Results tagged “Disability Rights”

By 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.

By Associate Dean Michael Waterstone

This op-ed originally appeared in the April 24, 2013 edition of the Daily Journal.

Last week's episode of the popular TV show "Glee" dealt with the issue of gun violence. At the high school where the show is set, two random gun shots are fired. Terrified, everyone shelters in place until the SWAT team gives the all clear. Police search for the culprit. Later, it is revealed that the shots were inadvertently fired by Becky, a character with Down's syndrome. Scared and frustrated that her high school experience was ending, and facing what she believed to be an uncertain future, she decided to bring a gun to school.

"Glee" has received praise and awards for how it contributes to society's understanding of people with disabilities. One of the main characters on "Glee," Artie, uses a wheelchair (although the actor who plays Artie does not). The show has gracefully managed the line between highlighting how thoughtless socially constructed barriers can make Arnie's life difficult, but for the most part, he is just one of the gang going through what all the characters go through: falling in love, deciding what he wants to be, and always singing and dancing. Similarly, having Becky, a character (and actor) with Down's syndrome, allows an exploration of the sometimes stigmatizing ways in which people perceive her, while also allowing her to be a high school student trying to find her way in life. The show does not revolve around these disabilities, but neither does it ignore them.

For many viewers, "Glee" has helped shape perceptions of what it would be like to have a world where people with disabilities are in the mainstream. Culture has power - for too long, the only depictions of people with disabilities in TV, movies, and books were as villains (think Captain Hook or Captain Ahab) or as helpless and childish (think Tiny Tim). "Glee" does much better than that. For other viewers, especially the younger generation, "Glee" is just a reflection of what their world already looks like, where civil rights laws have required the inclusion of students with disabilities into mainstream life to the greatest extent possible. Among other laws, the Individuals with Disabilities Education Act remedied the traditional exclusion of students with disabilities from schools, and the Americans with Disabilities Act has helped improve accessibility of public spaces. When I am teaching my law students about these laws, many of them have grown up with people who use wheelchairs or developmental disabilities in their schools and lives. But for those that have not, often times the characters on "Glee" serve as their proxies for people with these disabilities.

By 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.

By 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.

By 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).

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.

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.

By 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.

By 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.

By Professor Michael Waterstone

Would you be comfortable taking a genetic test to see if you had a genetic predisposition to certain diseases? Even if your doctors tell you it might be medically useful, would you be concerned that the results might somehow come back to harm you? Perhaps your employer might find out the results, and, depending on the results, worry about your future productivity? Or would you be concerned that your insurance company could find out and use this information to raise your health insurance rates?

Ninety percent of Americans feel that taking genetic tests leaves them open to this type of genetic discrimination. In response to these fears, and based on the observations of doctors that patients were not getting genetic information for medical purposes and not participating in research studies, Congress passed the Genetic Information Discrimination Act ("GINA"), which prohibits discrimination on the grounds of a person's genetic information in employment and in the provision of health insurance. Although GINA has been on the books since 2008, a recent survey found only 16 percent of people surveyed knew its protections existed. As in all areas, law takes time to work its way into culture.

I recently attended a conference in Ireland on the need for a European framework to deal with the problems of genetic discrimination in Ireland, cosponsored by the Centre for Disability Law and Policy, National University of Ireland, Galway and the Burton Blatt Institute at Syracuse University. The audience was academics, policymakers and government officials. The chair was Justice John McMenamin of the Irish High Court, and Marian Harkin, a member of the European Parliament, was in attendance. The conference got a nice write up in the Irish Times.

By Paula Pearlman and Shawna Parks

Brown v. Board of Education marked a watershed moment in this country's legal history-- separate is not equal. That moment was equally noteworthy for people with disabilities who have spent the last six decades fighting for full inclusion and equal participation in society and its institutions. Despite longstanding California law, the Rehabilitation Act of 1973, and the passage of the Americans with Disabilities Act in 1990, physical barriers continue to pervade both private businesses and government programs and services. The pervasiveness of these barriers often calls for a comprehensive and thorough response, which is often achieved through a class action.

In both the courts and media, these disability issues are often derided as less important, not worthy of judicial attention, or simply the realm of vexatious litigants. However, in our work, we see physical access barriers directly impact the lives of our clients in very real ways-- preventing a person with a disability from accessing a domestic violence clinic, a classroom, a neighborhood grocery store, or a doctor's office. Even in the U.S. Supreme Court's recent cases involving these issues, it is apparent that real and dramatic barriers persist even in the most critical of government services. Indeed, in Tennessee v. Lane, heard in 2004, the plaintiff who used a wheelchair was forced to crawl up a flight of stairs to appear in court, only to have the court recess. The judge then arrested him when he refused to crawl up a second time.

Fortunately, it is well settled that class certification is appropriate in cases involving systemic challenges to physical access barriers under the ADA and similar disability nondiscrimination laws. Both the ADA and other state and federal disability nondiscrimination statutes require people with disabilities be provided with full and equal access to the benefits afforded to the public by government entities and public accommodations. Many courts, including the 9th U.S. Circuit Court of Appeals, have repeatedly held that actions that challenge failure to remove architectural barriers are suitable for class certification.