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PROTECTION & ADVOCACY |
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Oklahoma Disability Law Center, Inc. |
December, 2001 |
v
v
Airline
Security and Disability Rights (JFA)
With
US DOT Fact Sheet
v
EEOC
Update: EEOC Issues Guidance on Health
Inquiries for Employer Evacuation Plans
v
Housing
Update: NCD Evaluates HUD’s Enforcement
v
Report
on Voting Accessibility (JFA)
v
Nation’s First
v
Million
Dollar Verdict in Settlegoode Case Sends “Shock Waves” Throughout Special Ed
Community
US Supreme Court Update
On
(2) Waiver
of Eleventh Amendment state sovereign immunity.
(1) Chevron
Court below: 226 F.3d 1063 (9th Cir. 5/23/00)
Full Text: http://laws.findlaw.com/9th/9855551.html
The issue in the American's with Disabilities Act case is whether the affirmative
defense of "direct threat" is available to an employer on ground that
an employee endangers his own health. Eschezabal worked for a subcontractor at
a Chevron oil refinery. Chevron twice rejected his application to work
directly for them out of concern for his health after negative mandatory
physicals. Chevron then directed the subcontractor to remove Eschezabal
from the job for health reasons. The Court of Appeals for the Ninth
Circuit, using plain language analysis, held that the affirmative defense was
limited to only employers who reject applications of those presenting a direct
threat to the health or safety of others. It reasoned that the statutes
plain language, clear
legislative intent and case precedent all prohibit a
paternalistic reading of the "direct threat" defense.
(2) Lapides
v. Board of Regents, University System of Georgia, Case No. 01-298
Court below: 251 F.3d 1372 (11th Cir. 5/24/01)
Full text: http://laws.findlaw.com/11th/0014984opn.html
The
issue in this sovereign immunity case is whether a state attorney general may
waive a state's Eleventh Amendment immunities by removing a state citizen's
suit to federal court. A student accused Lapides of sexual harassment, but
failed to provide any evidence in support of the accusation.
immunity by removing the suit to federal court. The Court of Appeals for the
Eleventh Circuit reversed, holding that the state did not waive sovereign
immunity by removal of the case to federal court. It determined that a
state may waive sovereign immunity only by statute or judicial interpretation,
and that the Georgia Constitution precluded waiver through judicial
interpretation.
During
the week of November 5, 2001, the United States Supreme Court will hear oral
arguments in the case of Toyota Motor Mfg., Kentucky v. Williams, Case No.
00-1089;
Court below: United States Court of Appeals, Sixth Circuit
Full text: http://laws.findlaw.com/6th/00a0223p.html
The issue in this case is whether an individual's inability to perform a limited
number of tasks associated with a specific job is a "disability"
within the meaning of the Americans with Disabilities Act (ADA) of 1990.
On
Court
below: 242 F.3d 1264 (10th Cir.
Full
text: http://laws.findlaw.com/10th/006128.html
The issue in this search and seizure case is whether a
school's mandatory urinalysis drug test is "reasonable" under the
Fourth Amendment. In 1988, the
students who participate in extracurricular activities does not outweigh the
student's right to be searched illegally without reasonable suspicion.
On
Tuesday, November 27, 2001, the United States Supreme Court will hear oral
arguments in the Oklahoma case of Owasso Independent Sch. Dist. v. Falvo, Case No.
00-1073
Court below: United States Court of Appeals, Tenth Circuit
Full text: http://laws.findlaw.com/10th/995130.html
The issue in this case is whether the Family Education Rights and Privacy Act (FERPA),
which requires educational institutions to preserve the confidentiality of
"education records," prohibits public school teachers from using
their students to exchange and grade each other's homework, quizzes, or tests. Falvo's children are enrolled in schools in
the
student's papers, or allow students to grade their own papers. Falvo filed
suit in federal court, seeking, among other things, an order enjoining the
district from using peer grading. Falvo alleged that the peer grading
practices violate the Fourteenth Amendment and FERPA. The
district court denied the injunction. The Tenth Circuit affirmed on the 14th
Amendment privacy claim but reversed on the FERPA claim. It determined
that peer-evaluated grades constitute an "educational record" under
the plain text of the statute because a student grading another student's paper
is acting for an education agency, which violates FERPA. On appeal, the
district argues that the plain language of FERPA shows that the term
"educational records" does not include the grades on routine homework
assignments, quizzes and tests, and to find that it does
will needlessly burden sound educational practices.
"Airline Security & Disability Rights"
from Justice for All
The Department of Transportation has
issued the following
fact sheet to address concerns about
airport security for
passengers with disabilities. The
basic premise is that
passengers with disabilities should
still expect
nondiscriminatory treatment as
required by the Air Carrier
Access Act (ACAA), but a thorough
security screening does
not violate the ACAA.
If you encounter a violation at an
airport (or at any time
from buying your ticket to leaving an
airport,) your first
request should be to talk with a
Complaints Resolution
Official (CRO) for the airline - each
airline must
provide a CRO and they are entitled
to act on behalf of the
airline in ACAA cases. If the problem
is not resolved to
your satisfaction, you may file a
complaint as explained in
the attached document. If you have
any questions
or need more information on the ACAA,
please contact
Maureen McCloskey at PVA at
202-416-7696.
Thanks to the Consortium of Citizens with
Disabilities
(CCD) for sharing this information.
Jonathan Young, JFA Moderator
---
U.S.
Department of Transportation
Fact Sheet
"Steps
Taken to Ensure New Security Requirements Preserve
and Respect the Civil Rights of People with Disabilities"
The Air Carrier Access Act (ACAA) and
the Department of
Transportation's implementing rules
prohibit discriminatory
treatment of persons with
disabilities in air
transportation. Since the terrorist
hijackings and tragic
events of September 11, the Federal
Aviation Administration
(FAA) has issued directives to
strengthen security measures
at airline checkpoints and passenger
screening locations.
In securing our national air
transportation system, where
much of FAA's efforts have been
directed to date, steps
were also taken to ensure that the
new security procedures
preserve and respect the civil rights
of passengers with
disabilities. This Fact Sheet
provides information about
the accessibility requirements in air
travel in light of
strengthened security measures by
providing a few examples
of the types of accommodations and
services that must be
provided to passengers with
disabilities. The examples
listed below are not all-inclusive
and are simply meant to
provide answers to frequently asked
questions since
September 11 concerning the air
travel of people with
disabilities.
Check-in
+ Air carriers must provide meet and
assist service
(e.g., assistance to gate or
aircraft) at drop-off points.
The lack of
curbside check-in, for certain airlines at some
airports, has not changed the requirement for meet and
assist service at drop-off points.
Screener checkpoints
+ Individuals assisting passengers
with disabilities
are allowed beyond the screener
checkpoints. These
individuals may be required to
present themselves at the
airlines' check-in desk and receive a
"pass" allowing them
to go through the screener checkpoint
without a ticket.
+ Ticketed passengers with their own
oxygen for use on
the ground are allowed beyond the
screener checkpoints with
their oxygen canisters once the
canisters have been
thoroughly inspected. If there is a
request for oxygen at
the gate for a qualified passenger
with a disability,
commercial oxygen providers are
allowed beyond the screener
checkpoints with oxygen canisters
once the canisters have
been thoroughly inspected. Commercial
oxygen providers
may be required to present themselves
at the airlines'
check-in desk and receive a
"pass" allowing them to go
through the screener checkpoint
without a ticket.
+ The limit of one carry-on bag and
one personal bag
(e.g., purse or briefcase) for each
traveler does not apply
to medical supplies and/or assistive
devices. Passengers
with disabilities generally may carry
medical equipment,
medications, and assistive devices on
board the aircraft.
+ All persons allowed beyond the
screener checkpoints
may be searched. This will usually be
done through the use
of a hand-held metal detector,
whenever possible.
Passengers may also be patted down
during security
screenings, and this is even more
likely if the passenger
uses a wheelchair and is unable to
stand up. Private
screenings remain an option for
persons in wheelchairs.
+ Service animals, once inspected to
ensure prohibited
items are not concealed, are
permitted on board an
aircraft. Any backpack or sidepack
that is carried on the
animal will be manually inspected or
put through the X-ray
machines. The service animal's halter
may also be removed
for inspection.
+ Assistive devices such as walking
canes, once
inspected to ensure prohibited items
are not concealed, are
permitted on board an aircraft.
Assistive devices such as
augmentative communication devices
and Braille 'N Speaks
will go through the same sort of
security screening process
as used for personal computers.
+ Syringes are permitted on board an
aircraft once it
is determined that the person has a
documented medical need
for the syringe.
+ Personal wheelchairs and
battery-powered scooters may
still be used to reach departure
gates after they are
inspected to ensure that they do not
present a security
risk. Any backpack or sidepack that
is carried on the
wheelchair will be manually inspected
or put through the X-
ray machines.
+ Personal wheelchairs will still be
allowed to be
stowed on board an aircraft.
+ Air carriers must ensure that
qualified individuals
with a disability, including those
with vision or hearing
impairments, have timely access to
information, such as new
security measures, the carriers
provide to other
passengers. For example, on flights
to
restrooms more than a half an hour
before arrival since
after that point in time passengers
are required to remain
in their seats. Alternative formats
are necessary to
ensure that all passengers,
especially deaf persons,
understand new security measures such
as the one at Reagan
Washington National.
We hope this information is helpful
to you. Members of
the public, who feel they have been
the subject of
discriminatory actions or treatment
by air carriers, may
file a complaint by sending an email,
a letter, or a
completed complaint form to the
Aviation Consumer
Protection Division (ACPD). ACPD's
e-mail address is
airconsumer@ost.dot.gov and its mailing
address is:
Aviation Consumer Protection
Division, U.S. Department of
Transportation, Room 4107, C-75,
Complaint forms that consumers may
download and/or print
are available at http://www.dot.gov/airconsumer/problems.htm
.
Issued on
Counsel for Aviation Enforcement and
Proceedings and its
Aviation Consumer Protection
Division.
EEOC
UPDATE: EEOC Issues Guidance on Health
Queries for Evacuation Plans
http://www.eeoc.gov/press/10-31-01.html
The
U.S. Equal Employment Opportunity Commission (EEOC) posted on its web site
questions and answers to assist employers who are developing or re-evaluating
emergency evacuation procedures. The
guidance is online at: http://www.eeoc.gov/facts/evacuation.html.
"In
light of recent events, many employers are particularly concerned about being
able to evacuate individuals who might require assistance because of a medical
condition or disability," said EEOC Chair Cari M. Dominguez. "This
document is intended to provide answers to questions they may have about the
implications of the Americans with Disabilities Act (ADA) and the
Rehabilitation Act in developing a comprehensive emergency plan."
The
document explains how employers may identify individuals who may require
assistance and how much medical information they may obtain. It also explains
with whom employers may share information about an employee's medical condition
and need for assistance.
"Although
employers may ask employees with known disabilities about their need for
assistance in the event of an emergency," said EEOC Commissioner Paul
Steven Miller, "this document cautions them that they should not assume
that all individuals with obvious disabilities will require assistance.
Individuals with disabilities are generally in the best position to assess
their particular needs."
Housing
Update: NCD Evaluates HUD’s Enforcement
NEWS RELEASE
NCD #02-341
November 6, 2001
Contact: Mark S. Quigley
202-272-2004
202-272-2074 TTY
mquigley@ncd.gov
NATIONAL COUNCIL ON DISABILITY
EVALUATES HUD'S
ENFORCEMENT OF FAIR HOUSING LAWS
WASHINGTON--The National Council on
Disability (NCD) has found that despite legislation from1988 that mandated
improving fair housing, fair housing enforcement remains an unfulfilled promise
for Americans with disabilities. NCD today released its report, Reconstructing
Fair Housing, located online at http://www.ncd.gov/newsroom/publications/fairhousing.html,
which evaluates the U.S. Department of Housing and Urban Development's (HUD) enforcement
of the Fair Housing Act and Section 504 of the 1973 Rehabilitation Act to
counter discrimination in housing, and HUD's record during the past 12 years in
enforcing the rights of people with disabilities under these laws. The report
states that:
The past 12 years of civil rights
enforcement by HUD have left
needing more.
In fiscal years 1999 and 2000, people
with disabilities became the single largest group to file housing discrimination
complaints.
By the late 1990s, HUD's
investigations of housing
discrimination complaints took nearly
five times as long as
Congress had mandated.
Inadequate funding hampered
administrative enforcement of civil rights laws.
"Clearly, HUD's fair housing
enforcement system must be
revised," said NCD board member
Dave Brown. "Improving HUD's enforcement system obviously requires action
by Congress and the Bush administration, but we believe it is
essential that affected and at-risk
groups strengthen existing coalitions to ensure positive action and
accountability by elected and appointed officials."
Brown stated that people with
disabilities, Native
Americans, Hispanic Americans, Asian
Americans, and African Americans have mutual concerns and shared interests,
"because we are all at risk when it comes to being discriminated
against."
In addition to urging greater
cooperation among affected and at-risk groups, NCD also recommended that:
The Bush Administration improve the
enforcement of disability rights laws with input from a new HUD Citizen
Advisory Panel.
The Administration, HUD, and Congress
ensure that current and future HUD budgets are increased to provide adequate resources
for enforcing housing-related civil rights laws.
"Report on Voting Accessibility"
by Justice for All
Researchers Doug Kruse, Lisa Schur,
Kay Schriner, and Todd
Shields have developed the following
report about the
experience of people with
disabilities in elections. The authors conclude that "the difference in participation
rates between individuals with disabilities and nondisabled individuals... may
be narrowing" and that "Americans with disabilities continue to
experience and anticipate difficulties in voting."
I'd like to suggest another
ramification of the data. As
indicated in the study, people who
haven't recently voted
"anticipate" finding voting
problems (32.6%) at a much
higher rate than those who actually
voted and "experienced"
voting problems (5.8%). We must
therefore be vigilant not
only in making voting places more
accessible to people with
disabilities (who encounter problems
about three times as
much as nondisabled individuals), but
also in getting
people with disabilities registered
to vote and to the
polls on election day -- where many
people who anticipate
problems will be fully able to cast
their votes. In the
words of AAPD President and CEO Andy Imparato,
"With Rights
Come Responsibility," and that
means getting to the polls.
To learn more about AAPD's efforts to
make voting places
more accessible and increase voter
participation, please
visit http://www.aapd-dc.org and
click on "Disability Vote
Project."
Note: I've made some formatting
changes from the original
document to make the presentation of
statistics more
readable in the text of an email.
Jonathan Young, JFA Moderator
==
FACT
SHEET ON VOTER TURNOUT, VOTING DIFFICULTIES, AND
DISABILITY IN THE 2000 ELECTIONS: LAYING A CHALLENGE AT
DEMOCRACY'S DOOR
By:
Douglas Kruse and Lisa Schur, Rutgers
University[1]
Kay Schriner and Todd Shields,
University of Arkansas[2]
American democracy rests on the
participation of the
citizenry in the selection of elected
officials. By
choosing their representatives,
citizens express their
views about what matters to them and
what should be done
about it. Not every American citizen
has an equal
opportunity to cast a ballot,
however. Many thousands of
voters and potential voters are
disenfranchised by barriers
to electoral participation.
These barriers are a threat to the
potential of our
democracy to realize its promise of
equality and justice
for all. When some voters cannot
participate in an equal
footing, all Americans lose. When
some citizens are left
out, democracy suffers.
For many disabled citizens, elections
represent another
example of society's inaccessibility.
This report is
intended to clarify the experiences
of people with
disabilities in American electoral
politics.
To investigate the relationship
between voter turnout,
voting difficulties, and disability,
a national random-
household telephone survey of 1,002
American citizens of
voting age was conducted through the
Rutgers Center for
Public Interest Polling following the
November, 2000
elections. A broad definition of
disability was used,
based on questions from the 2000
Census. For more
meaningful comparisons the sample was
stratified so that
interviews were conducted with 432
people with disabilities
and 570 people without disabilities.
Survey respondents
were asked standard questions about
voting, voter
registration, and factors that could
help explain turnout
and registration. They were also
asked questions
concerning actual or expected difficulties
in voting at a
polling place, and views of several
voting methods often
used by people with disabilities.
The General Accounting Office
released a report on
14, 2001
had no potential impediments to
access by people with
disabilities. This fact sheet
complements the GAO study by
providing individual-level
information on the voting
experiences of people with
disabilities, with comparisons
of voter turnout, voting
difficulties, and views of
curbside voting between people with
and without
disabilities.
Voter Turnout
* People with disabilities were on
average about 12
percentage points less likely than
those without
disabilities to vote, after adjusting
for differences in
demographic characteristics (age,
sex, race, education, and
marital status). This was an
improvement over the 1998
elections, in which people with
disabilities were about 20
percentage points less likely than
people without
disabilities to vote (based on a
similar survey following
the 1998 elections).
* If people with disabilities voted
at the same rate as
those without disabilities, there
would have been 3.2
million additional voters in 2000,
raising the overall
turnout rate by 1.7 percentage
points.
Absentee Voting and Voting
Difficulties
* People with disabilities were
almost twice as likely as
other citizens to vote by absentee
ballot. Among those who
voted, 20% used an absentee ballot,
compared to 11% of
people without disabilities.
* Citizens with disabilities are more
likely than those
without disabilities to have
encountered, or expect,
difficulties in voting at a polling
place:
Encountered difficulties, if last
voted at polling place
since 1990[3]:
Citizens with disabilities: 5.8%
Citizens without disabilities: 2.0%
Would expect difficulties, if haven't
voted at polling
place since 1990[4]:
Citizens with disabilities: 32.6%
Citizens without disabilities: 2.4%
* Reported problems with voting among
people with
disabilities are split among getting
to the polling place,
being able to vote once at the
polling place, and general
mobility.
Problems encountered if voted in past
10 years:
Any difficulty in voting at polling
place: 5.8%
Getting to polling place: 1.3%
At polling place (getting inside,
using
booth/machine, long lines,
seeing/understanding ballot):
3.5%
General mobility (walking, standing):
0.9%
Problems expected if haven't voted in
past 10 years
Any difficulty in voting at polling
place: 32.6%
Getting to polling place: 5.7%
At polling place (getting inside, using
booth/machine, long lines,
seeing/understanding ballot):
17.9%
General mobility (walking, standing):
6.3%
* Based on these results, an
estimated 1.3 million citizens
with disabilities encountered
problems in voting since 1990
during the last time they voted at a
polling place, while
an additional 1.7 million citizens
who have not voted at a
polling place since 1990 would expect
to encounter
problems. Overall 3.0 million
citizens with disabilities
either encountered or would expect to
encounter
difficulties in voting at a polling
place.
Views About
Curbside Voting
Respondents were asked their view of
whether "voting a
ballot in an automobile at
curbside" is "just as good as
voting in person inside the polling
station, or not as
good?" Majorities of people with
and without disabilities
feel that it is not as good:
Curbside voting is just as good
Citizens with disabilities: 36.1%
Citizens without disabilities: 36.8%
Curbside voting is not as good
Citizens with disabilities: 54.9%
Citizens without disabilities:
57.8.8%
Further information on the survey
methodology and other
results is available from the
authors.
Implications of Findings
The research summarized here contains both good news and
bad news. The good news is that
"the disability gap" - the
difference in participation rates
between individuals with
disabilities and nondisabled
individuals - may be
narrowing. In the 2000 presidential
election, the gap was
12 percentage points (compared to 20
percentage points in
the 1998 election). This should
increase politicians'
attention to the views of people with
disabilities.
Unfortunately, Americans with
disabilities continue to
experience and anticipate
difficulties in voting. Three
million citizens with disabilities
have encountered
problems in voting, or would expect
to encounter problems.
If impediments were removed and
people with disabilities
began voting in the same proportion
as other Americans,
fully 3.2 million more people would
be casting ballots.
Policymakers must take immediate and
effective steps to
remove the barriers to participation
for individuals with
disabilities.
These findings lay a challenge at
democracy's door. The
stability and responsiveness of any
democracy depends on
its ability to fully represent its
citizens.
find the will to open democracy's
door - to all.
[1] School of Management and Labor
Relations, 50 Labor
Center Way, New Brunswick, NJ, 08903
dkruse@rci.rutgers.edu, LSchur@rci.rutgers.edu.
[2] Department of Political Science,
432 Old
tshields@comp.uark.edu.
[3] Those who had voted at a polling
place since 1990 were
asked, with respect to the last time
they voted, "Did you
experience any difficulty in getting
to the polling place
or in using the ballot or voting
machine?"
[4] Those who had not voted at a
polling place since 1990
were asked, "If you wanted to
vote in person inside the
polling place, do you think you would
experience any
difficulty in getting to the polling
place or in using the
ballot or voting machine?"
Nation’s First Mental Health
Court: Broward County, 17th Judicial
Circuit, Broward County,
First
Annual Mental Health Court Progress Report
http://www.co.broward.fl.us/ojss/jsi00500.html
July
1997- June 1998
Second Annual Mental Health Court Progress Report
http://www.co.broward.fl.us/ojss/jsi00600.html
July 1998- June 1999
Third Annual Mental Health Court Progress Report
http://www.co.broward.fl.us/ojss/jsi00700.html
July 1999- June 2000
AN INNOVATIVE APPROACH TO THE MENTALLY
DISABLED IN THE CRIMINAL JUSTICE SYSTEM
http://www.co.broward.fl.us/ojss/jsi01300.html
A Diversion for Mentally Ill Petty Offenders
http://www.co.broward.fl.us/ojss/jsi01500.html
“Shock Waves” Throughout Special
Education Community by Settlegoode v. Portland Public Schools (Million Dollar
Verdict)
Many
expect that this case will "send shock waves" throughout the special ed community. Pete Wright quotes another person as saying, "Pamella
Settlegoode will be known as the trail-blazer who opened doors for teacher
advocates who are working in the trenches to help our
children."
The 'story behind the story' includes Pete Wright's analysis of the case and
links to the complaint filed in the U.S. District Court in Portland Oregon and
the proposed Pre-Trial Order detailing the factual and legal issues of this
landmark case."
http://www.wrightslaw.com/info/retaliate.settlegoode.htm
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