ILRC Newsletter ~ 3rd Quarter 2004

A recent U.S. Supreme Court ruling in Tennessee v. Lane, No. 02-1667, making states potentially liable for damages for failing to make courthouses accessible to people with disabilities, will likely trigger litigation involving people with disabilities and higher education, social services and other public activities, as well as litigation over the complete definition of “access to the courts.”

The ruling affirmed that states had no 11th Amendment immunity from suits charging that they have violated Title II of the Americans with Disabilities Act when they fail to provide access to the courts. Title II of the ADA bars discrimination against people with disabilities in public programs, services and activities.

The 5-4 majority, led by Justice John Paul Stevens, rejected Tennessee’s argument that the Court should decide whether Title II, as a whole, was an invalid exercise of congressional power under Section 5 of the 14th Amendment. The majority, instead, took an “as applied” approach, limiting its ruling to the category of cases in the underlying suit before it – those involving access to the courts.

For states and the disability rights community, the decision was received as a “mixed bag.” Disability rights advocates won a rare victory in a court that generally has favored 11th Amendment sovereign immunity and has restricted the scope of the ADA. But both sides claimed language in the ruling will bolster their arguments in the battles to come.

“While it’s a narrow victory, it sends a message to lower courts that, on an issue-by-issue basis, there will be litigation involving what is a fundamental right, such as in the gray area of higher education, and there may be litigation difficult [for the disabled community] to defend when not involving a fundamental right, like access to state parks, stadiums, concert halls and the like,” one expert predicted.

Although the Lane decision was limited to access to the courts, that category of cases is not necessarily limited to the physical structure of court buildings, say disability rights advocates and others. It may apply to a broad range of court services, they explain, from interpreters for the deaf to jury service by the deaf and vision-impaired.

There is little empirical data about the accessibility of courthouses to people with disabilities, but there is a strong belief within the disability rights community and among some academics who have studied the issue that a large problem exists.

According to the American Bar Association, since the 1990 enactment of the ADA, courthouse and courtroom access has improved, but lack of access remains a serious problem in many communities.

The ABA noted that every quarterly status report on ADA enforcement issued by the Department of Justice since 1994 identifies “numerous” cases and settlements involving states’ failure to provide adequate access to judicial services.

Since April 2002, the ABA told the Court, at least seven people who are deaf have sued the Minnesota state court system for its failure to provide interpreter services for their court appearances. A 2000 study by a Washington governor’s disability committee found 20 courthouses in that state with access problems under the ADA. The ABA added that, thirteen years after passage of the ADA, many court systems remain seriously in default on even their most basic obligations under the law.

In 1970, said William J. Brown of William J. Brown & Associates, counsel to Charles Lane and the five other disabled people who sued in the Supreme Court case, Tennessee adopted a public policy that public buildings should be accessible, and also adopted a North Carolina building code that was the leading standard for accessible buildings until the ADA. Tennessee, he added, never performed the self-audits required by its own statute or by the ADA to identify problems and to develop a plan for addressing them.

“We sued 25 counties,” said Brown. “After our lawsuit was filed, a number of these counties made some attempt to modify their courthouses. But not one was ever inspected by the state fire marshal as required by law to ensure compliance either with the ADA or the North Carolina building code.”

If the counties had done the self-audits and developed plans only to discover that modifications were cost prohibitive, Brown said he might have been sympathetic. “But they didn’t even do the self-evaluation,” he said. “Fundamentally, what it is, is an unwillingness even to approach the problem.”

Tennessee Attorney General Paul G. Summers noted that the case will now go to trial to determine whether the plaintiffs’ rights to courthouse access have been violated.

There also has been litigation by disabled people, particularly those who are hearing or visually impaired, who want to serve on juries, one expert noted. “I think Lane is broad enough to cover jury service as well,” she said.

But just how broad Lane is, is unclear. In the majority decision, Stevens spoke of how Title II “seeks to enforce a variety of other basic constitutional guarantees, infringements of which are subject to more searching scrutiny.” He listed some of those guarantees, including the public’s right of access to criminal proceedings and a criminal defendant’s right to be present at all stages of a trial where his absence might frustrate fairness.

In a footnote, he added that because the Lane challenge implicated the fundamental right of access to the courts, it was not necessary to consider whether Title II’s duty to accommodate is constitutional when applied to nonfundamental rights.

This as-applied approach to the constitutionality of Title II was not the favored approach of disability advocates, except as a fallback position, said Arlene Mayerson, directing attorney of the Disability Rights Education and Defense Fund. “It leaves disabled people uncertain of their rights and leaves advocates uncertain of the results of any particular case,” she said. “It’s extremely cumbersome and cost and court-time inefficient to litigate every single issue. In that sense, the decision is a setback.”

But the outcome was “clearly better” than the alternative, from the perspective of the disability rights community. Narrowing the ruling to court access appears to be what it took to get Sandra Day O’Connor’s vote, which was key to the ruling in favor of Lane.

Disability rights scholars, states and advocates also are watching for challenges to Title II based on the argument that Congress lacked power to enact it under the interstate commerce clause – another source, like Section 5, of lawmaking authority.

Early in May, the 8th U.S. Circuit Court of Appeals held that there was no commerce clause basis for Title II in a challenge to Missouri’s $2 annual fee for windshield placards authorizing physically disabled people to use reserved accessible parking spaces. Klinger v. Director, Dept. of Revenue, No. 03-2345. The 8th Circuit had previously held that Title II was not an appropriate exercise of Congress’ Section 5 power (now overruled by Lane).

One expert observed, “That’s the importance of Lane. It’s not just about money damages, but it provides one of the fundamental bases for the law.”

Ok, I’m going to go out on a limb here. We have all faced so much doom and gloom, war, economic woe, cuts and crises, that I think it’s time for a change. So, for my message this time, I want you to consider taking care of yourselves in a way you might not have for a while.

Yes, there will be problems, there are problems with the state budget, the national debt, the political process, not to mention voting, but at some point we have to light a little candle in our darkness. It is so easy to get overwhelmed with the day-to-day news with which we are bombarded, we forget to watch the rainbows in soap bubbles, or feel a cat purr, or take a deep breath at evening and notice the jasmine on the breeze.

There are many ways we can add beauty to our lives. Each month, we have a wonderful, albeit small, art exhibition in the Santa Barbara office reception area. Come see it. There are pizza ‘nites’ and happy hours open to anyone who signs or wants to, in all three counties. There are movies, the botanical gardens and kites flying in the afternoon wind on Cliff Dr. I know this is waxing ‘poetic,’ but if we miss these things, and maybe we won’t even notice their passing, they are gone forever.

One of my grandmother’s paraphrases that lives with me and is a favorite is “Live,” said the little moment, “or I shall pass you by.” There will still be dark times, personal troubles, cutbacks and losses, but we can sweeten the times in between by finding beauty and recognizing it.

Along with a consumer/volunteer from Ventura, I attended Capitol Action Day in Sacramento. The event consisted of a Disability Issues Forum, a march and rally, and visits to legislators.

There were seven presenters at the forum that discussed the budget and its impact on everything from the Olmstead Act to the children’s mental health care system to Social Security. There was emphasis on the need for the disability community to advocate across disability lines. In other words, wheelchair users need to be willing to fight for mental health issues and vice versa. Approximately 700 people from all over California attended this very informative forum.

After the forum, we marched from the convention center to the Capitol to participate in the rally—yelling chants along the way. At the rally, we heard music and poetry, listened to speakers like Senator Dede Alpert and Senator Don Perata tell us they intended to vote against cuts to programs that help people with disabilities; others told personal stories and the impact of budget cuts on them.

Toward the end of the day, we went to Assemblymember Tony Strickland’s office and gave his secretary information about ILRC and a copy of the petition against the budget cuts. Our volunteer and I had a great time being part of this statewide action.

Autism Society of America Santa Barbara has a new office at the Tri-Counties Regional Center Annex, 505 East Montecito Street, Santa Barbara. ASA-Santa Barbara has monthly support group meetings and has a variety of interesting speakers. They meet the 4th Wednesday of the month at 7:00 PM. Check out their website at www.asasb.org.

The mission of the Autism Society of America Santa Barbara is to promote lifelong access and opportunity for all individuals within the autism spectrum, and their families, to be fully participating, included members of their community. Support, education, advocacy, and an active public awareness form the cornerstones of ASA Santa Barbara’s efforts to carry forth its mission.

The Scolari’s Friendship Fund was founded in May of 1988, to allow schools, churches and other non-profit organizations to raise money for their own needs and activities

Members of your organization or any Scolari’s Club Card holders who wish to designate their shopping dollars to your organization can do so by filling out a simple enrollment form, listing their Club Card number and ILRC’s four-digit code of 5335. If members are not Club Cardholders, all they have to do is apply for a card and list the four-digit code on the enrollment form. All forms are available at any Scolari’s. Every time you use your Scolari’s Club Card to purchase groceries, 1% of the dollar amount spent is automatically credited to your designated non-profit group’s account. Each month, if the dollars accumulate to $2500 or more, a check will be sent to your organization. To date Scolari’s has donated over 3 million dollars through the Friendship Fund.

Workforce Recruitment Program

The 2004 Workforce Recruitment Program database is now available. Fill your summer or permanent hiring needs with talented college students with disabilities. These candidates, from more than 175 colleges and universities, represent all majors, and range from college freshmen to graduate students and law students. Many levels of experience. An excellent pool to consider for your internship positions. To request a free copy of the entire WRP database on CD-ROM, send your name, company name and mailing address to www.wrp@dol.gov. Please note: if you represent a federal agency, contact (Betsy Kravitz) for information on access to the WRP.

Program Description: Coordinated by the Office of Disability Employment Policy and the U.S. Department of Defense, the Workforce Recruitment Program aims to provide summer work experience, and in some cases full-time employment, for college students with disabilities. The program develops partnerships with other federal agencies, each of which makes a commitment to provide summer jobs and a staff recruiter. Each year, recruiters interview about 1,500 students with disabilities at college and university campuses across the nation, and develop a database listing the qualifications of each student. As of 1996, private sector employers have been able to utilize the database.

Employers in the private and public sectors who are interested in more information about the program should contact (Betsy Kravitz). College career counselors or disability student services providers who would like to schedule a recruitment trip to their campuses in 2005 should also contact (Betsy Kravitz). Students interested in the program must work through their colleges. Due to limited staff resources, the Office of Disability Employment Policy cannot respond to direct student inquiries.

Keith Newerla Wins 2004 NDSA Championship For Riders With Disabilities

For the second consecutive year, Keith Newerla of Seaford, NY won the National Disability Sports Alliance (NDSA) Equestrian Championship for rider with physical disabilities. Riding Ballyshannon, Newerla won the Championship at Good Horseman’s Dressage in the Horse Park at the Georgia International Horst Park in Conyers, GA May 1-2.

With a score of 68.947%, Newerla and Ballyshannon sat in first place following the Individual Championship. The pair turned in a score of 65.625% in the Musical Freestyle, the second phase of competition. A fine performance in the Team Test earned Newerla and Ballyshannon a score of 67.105%, giving them a three-phase score of 67.249%, which could not be beaten.

It was a close competition throughout the weekend with only about .8% separating the top four places overall. Kathryn Groves of Winter Garden, FL finished in second place aboard Fleetwood with an overall score of 66.649%. In third was Robin Brueckmann of Summerfield, NC, who had a score of 66.639% riding Richmond.

The NDSA Championship also served as the Dressage Selection Trial to determine the Short List of riders who will represent the United States at the 2004 Paralympic Games in Athens, Greece. The Short List of riders comprises Newerla, Groves and Brueckmann, as well as Barbara Grassmyer of Placerville, CA, Rebecca Hart of Erie, PA, and Lynn Seidemann of Coppell, TX.

Prior to May 23, these riders competed in one additional event that served as their final qualifier for the Paralympic Dressage Team. The Team will comprise a four-member squad plus two alternates and will be named based on a combination of performance scores and subjective nomination.

The National Disability Sports Alliance is the national governing body for equestrian sport for riders with disabilities. The non-profit organization is responsible for the development and selection of riders for national championships and international competitions, including World Championships and the Paralympic Games, and provides training, competition and advocacy for riders of all levels with physical disabilities.

For more information about NDSA and opportunities to support the programs, please visit their website at www.ndsaequestrian.org, or contact Denise Avolio at (914) 949-8166 or diavolio @ndsaonline.org.

The Independent Living Resource Center, Inc., is an organization of, by and for persons with disabilities who reside or work in our service area. Our purpose is to assist and encourage individuals to achieve their optimal level of self-sufficiency while eliminating the architectural, communication and attitudinal barriers which prevent them from full participation in the community.