James C. Harrington 2015-06-30 09:51:53
The ADA strengthens Section 1983, but more work is needed to improve compliance. THE AMERICANS WITH DISABILITIES ACT IS ONE OF THE MOST COMPREHENSIVE CIVIL RIGHTS LAWS ADOPTED BY CONGRESS WITH BROAD BACKING. Not only has the ADA helped people with disabilities move into the day-to-day life of mainstream America but it also has become the model for other countries around the world and for the U.N. Convention on the Rights of Persons with Disabilities. The ADA requires that public and private facilities, programs, and services be accessible to people with disabilities. This runs the gamut from buildings, stores, parks, music venues, movie theaters, gas stations, and restaurants to jury service, interpreters at state agencies, and Jumbotrons at sporting events—all aspects of living in society. There are five sections of the ADA: public and private employment discrimination (Title I); government entities and public transportation (Title II); public accommodations (and commercial facilities) (Title III); telecommunications (Title IV); and miscellaneous provisions (attorneys’ fees being one) (Title V).1 The ADA enjoys support with a great majority of Americans, probably because disability cuts across boundaries of race, sex, ethnic origin, and age. In fact, the longer people live, the greater their probability of becoming disabled. Because 10 to 15 percent of Americans have disabilities, most people likely have a family member, a work associate, or a friend who has a physical or mental disability. The ADA’s purpose is to promote independence, integration into the community, and self-sufficiency for people with disabilities, rather than relegating them to the shadows of society. The ADA makes sure that a grandmother with a walker can go to a restaurant with her family, an uncle in a wheelchair can take his nephew to a movie and sit next to him, or a deaf patient in the hospital room will have an interpreter. Thanks to the ADA, blind people cast their ballots on machines without having to tell someone else how to mark their vote. When jury summons come in the mail, they ask prospective jurors if accommodations are needed, rather than automatically excluding people with disabilities from service, as happened in the nottoo- distant past. The ADA prohibits discrimination based on disability, perceived disability, or association with a person who has a disability. On the flip side, it also requires reasonable modification to accommodate individuals with disabilities. The exceptions are few and the exemptions limited. Titles II and III may be enforced by the U.S. Department of Justice or through a private cause of action for injunctive, declaratory, and, in the case of Title II, monetary relief, as well as attorneys’ fees, costs, and litigation expenses. In a sense, there are three theories of discrimination under the ADA: intentional discrimination, discriminatory impact, and refusal to make a reasonable modification or accommodation to the needs of a disabled person. While the legal mandate requires reasonable accommodation, whether an accommodation is “reasonable” requires consideration of various factors, such as the size and resources of an entity, the nature and cost of the accommodation, the extent to which the accommodation is effective in compensating for the person’s disability, and whether it would require a fundamental alteration in the nature of an entity’s program.2 These are the general principles of the ADA, but there is yet another benefit to the law. Because of the way it is structured, in many circumstances, the ADA provides a stronger remedy against government action than the traditional civil rights statute, 42 U.S.C. § 1983. Federal court decisions have made civil rights cases more difficult for plaintiffs and, even when successful at the trial level, problematic on appeal. Doctrines of qualified (“good faith”) immunity, interlocutory appeals from the denial of qualified immunity, municipal immunity, and sovereign immunity all coalesce to make traditional civil rights actions under Section 1983 troublesome. The ADA offers an alternative vehicle for vindicating the rights of people with physical, developmental, and mental disabilities beyond that accorded by Section 1983. DIMINISHED IMMUNITIES Because Title II ADA actions lie against state and local government entities and not against individuals employed by those entities (although a person’s actions may cause liability on an agency in theory), issues of qualified immunity do not arise and thus neither does the interlocutory appeal problem. Nor is there municipal immunity. The U.S. Supreme Court, though, has chipped away at the ADA, finding that sovereign immunity blocked discrimination suits for money against state agencies (Title I). However, it ruled that, in the case of Title II, sovereign immunity from damages could be overcome if the ADA served to vindicate a constitutional right, such as access to the courts or proper health care in jail. For all practical purposes, there is not much sovereign immunity for Title II if the case is correctly pleaded. The 11th Amendment sovereign immunity problem arises only with regard to damage actions, not injunctive or declaratory relief. To the extent that state sovereign immunity limits Title II, another disability law—the 1973 Rehabilitation Act (Section 504)—can pick up the slack. Section 504 rests on the spending clause: accepting federal money has an agreed quid pro quo obligation to implement disability law requirements that are the same as those required by the ADA. TITLE II POSSIBILITIES Jails and Prisons Conditions of confinement are subject to considerable civil rights litigation under both Section 1983 and the ADA. In a unanimous 1998 opinion by Justice Antonin Scalia, the Supreme Court held that the ADA extends to state prisons and would apply to medical services, education and vocation programs, libraries, visitations, recreational activities, and boot camps.3 However, Title II in the state prison context will have to be utilized to protect an Eighth or 14th Amendment right, rather than Title II standing alone as it would for city and county jails. But all of this is much better than litigation under Section 1983. Three areas predominate in prison ADA cases: physical accessibility, handling suicidal or mentally ill inmates, and interpreters/ accommodations for prisoners who are deaf or blind. The ADA obligation may be greater than that imposed by Section 1983 because it places an affirmative burden on the officials, making it easier for a prisoner with a disability to prevail. Jails and prisons may not discriminate against prisoners with mental illness or physical disabilities. A case about excessive heat in prison might not be successful under Section 1983 but would have a different result under the ADA if it involved inmates with disabilities (such as asthma, hypertension, or mental illness). Such a suit, of course, would benefit all prisoners. Suicide is a major problem in county jails. For Section 1983 purposes, there is generally not relief because the courts typically find that the facts do not show objectively unreasonable conduct when applied against the subjective deliberate indifference standard on the part of the jailer. There is often a different result under the ADA, given the statute’s affirmative duty to accommodate persons with mental illness and, a fortiori, suicidal tendencies. The accommodations might include specialized training of jail staff, different cell alternatives, heightened medical care, and diligent surveillance. Deaf prisoners are entitled to appropriate interpreting services; the only question is which situations require an interpreter and which allow alternate means. The consensus seems to be that qualified American Sign Language interpreters should be present during important facets of incarceration, such as the booking and classification processes, explanation of jail rules, other-than-routine medical and attorney visits, and grievance hearings. At other times, means such as writing notes, using student interpreters, etc. may pass muster. Title III applies to private prisons and jails. In these cases, the standard negligence theories apply, not Section 1983—although Section 1983 also applies to private facilities. There are no damages available through a private action for a Title III violation. However, an entity cannot contract away its ADA responsibilities; there is joint and several responsibility and liability. In the case of a private jail, for example, both the contracting county and the private jail are liable for noncompliance with the ADA, Titles II and III respectively. By way of caveat, the Prison Litigation Reform Act bars prisoners’ claims for mental and emotional damages without a prior showing of physical injury and has an administrative exhaustion requirement that applies to ADA claims. Police Activities Police often interact with people who have disabilities. The areas where the ADA comes most into play involve accommodation of physical disabilities, appropriate use of force, mental illness calls, and the need for interpreting. The courts, however, do tend to allow police more discretion before and during an arrest than afterward. Police are frequently called to help with an individual who has suicidal tendencies or is threatening suicide. In this situation as well, the ADA would require police to adapt their procedures and policies to accommodate such situations, perhaps by being less confrontational, “talking down” the person, or stepping away from a standoff to give the individual “more space” to calm down. The courts are wrestling with how the ADA applies to these confrontations, especially in the pre-arrest context; the result often varies with whether the court focuses on the confrontation itself or on the totality of circumstances leading up to, and involved in, the confrontation. These are but a few examples of where the ADA can be used in ways that pick up the slack left behind by Section 1983. While we can see dramatic change all around us and the promise of the ADA being implemented, we know we still will have to be vigilant in our efforts to improve compliance with the ADA and realize its goals. The past 25 years have been a good start. Here’s to the future! NOTES 42 U.S.C. §§ 12101-12189. Although the ADA does not apply to the federal government, the Rehabilitation Act of 1973 (Section 504) (29 U.S.C. § 794) does, to the same effect. See, e.g., 45 C.F.R. § 84.12(c)(1-3). Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206 (1998). JAMES HARRINGTON is an attorney, the director of the Texas Civil Rights Project, and former director of the Americans with Disabilities National Network.
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