PROTECTION & ADVOCACY
Oklahoma Disability Law Center, Inc.	June, 2002

IN THIS ISSUE:

v U. S. Supreme Court Update

v EEOC Update: EEOC Rules on Application of ADA to Federal Workforce

v School Bullying Prevention Act Passed by Legislature and Signed by Governor of Oklahoma

v Justin Dart: Mission Accomplished

US SUPREME COURT UPDATE

On April 29, 2002, the United States Supreme Court decided the case of U.S. Airways, Inc. v. Barnett, Case No. 00-1250
Full text: http://laws.findlaw.com/us/000/00-1250.html

The United States Supreme Court held 5-4 (opinion by Breyer; dissent by Scalia) that altering a seniority system for the purposes of accommodating a disabled employee would be an "undue hardship" to and employer and other company employees; however, an employee seeking accommodation could present evidence that showed special circumstances for an exception to the system. Robert Barnett injured his back while working for U.S. Airways, Inc. (U.S. Airways) as a cargo handler.  Barnett was transferred to a mailroom position that was not as physically demanding.  The mailroom position later became open for bidding based on seniority.  Barnett lost his job to a senior employee when U.S. Airways refused to accommodate him.  U.S. Airways moved for summary judgment contending that the accommodation that Barnett sought would place an "undue hardship" on the company because of the well-established seniority system.  The District Court granted the summary judgment.  The Ninth Circuit reversed, stating that seniority was merely a factor to be considered in a case-by-case analysis.  The United States Supreme Court vacated the Court of Appeals opinion and remanded the case, holding that the alteration of a seniority system to accommodate a disabled employee is an "undue hardship" as a matter of law, but that the employee could still present evidence showing special circumstances for an exception to the seniority system.  The court reasoned that the seniority system provided uniform advancement for all employees based on objective standards.  The Court found nothing in the ADA that suggested that Congress meant to undermine seniority systems.  Therefore, a disabled employee will bear the burden of showing special circumstances for exception to a seniority system.  Justice Scalia's dissent was based on the "uncertainty" that the decision produced between the ADA and seniority systems.  Justice Scalia contends that allowing disabled employees to show special circumstances would give them a "vague and unspecified power" and undercut the seniority system. 

On May 13, 2002, the United States Supreme Court decided the case of Lapides v. Bd. of Regents of the Univ. Sys. of Georgia, Case No. 01-298
Full Text: http://laws.findlaw.com/us/000/01-298.html
The United States Supreme Court held unanimously (opinion by Breyer) that a state's removal of a lawsuit from state court to federal court is a form of voluntary invocation of a federal court's jurisdiction sufficient to waive the state's Eleventh Amendment immunity. Paul Lapides, a professor in the Georgia state university system, filed suit against the Board of Regents of the University Systems of Georgia (Georgia) in a Georgia state court alleging that university officials placed allegations of sexual harassment in his personnel files.  He alleged this violated Georgia and federal law.  Georgia voluntarily joined in removing the case to Federal District Court.  While the District Court ruled the doctrine of qualified immunity barred the federal law claim, it ruled Georgia had waived its Eleventh Amendment immunity by removing the state-law case from state to federal court.  The Court of Appeals for the Eleventh Circuit reversed, stating that state law was unclear as to whether the state's attorney general possessed the legal authority to waive the state's Eleventh Amendment immunity, thus allowing Georgia to retain the legal right to assert its immunity, even after removal.  The United States Supreme Court reversed, upholding the general principle that where a state voluntarily becomes a party to a cause and submits its rights for judicial determination, it cannot escape the result of its own voluntary act by invoking Eleventh Amendment immunity.  The Court recognized Georgia was brought involuntarily into the case as a defendant in the state-court proceedings, but held Georgia's voluntary removal to federal court invoked the federal court's jurisdiction.

On June 10, 2002 the United States Supreme Court decided the case of Chevron U.S.A. Inc. v. Echazabal, Case No.  00-1406; Full text: http://laws.findlaw.com/us/000/00-1406.html
The United States Supreme Court held unanimously (opinion by Souter) that the threat-to-self defense reasonably falls within the general job-related and business necessity standard of the Americans with Disabilities Act of 1990 (ADA) and permits the EEOC regulation authorizing employers to deny a job to a disabled individual because performance on the job would endanger his own health or safety. Echazabal worked for independent contractors at an oil refinery owned by Chevron, who offered to hire Echazabal if he could pass the company's physical examination.  Echazabal's exam twice showed liver abnormality or damage which Chevron's doctors said would be aggravated by continued exposure to toxins in Chevron's refinery.  Chevron withdrew their offer and asked the contractor to reassign Echazabal to a job without exposure to harmful chemicals or to remove him from the refinery.  The contractor laid him off.  Echazabal filed suit claiming Chevron violated the ADA by refusing to hire him or let him continue to work because of a disability.  Chevron defended under an EEOC regulation allowing the defense that a worker's disability on the job would pose a direct threat to his health.  The District Court granted summary judgment for Chevron.  On appeal, the Ninth Circuit reversed the summary judgment and held that EEOC's regulation recognizing a threat-to-self defense exceeded the scope of permissible rulemaking under the ADA.  The United States Supreme Court reversed, holding the regulation is permissible.  The Court stated the direct threat defense must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence and upon an expressly individualized assessment of the individual's present ability to safely perform the essential functions of the job, after considering among other things, the imminence of the risk and the severity of the harm portended.  The Court viewed the EEOC as acting within the reasonable zone when it saw a difference between rejecting workplace paternalism and ignoring specific and documented risks to the employee himself.

On June 17, 2002, the United States Supreme Court decided the case of Barnes v. Gorman, Case No. 01-682
Full Text:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=01-682
The United States Supreme Court unanimously held (majority opinion by Scalia; concurrences by Souter and Stevens) that punitive damages may not be awarded in suits brought under sec. 202 of the ADA and sec. 504 or the Rehabilitation Act.
Gorman, a paraplegic, was arrested for trespass after fighting with a bouncer at a nightclub.  He suffered serious medical problems when being transported to a police station in a van that was not equipped for the wheelchair.  Gorman then sued police for discrimination against him in
violation of section 202 of the ADA and section 504 of the Rehabilitation Act of 1974.  At trial, the jury awarded Gorman compensatory and punitive damages.  The district court vacated the punitive damages.  The Eighth Circuit reversed.  On appeal, the United States Supreme Court held that since punitive damages may not be awarded in private suits under Title VI, it may not be awarded in suits under section 202 of the ADA and section 504 of the Rehabilitation Act. The remedies for violation of both sections are coextensive with the remedies available in a private cause of action brought under Title VI of the Civil Rights Act of 1964.  Title VI invokes Congress's Spending Clause power to place conditions on the grant of federal funds.  The Court reasoned that it has regularly applied a contract-law analogy in defining the scope of conduct for which funding recipients may be held liable in money damages, and in finding a damages remedy available in private suits under Spending Clause legislation.  Title VI does not mention remedies and damages are generally not available for contract actions.

On June 20, 2002 the United States Supreme Court decided the cases of

(1) Atkins v. Virginia, Case No. 00-8452
Full Text:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=00-8452
The United States Supreme Court held 6-3  (opinion by Stevens; dissents by Rehnquist and Scalia) that execution of a mentally retarded criminal is excessive punishment and violates the Eighth Amendment. Atkins was convicted of capital murder and sentenced to death. During the penalty phase, the defense presented evidence that he was mildly mentally retarded. The Supreme Court of Virginia affirmed the death penalty. The United States Supreme Court reversed, holding that executions of mentally retarded criminals are cruel and unusual punishments prohibited by the Eighth Amendment. The Court reasoned that although mentally retarded persons frequently are competent to stand trial, but, by definition, they have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand others' reactions.  The Court concluded that their deficiencies do not warrant an exemption from criminal sanctions, but diminish their personal culpability.

(2) Gonzaga University v. Doe, Case No. 01-679
Full Text:
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&navby=case&vol=000&invol=01-679
The United States Supreme Court held 7-2 (opinion by
Rehnquist; concurrence by Breyer; dissent by Stevens) that the Family Educational Rights and Privacy Act of 1974 (FERPA) creates no personal
rights to enforce under 42 U.S.C. sec. 1983. After hearing of the sexual misconduct by Doe, League, Gonzaga's teacher certification specialist, disclosed the allegations to the state agency
responsible for teacher certification. As a result, Gonzaga University would not give Doe a certificate affidavit of good moral character, required by Washington State for all new teachers. Doe sued Gonzaga and League alleging violation of the FERPA, which prohibited the federal funding of schools that had a policy or practice of permitting the release
of students' education records without their parents' written consent.  The jury awarded Doe compensatory and punitive damages.  The Washington Court of Appeals reversed, concluding that the FERPA did not create individual rights and thus could not be enforced under sec. 1983.  The Washington Supreme Court reversed. On appeal, the United States Supreme Court reversed, holding that the FERPA's nondisclosure provisions contain no rights-creating language, therefore create no rights enforceable under sec. 1983.  The Court reasoned that if Congress wishes to create new rights, it must do so in clear and unambiguous terms. The dissent argued that the FERPA does include explicit rights-creating language, and is designed to protect such rights. 

On June 27, 2002, the United States Supreme Court decided the following cases:

(1) Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie County v. Earls, Case No. 01-332
Full text: http://laws.findlaw.com/us/000/01-332.html
The United States Supreme Court held 5-4 (opinion by Thomas; concurrence by Breyer; dissents by O'Connor and Ginsburg) that a suspicionless drug testing policy that applies to nonathletes is reasonable in preventing and
deterring drug use among schoolchildren. An Oklahoma High School requires all students to consent to drug testing before participation in extracurricular activities, and then later upon reasonable suspicion or random drawing.  Lindsay Earls and Daniel James desired to participate in show choir, marching band, Academic Team, and the National Honor Society.  Respondents argue that the policy violates the Fourth Amendment because there was no individual suspicion, these activities do not cause a participant to expect to be subjected to regular physicals and communal undress, and there is no real and immediate interest to justify the testing.  The District Court held that the school policy was constitutional.  The Court of Appeals for the Tenth Circuit reversed, stating that the school must demonstrate a need for a drug abuse program.  The United States Supreme Court reversed.  The Court stated that the school, as a guardian and tutor of children, would reasonably undertake such a search because of concern for children's safety, health, and the national drug problem.  Students voluntarily participating in extracurricular activities expect to be subjected to many rules and regulations from the organizations as well as the school.  Also, the character of the intrusion of the collection of the sample is negligible and the test results are kept confidential with no other adverse consequences for a positive test.  Ginsburg's dissent argues that the policy is not reasonable because the targeted population of students is the least likely at risk and the nonathletic activities are not inherently risky.

(2) Hope v. Pelzer, Case No. 01-309
Full text:
http://laws.findlaw.com/us/000/01-309.html
The United States Supreme Court held 6-3 (opinion by Stevens; dissent by Thomas) that an official action is not protected by qualified immunity if the unlawfulness is apparent in light of pre-existing law. Hope, a prison inmate in Alabama, was handcuffed to a hitching post as punishment.  On one of two occasions, he alleges he remained attached to
the hitching post in the sun for seven hours without a shirt, given water only once or twice and allowed no bathroom breaks.  He filed suit in District Court against three prison guards alleging violation of the Eighth Amendment.  A Magistrate Judge concluded only that the guards were entitled to qualified immunity without deciding the Eighth Amendment issue.  The District Court agreed and granted summary judgment for the guards.  The Court of Appeals for the Eleventh Circuit found that the use of the hitching post for punitive purposes violated the Eighth Amendment yet affirmed the District Court decision based on qualified immunity.  The United States Supreme Court reversed on the issue of qualified immunity, concluding that the guards had fair and clear warning that their conduct violated Hope's constitutional rights.  Aside from the obvious cruelty involved in this practice that should have given the guards notice that their conduct violated Hope's constitutional rights, the Court reasoned that prior cases gave fair warning that their conduct crossed the line of what was constitutionally permissible.  The fact that the guards ignored the Alabama Department of Corrections (ADOC) regulation regarding the use of the hitching post indicates that the guards were fully aware of the wrongful character of their conduct.  The Court also recognized the guards' violation of clearly established law, as well as the Department of Justice advice to ADOC to cease use of the hitching post because of its unconstitutionality, as factors in determining the guards had fair and clear notice that prevented the protection of qualified immunity.

EEOC UPDATE: EEOC Rules on Application of ADA Standards to Federal Workforce

The EEOC has issued final rules on application of ADA standards to the federal workforce. Their press release is available at http://www.eeoc.gov/press/5-21-02.html and the full content of the rule can be downloaded from the [Federal Register: May 21, 2002 (Volume 67, Number 98)]. you can access this through http://www.access.gpo.gov/su_docs/fedreg/a020521c.html

SCHOOL BULLYING PREVENTION ACT PASSED AND SIGNED BY GOVERNOR OF OKLAHOMA

On April 20, 2002, the Governor of Oklahoma signed the Bullying Prevention Act. To get a copy of the legislation as signed by the Governor, go to:
http://www.sos.state.ok.us/exec_legis/legislation.asp

In the block called "Number," write in the following: 992

In the block called “Year,” select 2002.

Then, click the "submit" button to begin downloading the statute as signed by the governor.

JUSTIN DART DIES ON JUNE 22, 2002

“Completes His Mission”

The father of the Americans with Disabilities Act" and "the godfather of the disability rights movement, Justin Dart, Jr., died the morning of June 22, 2002, with his wife and partner, Yoshiko Dart, at his side. Mr. Dart will be remembered as person who removed barriers for the whole disability community.

See online at: http://www.jfanow.org/cgi/getli.pl?1531

Justin Dart, An Obituary

http://www.jfanow.org/cgi/getli.pl?1532

Join in Celebrating the Life of Justin Dart

http://www.jfanow.org/cgi/getli.pl?1534

Memories, Tributes and Comments

http://www.jfanow.org/cgi/getli.pl?1536

A Celebration of Justin Dart

http://www.jfanow.org/cgi/getli.pl?1544

Press Coverage of Dart Memorial

http://www.jfanow.org/cgi/getli.pl?1549

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