Developments in Federal Disability Policy During 2009

by Steven Mendelsohn

Public and governmental attention were focused on the economic crisis and on healthcare reform this year, but important legal developments affecting the lives of people with disabilities did occur.  Some of these resulted from the overall response to the crisis; others occurred independently of it.  Some are significant because of what happened; some because of what didn't.

Nothing in what transpired this year suggests a coordinated or consistent federal approach to issues confronting Americans with disabilities.  But on balance, this year's developments (of which space allows mention of only four of the most varied and important) are generally positive.

I.  Employment: We mark the date of a law's enactment with fanfare, but any major legal change takes much time, diligent public education and painstaking stakeholder consensus-building to bring about.  So was it with the ADA Amendments Act of 2008 (ADAAA), [fn 1] that came into force on January 1st 2009.  Although covering all ADA titles -- employment, governmental programs, and public accommodations -- the significance of the amendments, and the major impetus for their enactment, relates to employment.

What Congress did, among other things, in the ADAAA was to repudiate Supreme Court decisions that were contrary to the intentions of the law and that had severely narrowed its scope.  Congress could not readily overcome court decisions that used the Constitution to limit the ADA's scope, but it could articulate new standards for judicial interpretation of the statute, making it clear that previous court interpretations of such key terms as "major life activity," "substantial limitation" of a major life activity, and "regarded as" having a disability were incorrect.  Thus, Congress to ejected, by name, cases that had interpreted the ADA "strictly to create a demanding standard for qualifying as disabled" and that ruled that "to be substantially limited in performing a major life activity under the ADA an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives." The wording of the definition of disability was not changed by the new law, but the way the words were to be applied was.

Under the framework created by the courts, it had become almost impossible for a worker or job applicant to qualify for protection under the law.  No limitation seemed substantial enough, and no life activity seemed major enough to invoke the protection of the law.  Indeed, it seemed that we had reached a catch-22 situation in which in order to qualify for the protection of the act a person had to be so substantially limited in so many major life activities as to be unlikely to be able "to perform the essential functions" of the job, in which case the law could afford no protection either.

To remedy this, Congress defined major life activities -- substantial limitation of which due to a physical or mental impairment would qualify an individual for protection under the Act --  as: "caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working."  In addition, Congress made clear that people come within the definition of disability who have bodily conditions involving "but not limited to" functions of the immune, digestive, neurological, endocrine and reproductive systems.

Another measure taken by Congress for "reinstating a broad scope of protection" was the roll-back of the "mitigating measures" court decisions.  Those decisions had required that the determination of the existence of a disability be made only after medication or other ameliorative measures had been used.  Now (with the exception of ordinary eyeglasses, which may still be taken into account as mitigating measures in determining the extent and functional impact of a visual impairment), this will no longer be the case.

Through the amendments, Congress also sought to improve the atmosphere surrounding interactions between employees with disabilities and employers.  It did this by clarifying what is known as the "interactive process" surrounding the making and handling of reasonable accommodation requests or offers.  Along with bringing about better and fairer accommodations processes, these enhancements were intended to remove uncertainty and confusion from the law by creating "clear and comprehensive" concepts for all to use.  Greater clarity in a number of areas of the law was one of the chief selling points of reform to the business community.  Who is covered and what businesses must do should both become a lot clearer.

And if disputes cannot be resolved and do wind-up in court, Congress made clear in several ways that the focus of inquiry should not be on the threshold issue of whether the individual is a person with a disability, but rather, on whether discrimination has occurred.

To help achieve all its goals, Congress instructed the US Equal Employment Opportunity Commission (EEOC) to revise key definitions and standards in its regulations.  Since employers and courts must look to the administrative regulations for guidance in the application of major laws, this regulatory reform (currently nearing finalization) should add impetus to the changes of atmosphere and focus.

Only time will tell whether Congress' and the disability community's and indeed many employers' aspirations for the new law will be fulfilled.  Courts have many ways to narrow the scope of a law, and historically, our courts have not been in the vanguard of expanding civil rights for people with disabilities, in marked contrast to their role in the struggle for racial and gender equality.

Time will also be required to determine how employer attitudes and practices will be effected by the new law.  Certainly, their consciousness, like that of workers with disabilities, has been raised by the attention surrounding the amendments, but it is hard to imagine that the opportunities for employment of people with disabilities overall will improve materially in an era of double-digit unemployment.


II.  Education: An important development in special education law occurred in the Supreme Court this year.  In the case of Forest Grove School District v. T.A., [fn 2] the Court was called upon to decide whether a school district was obligated to reimburse parents for tuition costs for their son's placement in a private school.  The school district contended that under the facts of this case it was not obligated to pay; indeed that it was barred from paying such reimbursement by reason of a provision of the 1997 amendments to the governing law.

The Court's 6 to 3 decision in favor of the family is important for several reasons.  On one level it is simply a matter of interpreting several provisions of the Individuals with Disabilities Education Act (IDEA).   But on another level, it involves policy considerations going far beyond the statutory language at issue.

IDEA requires that students with disabilities receive a "free appropriate public education" (FAPE).  Issues that bring families and school systems into court against each other under the Act can take many forms.  Sometimes issues arise over what special education services should be provided, and sometimes conflict may occur around how, when and by whom services, needs-assessments and required procedural steps will be done.  But one way or another, most of the disputes that arise under IDEA involve differences over whether the requirement for FAPE has been met.

More contentious than any other FAPE issue is that of student placement.  Schools are required to pay tuition for private school placements when it is determined that such placements are necessary in order for the student to receive a FAPE.  Put another way, if the school district cannot provide or has not offered services amounting to FAPE, then placement alternatives that will offer one become appropriate.  Schools strongly resist having to pay tuition and other costs associated with private school placements, while parents just as vehemently demand what they regard as the best environment for their children.

In the Forest Grove case the parents placed their child in a residential private school without the school district's consent.  Under normal circumstances, their entitlement to reimbursement would have hinged on whether their action was reasonable and necessary, on whether or not the school district was capable of providing FAPE.  That would have been a question of fact, unlikely to present legal issues warranting Supreme Court review.  What made this case different was that in most cases the school has provided services, made a diagnosis, and developed an individualized education plan (IEP) for the child.  Here the decision to place the child in private school had been made without the child's ever having received any special education or related services from the district, and the district argued that the 1997 amendment to the statute barred reimbursement where the school had not previously provided special education or related services to the child.  If the school district was correct, then the merits of the case would not matter, in the sense that under the facts presented no court would have had authority to order reimbursement.  But the school district was not correct.  In finding for the child the Court determined that the 1997 act did not bar the reimbursement.

Space does not permit lengthy discussion of the intricate arguments and principles of statutory construction mustered by the parties in making their cases or used by the majority and dissenting judges in reaching their decisions.  What is most important about the decision is its strong support for the broad remedial purposes of the IDEA, and its endorsement of the notion that courts have broad discretion to grant "appropriate relief," including reimbursement of private school tuition expenses, where they find this necessary to assure the provision of FAPE.

Ordinarily, we might expect courts to be more deferential to the administrative process.  Indeed, in arguing that Congress did intend to restrict private school reimbursement to those who had received prior special education or related services, the dissent notes that the procedural requirements of IDEA would give parents quick access to review and appropriate relief through due process hearings and appeals, even if the school district were correct in its interpretation of the law.

One might expect courts also to be mindful of and concerned about costs, and indeed this court is unanimously concerned about costs.  The majority does not dispute that private school placements are more expensive than public school placements, but goes out of its way to demonstrate to you it believes its holding will not lead to the escalation of such costs.

The attention paid to costs by both sides illustrates an important point.  Although cost played normal part in the statutory sections under examination, it is as a matter of policy, a dimension of any case that the dissent emphasizes FAPE as the guiding objective of special education services, and its endorsement of a high degree of discretion on the part of courts to determine whether the placement proposed by a school district is adequate to meet the student's needs.  In a case like T.A.'s, where the school district had not even acknowledged the existence of problems that interfered with learning and had not offered any services at all, it was manifest that the district had failed to meet the student's needs.

Also worth noting is the fact that cost, while technically having no role in the decision since not mentioned in any of the statutory sections on interpretation of which the outcome hinged, nevertheless played a role in the court's deliberations.  This demonstrates that broad policy considerations, including especially costs in this day and age, can never be excluded from consideration, no matter how narrow or technical the nominal issue up for decision.

In this case one of the issues that divided the majority and the dissent was cost.  The school district contended that if reimbursement were allowed, this would open the way to potentially large numbers of students unilaterally choosing private school then demanding that the public system pay for it.  This consideration worried the dissent.  The majority was quite pains to explain why the risk was minimal or nonexistent.

A final point worth noting is the majority's recognition that appeals procedures within IDEA are often lengthy and cumbersome.

the cases or can be escaped.  In its own right, and as an example of public policy considerations, the discussion of costs illustrates that no court decision can be fully understood unless its public policy and political context are taken into account.

The key question for public policy is whether this decision portends other changes in IDEA, such as reconsideration of the rule, established in case law and enshrined in statute by the failure of Congress to clearly reject it in subsequent amendments of the law, that special education services meet the legal standard if they provide an adequate, not necessarily the optimal, educational opportunities and results.


III.  Hate Crimes: Another milestone occurring late this year marked the success of long-running efforts to expand the federal protections for persons with disabilities who are victims of crime.  As part of the landmark Matthew Shepard and James Bird, Jr. Hate Crimes Prevention Act, [fn 3] people with disabilities were for the first time included among those covered by the law.  This does not mean that any behavior which was not a crime before the passage of the statute will become a crime now.  But it does mean that where crimes are motivated by prejudice or vulnerability, where the fact of the victim's being a person with a disability so a cause of the crime, increased punishment may be available.

For all the populations covered by the Act, the law also gives the federal government new tools for assisting states in prosecuting crimes that would not of themselves ordinarily warrant federal involvement, and it provides resources for training and technical assistance.


IV.  The Stimulus Package: The American Recovery and Reinvestment Act of 2009 (ARRA) [fn 4), contained many provisions of special interest and potential significance for people with disabilities.  Through the funding streams it created, many disability-oriented programs, including vocational rehabilitation, special education, independent living and Medicaid, have received funding for use in offsetting budget cuts or embarking upon innovative programs.  But what may be most important for people with disabilities to remember is that, although ARRA places a premium on job creation or preservation and aims for the speediest possible expenditure of funds, it does not sacrifice civil rights to the urgency of the crisis.

Many of ARRA's disability-related provisions were discussed in the March issue of Equity.  Given our current space limitations, it is enough to note that many of ARRA's provisions, including those dealing with housing, school construction and others, make clear that various civil rights laws, especially those dealing with the accessibility requirements surrounding federally-assisted construction projects, are not waived or compromised.

Officials and businesses understandably anxious to use ARRA funds as quickly and as effectively as possible may well prove more than usually impatient with requirements that bode delay or increased cost, and may too often be construed as special-pleading on behalf of the few at the expense of the many.  But this mindset can and should be avoided.  Recovery cannot take place on terms that increase inequality.  Congress understood this, and all parties to the effort should be mindful of the provisions and the values underlying that awareness.

Issues of accessibility are likely to prove particularly difficult in the build-out of the communications infrastructure.  These issues will be discussed in detail in my forthcoming book.


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Notes

1.  Public Law 110-325.  All quotations from the Act in Section I.  of this paper are drawn from Secs.  2-4 of  P.L.   110-325.

2.  Forest Grove School Contrict v.   T.A.,  557 US --com, 129 S.  Ct.  2484 (2009)

3.  H.R.   2647, Division E, Sec.  4701 et seq.

4.  The American Recovery and Reinvestment Act of 2009, pl 111-5.