1. Cleveland v. Policy Management Systems Corporation, 526 U.S. 795. A win for persons with disabilities with the court holding that an SSDI filing does not automatically prevent a person from filing an ADA claim later.
  2. S. Airways, Inc. v. Barnett, 535 U.S. 391. A loss for persons with disabilities with the court holding that a person with a disability did not have the right to bump a more senior person when a seniority system was present.
  3. Raytheon v. Hernandez, 540 U.S. 44. A loss for persons with disabilities with the court holding that a facially neutral policy applied in a uniform way can be used to escape ADA liability.
  4. Wright v. Universal Marine Service Corporation, 525 U.S. 70. A win for persons with disabilities with the court holding that there was no presumption of arbitrability with respect to ADA claims, and where an arbitration clause said that ADA claims would be subject to the clause, such a clause must be clear and unmistakable.
  5. Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356. A loss for persons with disabilities with the court holding that persons with disabilities when it comes to employment are in the rational basis class and therefore, sovereign immunity applied to title I suits against state entities.
  6. Toyota Motor Manufacturing, Kentucky v. Williams, 534 U.S. 184. A loss for persons with disabilities with the court holding that a person was substantially limited in the major life activity of performing manual tasks if they were severely restricted or prevented from performing that major life activity. It also held that a major life activity was one of central importance to daily lives. Keep in mind, this decision was overruled by the amendments to the ADA.
  7. Albertson’s v. Kirkingburg, 527 U.S. 555. A loss for persons with disabilities. One of the three Sutton trilogy cases holding that mitigating measures must be factored into the calculus of whether a person has a disability. Keep in mind, this decision was overruled by the amendment to the ADA or not… (but see this blog entry).
  8. Sutton v. United Airlines, 527 U.S. 471. See paragraph 7 immediately above.
  9. EEOC v. Waffle House, 534 U.S. 279. A win for persons with disabilities saying that the EEOC had an independent right to bring a claim regardless of whether the plaintiff has signed an agreement to arbitrate.
  10. Murphy v. UPS, 527 U.S. 516. See paragraph 7 of this section.
  11. Clackamas Gastroenterology Associates PC v. Wells 538 U.S. 440. A win for persons with disabilities with the court holding that it depends upon the facts as to whether someone who may be a partner or owner of the business in name is actually an employee for purposes of the ADA.
  12. EEOC v. Abercrombie and Fitch 135 S. Ct. 2028. Not an ADA case at all but containing language favorable to persons with disabilities (see this blog entry).

II

Title II

  1. Tennessee v. Lane, 541 U.S. 509. A win of sorts for persons with disability with the court holding that sovereign immunity can be forcibly waived with respect to non-employment suits against state entities depending upon the facts of the case.
  2. Olmstead v. L.C. by Zimring, 527 U.S. 581. A huge win for persons with disabilities with the court holding that persons with disabilities have a right to be served within the community.
  3. S. v. Georgia, 546 U.S. 151. A win for persons with disabilities holding that a showing of constitutional violations waives sovereign immunity.
  4. Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206. A win for persons with disabilities with the court holding that the ADA applies to prisons.
  5. City and County of San Francisco v. Sheehan, 135 S. Ct. 1765. A win for persons with disabilities as it acknowledges that title II of the ADA applies to everything that a public entity does. It also remanded the case for ADA proceedings.

III

Title III

  1. Bragdon v. Abbott, 524 U.S. 624. A win for persons with disabilities holding that HIV positivity is a disability under the ADA and that a dentist had to serve such an individual absent a direct threat.
  2. PGA Tour v. Martin, 532 U.S. 661. A big win for persons with disabilities holding that the ADA applies to professional sports and containing lots of favorable language for persons with disabilities.
  3. Spector v. Norwegian Cruise Lines, 545 U.S. 119. A win for persons with disabilities with the court holding that foreign flag cruise ships were subject to the ADA within certain limits.

IV

Split Decisions

  1. Chevron v. Echazabal, 536 U.S. 73. A split decision because the court found in favor of the EEOC but against the person with a disability when it held that a direct threat defense applies to the self as well as to others.
  2. Barnes v. Gorman, 536 U.S. 181. A split decision with the court finding that compensatory damages against state entities are available under title II of the ADA and the Rehabilitation Act but not punitives.
  3. University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517. A split decision with the court holding that retaliation requires but for causation but containing very favorable language with respect to causation in non-retaliation ADA claims.

V

Remedies

  1. CRST Van Expedited v. EEOC. A non-ADA case, but a loss for persons with disabilities with the court expanding the possibilities for a defendant to get attorneys fees.
  2. Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources, 532 U.S. 598. A loss for persons with disabilities with the court holding that prevailing party means a judgment on the merits or a consent decree and rejecting the catalyst theory.

VI

Why This Exercise?

  1. Supremes agreed to hear two cases last week involving disability rights.
  2. The first case the Supreme Court decided to hear is the case of Fry v. Napoleon Community Schools, 788 F.3d 622 (6th 2015). In that case, the Sixth Circuit held that the IDEA exhaustion requirement had to be construed very broadly so as to preclude the plaintiffs from pursuing an ADA/Rehabilitation Act claim before IDEA exhaustion was completed. There was a vigorous dissent in that case. I have previously discussed this issue in this blog entry and in this blog entry. Whether this case is viewed as a win or a lose for persons with disabilities depending upon its decision, entirely depends upon what your view of IDEA is v. § 504/ADA. The two laws have very different philosophies and very different approaches to resolving differences.
  3. The second case is Ivy v. Williams, 781 F.3d 250 (5th 2015). This is an interesting case. I am not aware of a Circuit court split on this one.
    1. Facts in Ivy: In this case, in Texas, individuals under the age of 25 cannot obtain driver’s licenses unless they submit a driver education certificate to the Department of Public Safety. Driver education certificates are only available from private driver education schools licensed by the Texas Education Agency. The plaintiffs, all deaf, contacted a variety of Texas Education Agency licensed private driver education schools, all of which informed the named plaintiffs that the schools would not accommodate them. As a result, the plaintiffs cannot obtain driver education certificates and therefore, cannot obtain driver licenses. A deafness resource specialist with the Texas Department of Assistive and Rehabilitative Services informed the Texas Education Agency of the inability of the deaf individuals to receive driver education certificates. However the Texas Education Agency declined to intervene, stating that it would not required to enforce the ADA and that it would not act against the private driver education schools unless the United States Department of Justice found that the schools had violated the ADA. The deafness resource specialist filed a complaint against the Texas Education Agency with the Department of Justice, which the Department of Justice apparently dismissed. The plaintiff then filed a lawsuit in federal district court against the Texas Education Agency and a private driver education school requesting injunctive and declaratory relief against both parties under title II of the ADA and the Rehabilitation Act. Interestingly enough, the driver education schools themselves were not sued for violating title III of the ADA. All of the judges on the panel agreed that the plaintiffs had standing, but disagreed on the merits.
    2. Majority Reasoning:
      1. Driver education is not a service, program, or activity of the Texas Education Agency because: 1) the Texas Education Agency does not teach driver education, contract with driver education schools, or issue driver education certificate to individual students. Rather, it licenses and regulates private driver education schools, which in turn teach driver education and issue the certificates. So, the Texas Education Agency’s program provide the licensure and regulation of driver education schools and not the driver education itself;
      2. With respect to the argument that a public entity cannot discriminate directly or through contractual, licensing, or other arrangements, any failure of the driver education schools to comply with the ADA or Rehabilitation Act cannot be said to be the result of requirements or policies established by the Texas Education Agency. Instead, the claim is that most that the Texas Education Agency’s failure to establish requirements or policies as allow private driver education school to be inaccessible. Accordingly, the Texas Education Agency is not accountable for the driver education schools inaccessibility because the Texas Education Agency’s requirements and policies have not caused the discrimination;
      3. In the absence of a contractual or agency relationship, courts have routinely held that a public entity is not liable for licensed private actor’s behavior. Further, the the DOJ’s interpretive guidance also supports the need for a contractual or agency relationship prior to holding a public entity responsible for a private entity’s conduct;
      4. Just because the driver education schools are heavily regulated and supervised by the Texas Education Agency does not make the schools a service, program, or activity of the Texas Education Agency. Otherwise, states and localities would be required to ensure the ADA compliance of every heavily-regulated industry.
      5. Reasoning of Concurring and Dissenting Opinion
        1. Title II regulations explicitly forbid public entities from engaging in discrimination through contractual, licensing, or other arrangements;
        2. Not only does 28 C.F.R. § 35.130(b)(1) specifically include licensing, but the catchall phrase “other arrangement,” goes against the majority’s narrow construction that only contractual or agency relationship qualify as programs in that licensing does not. It should be a matter of substance of each particular public/private relationship and not a matter of undefined labels;
        3. The majority misreads the Department of Justice enforcement guidance because the guidance only make the general point that, “many situations, however, public entities have a close relationship to private entities that are covered by title III, with the result that certain activities may at least be indirectly affected by both titles.” That is simply not the same thing as saying a close relationship requires a contractual or agency relationship;
        4. The way that the state interfaces driver training and the receipt of state benefits indicate an intimate participation at all levels of the private driving school industry that is more than merely regulatory. Through the Texas Education Agency, the state employs and manages the industry to achieve its own public ends. Just because the state’s active involvement in this industry is labeled licensing, does not diminish, much less block, qualifying this as a program of the state for the purposes of the ADA;
        5. The powers granted to the Texas Education Agency in chapter 1001 of the Texas code further support the view that private driving instruction is just one component of an overall state program since it is clear that the Texas Education Agency exerts more rigorous oversight of providers of driver education than would be expected than most run-of-the-mill licensing regimes. Examples include: 1) every driving school’s curriculum must be approved by the Texas Education Agency, and the agency designates the textbook that may be used; 2) the Texas Education Agency’s enforcement powers over driver education schools are broad and varied and suggest a greater degree of involvement in the driving schools’ operation than a typical of a plain-vanilla licensing arrangement; 3) the Texas Education Agency requires that driving school owners and staff be of good reputation and character and therefore, signals a heightened level of concern for the reliability of the school services, which is consistent with the Texas Education Agency as the public provider of social services programs: 4) the driver education schools must post a significant bond payable to the Texas Education Agency for direct use in paying refund to students and that also suggests a more intimate level of agency involvement in licensing activity than would be expected if it were purely a hands-off licensing entity; and 5) the Texas Education Agency has the right to inspect every school physically at least once a year as a condition of license renewal and more frequently if the school has a history of regulatory violations;
        6. The Texas Education Agency also employs driver training to teach civic responsibility, including lessons having nothing to do with the mechanics of driving. Those lessons include litter prevention and organ donation for example;
        7. Driver education forms part of the academic curriculum in some public schools;
        8. 28 C.F.R. § 35.130(b)(1)(v) contemplates precisely the situation here where a public entity discriminates indirectly by furnishing significant assistance to a private entity that is discriminating directly by failing to provide the public entity’s program to beneficiaries with disabilities. In other words, the regulation covers a public entity farming out the practical implementation of the program to private entities while retaining and exercising considerable oversight, regulation, and other substantive involvement;
        9. The driving school students are the direct beneficiaries of the Texas Education Agency’s program, and the Texas Education Agency furnishes operating licenses and course completion certificates to private schools that are discriminating on the basis of disability;
        10. State of Texas cannot legislatively mandate driver education and then abate ADA responsibility by a flea flicker lateral from the Texas Education Agency to private licensees. I should point out that this is much the same argument as the ADA being a non-delegable duty (see this blog entry).
        11. Driving of private and personal vehicles is an uniquely important, pervasive, and indispensable entitlement. Further, driving responsibly is a civic duty that the state seeks to promote with a unique regulatory scheme that entrusted the Texas educational agency; the fact the state licensed driver education schools happen to be private enterprise does not change these facts;
        12. Driver education schools serve as private mechanism for achieving public ends and public policy;
        13. If driver education schools would cease to exist, Texas would most likely replicate them. Therefore, driver education is a positive good and an end to itself;
        14. Texas has an inherent interest in driver education that it does not have in any of the other license endeavors;
        15. With respect to promoting handicap accessibility, Congress made the conscious calculation to impose the burden on public entities. In light of the unseemly history of systematically excluding persons with disability from public life and public activities, Congress quite intently wrote the ADA to provide a clear and comprehensive national mandate for the elimination of discrimination. While it might not be convenient for the Texas Education Agency to require ADA compliance by licensed driver education schools, nevertheless, the ADA’s sweeping purpose is clear. Finally, if the Texas Education Agency if it finds that such modifications are too strenuous, it is allowed per the ADA to demonstrate as a defense that making the modification would fundamentally alter the nature of the service, program, or activity.

VII

Conclusions

  1. While the United States Supreme Court’s record with respect to persons with disabilities in employment matters is very mixed, it actually has a very strong record for persons with disabilities in title II and title III matters;
  2. With respect to Ivy v. Williams, interesting that the case was accepted by the U.S. Supreme Court since there was no Circuit split on the issue and the court is currently at eight members. Accepting the case meant that four of them wanted to hear the case. Impossible to say which four, though one could guess it might have been Breyer, Sotomayor, Ginsberg, and Kagan voting for cert. One also wonders why the case would be accepted if they thought a 4-4 split was in order, since there is no way to tell when a new Justice will join the court. I would not hazard a guess as to which way this case will go. That said, one possibility is they might split the difference. That is, saying that a program, service, or activity is not involved, but the Texas Education Agency cannot engage in the flea flicker pass that it engages in. It also might be possible that they might say that the licensing system itself is a program, service, or activity. It will be very interesting to see how this case is decided and the breakdown of the Justices (party lines are not a good indicator of how the justices break down in ADA cases).
  3. Regarding Fry, it is more understandable that this case was accepted since the cases have gone both ways on requiring IDEA exhaustion with respect to service animals where the student has an IEP. This particular case is even a harder guess than Ivy as to how it might go. A ruling in favor of the school district might mean a rush away from IDEA to 504 by parents of students with disabilities so that by not having an IEP, they do not have to worry about exhausting the IDEA process.
  4. Regarding deaf drivers, readers might be interested in this article involving Uber seeking out deaf drivers.

Filed Under: ADA, Constitutional law, Federal Cases, Final Federal Regulations, General, Guidances, Proposed Federal Regulations, Title I, Title II, Title III, Title V Tagged With: 28 C.F.R. § 35.130, ADA, ADA compliance attorney, ADA compliance consultant, ADA consultant, ADA defense attorney, Albertson's v. Kirkingburg, Barnes v. Gorman, Board of Trustees of the University of Alabama v. Garrett, Bragdon v. Abbott, Buckhannon board and care home v. West Virginia Department of Health and human resources, Chevron v. Echazabal, City and County of San Francisco v. Sheehan, Clackamas gastroenterology Associates v. Wells, Cleveland v. Policy Management Systems Corporation, constitutional law, CRST Van Expedited v. EEOC, deaf, EEOC v. Abercrombie and Fitch stores Inc., eeoc v. waffle house, Fry v. Napoleon community schools, IDEA, IDEA exhaustion, Ivy v. Williams, Murphy v. UPS, Olmstead, Pennsylvania Department of Corrections v. Yeskey, PGA Tour Inc. v. Martin, programs services and activities, Raytheon v. Hernandez, Rolf Jensen and Associates Inc. v. eighth judicial District Court of the state of Nevada, Spector v. Norwegian cruise line, Sutton v. United Airlines, TEA, Tennessee v. Lane, Texas, title I, title II, title III, Title V, Toyota motor Manufacturing Kentucky v. Williams, U.S. v. Georgia, University of Texas southwestern medical center v. Nassar, wright v. universal Marine service Corporation

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