Results tagged “Disability Rights Law”

June 5, 2013

Waterstone SJ blog Picture.jpgBy Associate Dean Michael Waterstone

This week, along with some colleagues, I filed an amicus brief in the case of Authors Guild v. HathiTrust et. al. The case involves the cooperative efforts of Google and several universities to digitize their collections. Digital books are accessible to people with print disabilities, which is how I became involved in the case. The Authors Guild and other plaintiffs sued the Universities challenging this digitization under the Copyright Act. The National Federation of the Blind intervened in the case.

The HathiTrust is the name that those universities who received back from Google digital copies of their print libraries gave themselves. The University of Michigan maintains the HathiTrust Digital Library for those 50+ schools, including its own digital collection of about 10 million titles. In the District Court, Judge Baer ruled that (1) the Americans with Disabilities Act imposes on a University to provide equal access to its library program when an accessible digital copy of its print library exists; (2) under the Chafee Amendment to the Copyright Act, the University of Michigan is an authorized entity that can distribute library copies of its print collection to persons with print disabilities in the United States because the ADA imposes on the University, a governmental or nonprofit entity, "a primary mission to provide specialized services relating to . . . education . . . or information access needs of blind and other persons with disabilities" and digital copies are a "specialized format" and (3) the creation and distribution of digital books without the permission of the copyright holder for use by those with print disabilities is a fair use under the Copyright Act.

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January 29, 2013

Waterstone SJ blog Picture.jpgBy Associate Dean Michael Waterstone

On Friday, the United States Department of Education, Office for Civil Rights, issued a guidance detailing the obligations of public elementary and secondary schools to allow students with disabilities to have equal opportunities to participate in extracurricular programs, primarily sporting and athletic activities. I wrote my first law review article on the case of Casey Martin, a golfer with a disability who requested the use of a golf cart in PGA play as a reasonable accommodation under Title III of the Americans with Disabilities Act. Martin eventually won in the Supreme Court.

My first impression about the Education Department's guidance was (happy) surprise that it generated so much media attention (it was picked up in numerous national outlets, including here, here, and here). Sports are important in our society, and the benefits of youth participation in athletic activities are well documented. Too often, as the United States Government Accountability Office found in a recent report, students with disabilities have been excluded from these benefits. So I am gratified that the US Department of Education is using its platform to provide leadership in this area.

But I think it is too early to know exactly what this guidance will mean. Disability advocates are comparing it to an earlier Education Department guidance under Title IX instructing schools to treat female athletics on par with male teams. That effort transformed our society, and every time I coach my six-year old daughter's softball or soccer team I am grateful for it. I am hopeful, but not necessarily optimistic, that this will be the ADA equivalent. This guidance does not break any new ground: it merely clarifies existing legal obligations under Section 504 of the Rehabilitation Act of 1973, which is hardly a new law. The Individuals with Disabilities Education Act, which also requires schools to grapple with the integration of students with disabilities into school life, has absolutely been a transformative statute. But implementation has been slow, and the law is still underenforced.

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November 30, 2012

Waterstone SJ blog Picture.jpgBy Associate Dean Michael Waterstone

On Monday, the Senate will vote on the whether or not to move ahead with ratification of the United Nations Convention on the Rights of Persons with Disabilities. President Obama has already signed this treaty, and, as I have argued before, I believe the Senate should ratify it. I have published an op-ed with the Pacific Standard here on Republican opposition to ratification and why I believe it is flawed.

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October 29, 2012

Waterstone SJ blog Picture.jpgBy Associate Dean Michael Waterstone

My primary research area, disability law, typically doesn't garner a lot of headlines or attention in presidential elections. There was a National Forum on Disability Issues in September of 2012 where both candidates were invited, but neither showed up (President Obama was represented by Ted Kennedy, Jr. and Governor Romney was represented by Rep. Cathy McMorris Rodgers (R-WA)). In a way this is understandable -- disability is a less contentious civil rights issue than some other areas. It may just be a perception that there is less to fight about (and a good fight is what really draws media attention).

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But there are certainly many important issues relevant to people with disabilities that are at stake in this election. A major one is health care. The provision of the Affordable Care Act that stops insurance companies from denying coverage based on preexisting conditions can help people with disabilities move in and out of the labor force without losing their health insurance. This approach, I have argued elsewhere, is part of the explanation of the higher rate of veterans with disabilities, who have access to the VA for some healthcare services. Governor Romney seemed to suggest that his healthcare proposals would also cover people with preexisting conditions, but most analyses I have seen refute this, at least to the extent that it would help people with long term disabilities be more fluid in and out of jobs. Another issue of importance to the disability community is the ratification of the United Nations Convention on the Rights of Persons with Disabilities. President Obama signed the treaty and has urged ratification; as far as I could find, Governor Romney has taken no public position on the issue.

But in this blog post, I'd like to focus on an issue that comes before both of these -- voting for people with disabilities. Given the recent focus on the administration of elections (mostly, as my former colleague Rick Hasen has profiled, based on hazy and unsubstantiated claims of voter fraud), this is timely.

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August 29, 2012

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On August 27, 2012, Loyola was fortunate to host a delegation of 20 Japanese lawyers and academics. These lawyers, all of whom have an interest in disability law and policy, spent the day at Loyola learning about American and California disability law. After an overview of the area from Professor Michael Waterstone (pictured, right), they heard from Professor Sande Buhai, Professor Jan Costello, Professor Michael Smith, and Professor Julie Waterstone (Southwestern) about the ways disability law is taught in American Law Schools. After lunch, there was a distinguished panel of practitioners who discussed their practice experience in this area. Wilmer Harris, a partner at Schonbrun DeSimone Seplow Harris Hoffman & Harrison, LLP, Chris Knauf, the founder and sole proprietor of Knauf Associates, and Autumn Elliot, an Associate Managing Attorney at Disability Rights California, participated in this panel. The delegation then visited the Disability Rights Legal Center at Loyola's Downtown Public Interest Center to hear about their work.

This session was part of an ongoing collaboration between Michael Waterstone and Professor Jun Nakagawa of Professor at Hokusei Gaukuen University and Professor Yoshimi Kikuchi at Waseda University. We look forward to working together on similar events in the future.

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July 17, 2012

Waterstone SJ blog Picture.jpgBy Associate Dean Michael Waterstone

Last week, the United States Senate held an important hearing on the UN Convention on the Rights of People with Disabilities (UNCRPD). The UNCRPD was adopted in December 2006, making it the fastest negotiated human rights treaty in UN history. There are currently 153 signatories to the Convention (with 117 countries having ratified) and 90 signatories to the Optional Protocol (with 66 countries having ratified). President Obama signed the treaty shortly after entering office, and this hearing is the first significant step toward ratification. An account of the hearing by Professor Gerard Quinn (one of the intellectual founders of international disability law) can be found here.

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July 17, 2012

This is a blog post from one of our recent alumni, Andrew Haas, J.D., Class of 2010, who is doing international human rights work this summer with the Centre for Disability Law and Policy (CDLP) in Galway, Ireland.

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This summer I had the honor of working with the Centre for Disability Law and Policy (CDLP) in Galway, Ireland. My assignment was to conduct research on people with intellectual disabilities in prison systems around the world as it relates to a new movement in international disability law after the drafting of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2006. This included a week long "Summer School" that provided an intensive training on the CRPD and its application. The 6-day program, hosted by CDLP and the Harvard Disability Law Project, brought in experts from every corner of the globe, all eager to discover new ways to implement this new legal instrument. Many of the attendees and speakers were part of the original drafters of the CRPD and offered invaluable insights into the treaty and its intended purpose. The President of Ireland, a human rights advocate of his own accord, even gave an inspiring inaugural address to kick-off the conference, and was particularly warm and engaging with the students (I've got pictures of us chatting it up). Interestingly, neither Ireland nor the United States[1] has ratified the treaty, though both nations have signed and positioned legal scholars and lawyers at the forefront of its implementation.

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June 28, 2012

Waterstone SJ blog Picture.jpgBy Associate Dean Michael Waterstone

The Equal Employment Opportunity Commission recently approved a Strategic Plan for Years 2012-2016. This is an important document. The EEOC is the primary federal enforcement agency for the nation's employment laws, with responsibility for the Americans with Disabilities Act, Title VII, the Age Discrimination in Employment Act, and the Genetic Information Nondisclosure Act, amongst others. The Strategic Plan sets enforcement priorities for the EEOC. The EEOC invited input on what the EEOC's national priorities should be for the next three years to have the greatest impact in combating discrimination in the workplace; and recommendations for improving enforcement, outreach and prevention, and customer service.

I submitted these comments, suggesting that the EEOC emphasize failure-to-hire claims in the disability discrimination context. This type of discrimination is the hardest to prove, and these are the hardest cases for the private bar to bring. Yet all evidence suggests this type of discrimination is still happening and limiting the employment opportunities of diverse categories of people with disabilities. Specifically, I advocate that the EEOC should identify cases where employers appear to have a pattern of not hiring employees with disabilities, and that the EEOC consider a testing strategy to ferret out this discrimination, a method which has proven effective in other civil rights contexts.

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March 21, 2012

Waterstone SJ blog Picture.jpgBy Associate Dean Michael Waterstone

Waterstone is guest blogging this month at PrawfsBlawg, on which this piece first appeared.

The Supreme Court announced its decision today in Coleman v. Court of Appeals of Maryland. For reasons I will explain below, I disagree with the plurality decision and think it is one of a growing trend of harmful and indefensible "new federalism" decisions. Spoiler alert: I think Justice Scalia makes a fine point about this jurisprudence in his concurring opinion.

First, the facts: Plaintiff had sued his state employer for damages, alleging that it violated the "self-care" part of the Family Medical Leave Act (FMLA), which entitles an employee to take up to 12 weeks unpaid leave per year for the employee's own serious health condition. In Nevada v. Hibbs, the Court had upheld the constitutionality of suits for damages against states for FMLA's "family care" provisions, which guarantee unpaid leave for the care of a newborn child, adoption or foster care placement of a child, or care of a spouse, son, daughter, or parent with a serious medical condition. But in Coleman, the Court held that Congress had exceeded its constitutional authority with the "self-care" provision. Accordingly, the state is entitled to Eleventh Amendment immunity and the plaintiff's suit for damages is dismissed on sovereign immunity grounds.

In Coleman, the Court held that unlike the family care provision, the self-care provision failed the apparently now sacrosanct City of Boerne congruence and proportionality standard. Under this standard, the Court will assess the evil or wrong Congress attempted to remedy and the means Congress adopted to address that evil. Legislation enacted under Section 5 of the Fourteenth Amendment must be targeted at conduct transgressing the Fourteenth Amendment's substantive provisions and the Court must find that there is congruence and proportionality between the injury to be prevented or remedied and the means adopted to achieve that end.

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March 19, 2012

Waterstone SJ blog Picture.jpgBy Associate Dean Michael Waterstone

Waterstone is guest blogging this month at PrawfsBlawg, on which this piece first appeared.

Here in California, for some time there has been a fairly fierce debate raging between one segment of the plaintiff's bar and the business community relating to disability access litigation. Title III of the Americans with Disabilities Act, a federal law, requires privately owned places of public accommodation (restaurants, movie theaters, bowling alleys, etc.) to be accessible to people with disabilities. The reach of the statute is broad, but the remedies are pretty weak - only injunctions are available. Given the Court's decision in Buckhannon combined with the lack of a damage remedy, often times these are not profitable cases for private attorneys to take, even if they are potentially meritorious.

But under California state law (which offers more protection for people with disabilities than federal law), plaintiffs can get damages for inaccessible privately owned places of public accommodation. Enter a segment of the plaintiff's bar, which brings large number of these cases, often times going after small businesses, and in some instances using questionable demand methods. The business community claims they are being extorted for small "ticky tack" violations which drive their cost of business through the roof (and point to unethical behavior by at least some attorneys/clients who have claimed multiple injuries in multiple places at the same time). Some segments of the disability rights community counter that a violation, no matter how small, can and does have exclusionary and harmful effects on people with disabilities; and that these laws are not new and are not optional. A balanced discussion of the issue can be found here.

In California, one legislative reaction to this situation was SB 1608, which, amongst other things, limited damages and created the California Commission on Disability Access to further study the situation. But I'd like to focus on one other aspect of the SB 1608: it created a program encouraging businesses to hire "certified access specialists" to inspect their businesses for compliance before any litigation. If a business is inspected, they receive an automatic 90-day stay of any lawsuit and may go directly to an early evaluation conference run by the court.

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January 12, 2012

MichaelWaterstone.jpgBy Associate Dean Michael Waterstone

A state task force in North Carolina recently recommended that victims of forced sterilization receive compensation. Today, the idea of the state medically taking away someone's right to procreate against their will seems impossible, even barbaric. But from the 1930s to the late 1970s, North Carolina, like 32 other states, used the now-discredited science of eugenics to justify mandatory sterilization of people with mental disabilities, criminals and other undesirables. The idea was to prevent those who were "unfit" from continuing "their own kind." All in all, more than 60,000 people in the United States were sterilized without their consent.

Why does this matter today? Happily, states do not do this anymore (although North Carolina's forced-sterilization statute remained on the books until 2003). Nevertheless, North Carolina's proposed action here is important for three reasons. First, it sheds light on a practice that is too often neglected in the history books. Reparations of this sort are politically difficult - no doubt, some citizens of North Carolina are wondering why their tax money should go to righting some wrong they were not a part of, instead of toward schools, roads, prisons and other needed areas. But when a state actively participates in an atrocity toward it citizens, it has a moral obligation to make amends and to ensure it never happens again. An action like this - sure to be controversial - puts this issue back in the public eye, and increases the likelihood that it will be a part of how people think about abuses of state authority, even when it is uncomfortable to do so. North Carolina should be lauded for taking steps to do the right thing here.

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August 2, 2011

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By Professor Michael Waterstone

Thanks to Dan and Rick for inviting me to post on the recent opinion in AAPD v. Harris. As Dan notes, the wheels of justice have moved slowly on this case. The original district court opinion (from 2004) is in an earlier edition of my disability law casebook. It held that voting machines requiring voters with visual impairments to vote with third-party assistance violated Title II of the ADA. The Eleventh Circuit previously reversed the district court, holding that plaintiffs did not have a private right of action to enforce the ADA. This decision holds that voting machines are not a facility and therefore are not covered by one of the regulations implementing Title II of the ADA.

Plaintiffs made three specific claims under the ADA. This first is premised on the actual language of the statute. Title II of the ADA (the operative title here) provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity." Plaintiffs' argument is that inaccessible machines prevent them from participating in voting (a public program) in the same manner as citizens without disabilities.

Read the complete post on the Election Law Blog.

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July 8, 2011

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By Professor Michael Waterstone

With the passage of the UN Convention on the Rights of Persons with Disabilities, states across the world are thinking about how their laws and policies concerning people with disabilities comport with this new international standard. Although the United States was not a leader in the UN negotiations, and we have not yet ratified the Convention (although the Obama administration has signed the Convention and urged the Senate to ratify), one domestic based group has been an innovator in working with states on drafting, revising, and implementing disability laws.

This group is the Harvard Project on Disability ("HPOD"). Some nice profiles of their work can be found here and here. HPOD is working with governments and grassroots groups in countries across the world to help develop capacity and technical assistance. In so doing, it is training a new generation of advocates who have the capability to participate and lead a worldwide discussion.

Loyola Law School has collaborated with the Harvard Project on Disability on several projects. I have been fortunate to accompany team members from the Harvard Project on Disability to Vietnam and Bangladesh to assist in their work, with another trip to China planned in the Spring. It has been a transformative experience in my own life. I have seen how some of the most severely disabled, poorest, and most discriminated against people I have ever met can be the fiercest advocates, and rise above their circumstances with the goal of improving their own lives and those of future generations of people with disabilities. I have met government officials who truly would like to pass and enforce legislation which would make people with disabilities more fully members of the citizenry, and are working within their limited resources to do so. These experiences have reaffirmed my belief in international law - the UN Convention on the Rights of Persons with Disabilities has been a catalyst for change across the world, and has given advocates another important tool to use to get their governments to respond. And it has reminded me that what we do domestically matters - people all over the world look up to the United States on disability policy, and seek to replicate our successes and avoid our failures.

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June 9, 2011

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The Disability Rights Legal Center just announced the creation of The Kirkland & Ellis Justice Fellowship, a two-year position to head up the center's newly formed Community Advocacy Program. The goal of the program and the fellowship is to provide members of the disability community with critical information and resources about their civil rights under the Americans with Disabilities Act and other laws.

Given the complexity of legal issues, the DRLC is creating its first-ever fellowship to address the myriad of complex legal issues facing people with disabilities today. The fellowship will also give the next generation of attorneys an opportunity to engage in social justice work at the beginning of their legal careers. The fellowship is named in honor of Kirkland & Ellis LLP in recognition of the DRLC's long-standing pro-bono and co-counseling relationships with the firm, and for Kirkland's generous funding of this new fellowship.

The fellow will work at DRLC's Los Angeles office with other staff in the program, as well as DRLC's clinical law students and pro bono attorneys. He or she will also be responsible for outreach to legal organizations, service providers and other attorneys in order to facilitate meaningful referrals for callers and educate the community about DRLC's services. The goal of the program and the fellowship is to provide the disability community with critical information and resources that will connect them with relevant service providers, provide limited representation on smaller legal matters, facilitate self-advocacy and identify systemic issues appropriate for DRLC impact litigation. Importantly, the fellow will develop at least one area of expertise, such as housing rights for people with disabilities, rights of people who use service animals, the education rights of youth in the delinquency system, or the intersection of race and disability. The fellow will give trainings and write articles in this area of expertise to further the civil rights of people with disabilities in the disability and legal communities. Interested applicants should apply no later than July 8th via DRLC's website.

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June 6, 2011

Michael Waterstone

By Professor Michael Waterstone

A recent Ninth Circuit decision is part of a long-standing debate about the difference between our stated commitment to take care of disabled veterans, and what really happens on the ground.

A group of veterans sued the Department of Veterans Affairs, seeking declaratory and injunctive relief to remedy delays in the provision of mental health care and the adjudication of service-connected death and disability compensation claims by the VA. The Veterans argued that these delays violated their due process rights to receive the care and benefits they are guaranteed by statute. The case dramatically demonstrated the nature of the delays: for example, it takes an average of more than four years for a veteran to fully adjudicate a claim for benefits (during which time many are mooted by deaths). The court was explicit that these delays were not in keeping with our country's stated commitment to veterans, writing "on an average day, eighteen veterans of our nation's armed forces take their own lives. ... Among all veterans enrolled in the VA system, an additional 1,000 attempt suicide each month. Although the VA is obligated o provide veterans mental health services, many veterans with severe depression or post-traumatic stress disorder are forced to wait weeks for mental health referrals and are given no opportunity to request or demonstrate their need for expedited care. For those who commit suicide in the interim, care does not come soon enough."

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January 31, 2011

Michael Waterstone

By Professor Michael Waterstone

This column was originally published in the Jan. 28 edition of the Los Angeles Daily Journal.

People with disabilities face many barriers to becoming lawyers. Applications to law school, which are primarily found online, may not be accessible to blind individuals. For law students with disabilities, a law school may disagree on what accommodations are required for law school exams. There are few clubs or support structures in law schools for these students, in part because their numbers are so few. This in turn, creates feelings of isolation and aloneness. After graduation, law students with disabilities can face invasive questions on their bar applications, such as inquiries as to treatment or counseling for mental, emotional or nervous disorders. These students have to spend significant amounts of their own money documenting their disabilities. Even after they become licensed, lawyers with disabilities report prejudice and stigma: More than half of lawyers with disabilities polled by the State Bar reported being denied employment opportunities because of their disabilities.

Although good data is hard to come by, one study found that only 7 percent of the members of the American Bar Association identified themselves as having a disability (far below the rate of disability prevalence in the general population). This is a problem for our profession. Laws like the Americans with Disabilities Act have brought more people with disabilities into the mainstream of American life, opening up new opportunities across the spectrum. This means that more of our clients have disabilities, and there are more issues relating to disability that are part of general legal issues. Lawyers with disabilities have a life experience that is crucial to working on these legal problems. 

Fortunately, a recent decision by the 9th U.S. Circuit Court of Appeals helps clarify that the law requires fairness and equal treatment in at least one stage of this process. Stephanie Enyart, a law graduate who is blind, asked the National Conference of Bar Examiners if she could take the bar exam with assistive technology software. The Bar Examiners instead offered a reader, an audio CD and text magnification. Enyart sued and provided evidence, which the District Court accepted, that she would suffer eye fatigue, disorientation and nausea if she used the closed circuit television, and that the live reader and audio CD were insufficient to allow her to effectively comprehend and retain the exam content. The Bar Examiners took the position that these were sufficient because the options offered had worked for other individuals who are blind (and had worked for Enyart in the past before her eye condition had worsened). It believed that this was all they were legally required to do.

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January 10, 2011

Michael Waterstone

By Professor Michael Waterstone

This is another installment of Loyola's "11 on '11" series, in which Loyola Law School professors are weighing in on what they expect to be the biggest legal issues in their fields in 2011.

This spring, the Supreme Court will weigh in on Wal-Mart v. Dukes, a case which could have huge implications for both employment discrimination and class action law. Plaintiffs are a class of female Wal-Mart employees alleging sex discrimination. Specifically, they claim that they were paid less than men in comparable positions and received fewer promotions to management positions. The District Court certified a class of more than 1.5 million employees, but the Ninth Circuit reduced the number to 500,000 by excluding female employees who no longer worked at Wal-Mart from the class.

Even at 500,000, this would still be the largest-ever gender bias class action case. Enter the Supreme Court. The order granting certiorari indicates the Court will look at two questions. The first question is whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)--which by its terms is limited to injunctive or corresponding declaratory relief--and, if so, under, what circumstances? Plaintiff's damage claims are for back pay, declaratory relief, and punitive damages, but not compensatory damages. There is currently a Circuit split on the issue of to what extent monetary damage claims are allowable in a 23(b)(2) class action. The stakes here are important: If plaintiffs' damage claims disqualify them from a 23(b)(2) class action, they will need to serve notice to every individual plaintiff and show that common issues predominate over individual ones.

The second question goes more to the heart of whether a class this big can be maintained, asking "whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a)?" The Court will look at whether plaintiffs' evidence--including statistical proof of disparities between men and women, anecdotal evidence, and expert proof on social framework analysis showing susceptibility to gender bias in the management structure--establish a corporate-wide policy of discrimination, an issue that could be common to all women in the class?

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January 4, 2011

Michael Waterstone

By Professor Michael Waterstone

Today, the Ninth Circuit announced its opinion in Enyart v. National Conference of Bar Examiners, and important disability rights case. Several months ago, I blogged about this case here.

Stephanie Enyart, a law graduate who is blind, sued the National Conference of Bar Examiners under Title III of the Americans with Disabilities Act for the right to take the bar exam with assistive technology software (known as JAWS and ZoomText). Enyart prevailed at the District Court level, getting a preliminary injunction to take the exams using this assistive software. The Ninth Circuit affirmed the District Court.

The National Conference of Bar Examiners offered different accommodations than those Enyart requested (the choice of a live reader or an audio CD of the exam, along with the use of a closed-circuit television for text magnification), and argued that this satisfied its obligations under the ADA. Enyart presented evidence, which the District Court accepted, that she would suffer eye fatigue, disorientation, and nausea if she used the closed circuit television, and that the live reader or audio CD were insufficient to allow her to effectively comprehend and retain the language used on the exam. The Ninth Circuit, after giving Chevron deference to a regulation providing that private entities giving exams must assure that the exam is administered so as to best ensure that the exam results accurately reflect the individual's aptitude or achievement level, held that the accommodations offered by the National Conference of Bar Examiners were not sufficient, and that Enyart was entitled to her requested accommodations.

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October 6, 2010

By Professor Michael Waterstone

Michael WaterstoneRECENTLY, there was a new twist in the sad saga of the city of Bell. At the same time he was being hired as Bell's police chief, Randy Adams agreed with Bell city officials that he was disabled. He claims he has knee, back and neck problems and was deserving of a medical pension; skeptics suggest this was a fraudulent move to shield retirement benefits from taxes.

As the case goes forward, we will likely figure out where the truth lies. But this story raises a larger issue. In our legal system, we have conflicting definitions and understandings of disability.

On one hand, disability is viewed as a medical issue. An individual is evaluated by a doctor who determines how severe his impairments may be. If the cumulative impacts of that person's impairments reach a certain level - typically, whether or not the person can work - they are considered "disabled." This label provides the gateway to different types of government benefits and services.

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