ADA In Focus - Volume 5, Number 2, Spring 2000
Title II of the ADA: Is It Constitutional?
The most recent ADA question to come to the public's attention is: Did Congress exceed its scope of power when it enacted Title II of the Americans with Disabilities Act?
Several states are challenging the constitutionality of Title II. They claim that its requirements force states to take excessive measures to provide access and to grant unreasonable privileges to people with disabilities. Title II of the ADA requires state and local governments to do the following:
- offer services and programs in the most integrated setting appropriate to the needs of the individual with a disability;
- modify policies, practices and procedures when necessary to avoid discrimination on the basis of disability;
- operate each program so that, when viewed in its entirety, the program is readily accessible to and usable by people with disabilities;
- practice non-discrimination and provide reasonable accommodations in employment.
This constitutionality argument arose because some states believe that Congress did not have the authority to enact Title II of the ADA. This argument is based on the 11th amendment to the Constitution LINK HERE (see box on page 4), and related case law, which established states' immunity from Congressional interference. According to the Constitution, Congress can only subject states to legislation in limited circumstances. Section 5 of the 14th Amendment grants Congress the power to pass laws to ensure that states do not deprive citizens of the "equal protection of the laws." In other words, unless the states themselves are violating citizens' constitutional rights, Congress does not have the power to tell states to change their practices.
History of Discrimination?
Case law related to the 14th Amendment says that before Congress can make states comply with a law, they must first establish a record that states are systematically denying citizens their constitutional rights. The passage of the ADA was hotly debated; Congress held hearings, reviewed comments, and created a public record of widespread discrimination practiced by both public and private entities against people with disabilities. Opponents argue, however, that the discrimination was not extensive, intentional, or practiced systematically by the states.
Congress then must clarify that it intends to eliminate the states' immunity, and pass legislation proportionate to the problem. The legislation must seek only to establish protections of citizens' constitutional rights.
Opponents argue that the ADA is not a proportionate response to the problem of discrimination against people with disabilities; they say it requires public entities to go above and beyond what the Constitution guarantees.
Misinterpretation of ADA as Affirmative Action
A federal law can only grant privileges that exceed constitutional guarantees in order to remedy or deter unconstitutional conduct. This concept is akin to "affirmative action." Congress did not intend the ADA to be an affirmative action law, and did not use that term in its language. The ADA does not require that people with disabilities receive preferential treatment, but it does require the provision, for instance, of reasonable accommodations. ADA opponents argue that these kinds of requirements are equivalent to affirmative action, whereas proponents claim that the requirements are simply a "road map" to compliance with the non-discrimination mandate.
Issue of Implementation Costs
The issue of cost is often a factor to those who believe the requirements are unreasonable; no one disputes that building ramps and hiring interpreters cost money. But is it appropriate to require states to spend money, and take other pro-active steps, in order to prevent discrimination against people with disabilities?
In a recent brief, filed in Maryland's 4th Circuit, the state maintains that "the ADA intrudes into every level of state government and interferes with any state law or action that burdens disabled persons . . . In fact, [it] requires affirmative action by states to ensure the removal of barriers to the equal enjoyment of state services and programs . . . as well as employment."
Congress based the ADA on the requirements of Section 504 of the Rehabilitation Act, in place for more than 20 years for state and local governments receiving federal funds. The ADA's requirements, though, are not contingent upon the receipt of federal funds, and some feel that even Section 504's requirements are too broad.
Circuit Courts are split on the constitutionality question, although most have rendered decisions supporting Title II. The Supreme Court was scheduled to hear two cases this spring for a final decision on the issue, but both cases were settled, leaving the matter unresolved. Some believe that statewide political pressure and the plaintiffs' reluctance to bring their cases before a conservative Supreme Court may have led to the last-minute settlements. Although now dormant, there is no question that this issue will arise again. In April, the Supreme Court decided to hear another case, University of Alabama v.Garrett, concerning whether state employees are protected by the ADA. A decision is expected sometime in 2001.
Florida Department of Corrections v. Dickson
Wellington Dickson sued his employer, claiming age and disability discrimination after he was denied a promotion. In January 2000, the age discrimination issue was dismissed when the Supreme Court ruled that the Age Discrimination in Employment Act was unconstitutional. Dickson was then awarded $142,000 to end the matter. This settlement also denies any wrongdoing by the state.
Alsbrook v. Maumelle, Arkansas
Christopher Alsbrook alleged that the city violated Title II by refusing to certify him as a law enforcement officer because of a visual limitation. Although he worked as a police officer in the city for three years, when Alsbrook applied for state certification he was denied. He eventually won his job back and accepted an undisclosed amount as part of the settlement.
The Constitution says
- 11th Amendment (1798) The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.
- 14th Amendment (1868) Section 1...No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor ... deprive any person of life, liberty, or property, without due process of law; nor deny ...equal protection of the laws.
- Section 5...The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Coalition News
Celebrating 10 Years of the ADA
ADA Teleconference: "Breaking Ground"
In celebration of the 10th anniversary of the Americans with Disabilities Act, this teleconference looks at some of the ground breaking cases that laid the foundation for greater access in employment, public services, and public accommodations for people with disabilities. Sponsored by the ADA & IT Information Center for the Mid-Atlantic Region and other Disability and Business Technical Assistance Centers (DBTACs), the program will be led by John Wodatch, Chief, Disability Rights Section, US Department of Justice, and Paul Miller, Commissioner, US Equal Employment Opportunity Commission. For more information, call the ADA & IT Information Center at 800-949-4232 V/TTY.
AAPD Plans the Spirit of ADA Relay
The American Association of People with Disabilities (AAPD) will host a 23-city, cross-country "Spirit of ADA Torch Relay, " to begin in Houston on June 11 and end in New York City on August 7, 2000. The mission of the relay is to connect, inform, educate and involve people across the country in celebrating the contributions of children and adults with disabilities.
"All of us...have benefitted from the achievements and contributions of people with disabilities," said AAPD's Andrew Imparato. "The Spirit of ADA Torch Relay gives us the opportunity to reflect on the progress that has been made over the past 10 years, and renews our commitment to an America that works for everyone."
Ceremonies will be held in designated cities along the route to honor local champions who have helped to further the rights and empowerment of people with disabilities. For more information, visit the website at: spiritofada.org or call the AAPD: 800-840-8844 V/TTY.
West Virginia Plans Celebrations
The West Virginia Statewide Independent Living Council will include a Celebration of the 10th Anniversary of the ADA and the 25th Anniversary of IDEA as part of the 2000 Disability Caucus, July 14-17, 2000 in Charleston, WV. The celebration will include training sessions and meetings designed to help people with disabilities effect change in their communities and across the state.
A march from the Charleston Marriott Hotel to the State Capitol will kick off a rally featuring Anne-Marie Hughey of the National Council on Independent Living and state and local advocates. They will emphasize the importance of these laws, the progress that has been made, and motivation to continue to work to make the ADA and IDEA realities in practice. Participants will then be encouraged to visit legislators and other officials who will be invited to "simulate" disabilities for the day as part of a disability sensitivity activity. Legislators are expected to be available.
For more information, contact Ann Meadows or Kathi Young at: 1-800-642-8207, ext. 4624 or email them at: annwv@citynet.net or kathiy@mail.drs.state.wv.us.
Workforce Investment Act of 1998: What is WIA?
Public Law 105?220, commonly known as the Workforce Investment Act (WIA), was signed into law by President Clinton on August 7, 1998, and will become mandatory in all 50 states as of July 1, 2000. The most important aspect of the Act is its focus on meeting the needs of businesses for skilled workers and the training, education, and employment needs of individuals. A primary objective of WIA is streamlining services by better integration of program delivery through a One-Stop Center system.
WIA establishes Workforce Investment Boards (WIBs) at the state level. These Boards are comprised of business representatives, education providers, labor organizations, community-based organizations and others. Each WIB develops a State Plan for implementation. The Governor of each state establishes local workforce investment areas throughout the state in which local Centers are designated to provide job training, education and employment services at single neighborhood locations. Specifically, adults, veterans, dislocated workers, people with disabilities and youth can receive skills assessment services, information on employment and training opportunities, unemployment compensation services, job search and placement assistance, and up-to-date information on job vacancies -- all at one center specifically tailored to meet the needs of the community it serves.
What Are the Core Principles of WIA?
WIA incorporates seven key principles that are to guide the service delivery:
- Streamlined Services
- Empowered Individuals
- Universal Access
- Increased Accountability
- Strong Business-Led Boards
- State and Local Flexibility
- Improved Youth Programs
How Are People with Disabilities Served?
Congress and the U.S. Department of Labor have made it clear that persons with disabilities are among the intended beneficiaries of this new one-stop system. Programs included in the system must effectively serve individuals with disabilities in the integrated setting of the one-stop center. They must provide accommodations for people with disabilities seeking employment services. In addition, the vocational rehabilitation program in each state must be an integral component of the workforce investment system.
Where Can I Find or Access my Local One-Stop Center?
The U.S. Department of Labor hosts a web site that provides links to One-Stop Centers across the United States. Call 202- 219-8395 v or 800-326-2577 TTY or visit www.ttrc.doleta.gov/onestop/onestopmap.html for more information.
Decisions in Focus
Lawsuit Seeks Installation of "Rear Window" Captioning in Movie Theaters
A class action lawsuit has been filed against three large movie theater chains, claiming they are violating Title III of the ADA by failing to remove barriers and provide effective communication through newly developed technology. "Rear-window" captioning is a system that uses a separate, synchronized projection of captions onto small acrylic screens attached to individual seats. Movie patrons can adjust the screen so that the captions appear to be superimposed on the movie screen. Unlike open captions, which appear directly on the large screen, these "rear-window" captions are not visible to patrons who don't use the system.The Department of Justice, in its analysis of the regulations implementing Title III (effective in 1992), noted that open captioning of movies should not be generally required, partially because it was considered unreasonably distracting and intrusive to the majority of patrons. DOJ also noted, however, that the list of examples of auxiliary aids and services was not all-inclusive, as "It is not possible to provide an exhaustive list, and such an attempt would omit new devices that will become available with emerging technology."
DOJ intended that technological advancements be considered as a possible means to comply with the ADA's general mandate to provide access to people with disabilities, and to meet the continuing obligation to remove barriers in existing facilities. These plaintiffs, according to their attorney, seek to "open movie theater doors to all deaf Americans."Duke University to Make Sweeping Changes Regarding Campus Accessibility
The Department of Justice announced that Duke University settled a case to make accessible several programs and facilities. This settlement will resolve a compliant filed by a student who graduated in 1997. This is the first agreement DOJ has reached regarding widespread accessibility issues at a college or university. "Making the overall college experience accessible is essential to providing equal access for college students with disabilities", said Bill Lann Lee, Acting Assistant Attorney General for Civil Rights. "Duke University is setting an example."
Among other modifications, Duke has agreed to: modify elevators, entrances, and bathrooms; increase regularity of accessible shuttle bus runs; make select dormitory rooms accessible; ensure that all classes and programs in which students with disabilities are enrolled are accessible; widen doorways in half the rooms on floors with accessible rooms in more than half the dormitories; provide accessible parking throughout campus; and pay civil penalties to the United States and compensatory damages to the complainant.
Plaintiffs May Share "Burden of Proof"
A lawsuit was filed against New York's Yankee Stadium alleging that seating for wheelchair users was inadequate. Although the case was settled in December 1999, it produced an interesting opinion on the question of who bears the burden of proof regarding whether or not it is "readily achievable" to remove a particular barrier. The Title III regulations state that it is discriminatory to fail to remove barriers when it is readily achievable to do so.
It has long been assumed by many in both the disability and legal communities that the defendants bear the burden. The judge, however, disagreed with this assertion, finding that the law was not clear on this point. She held that plaintiffs must suggest a method of barrier removal that they believe is readily achievable. They must produce evidence, including expert testimony, regarding the difficulty and expense involved in the suggested action. The burden then shifts to the defendant, who must produce evidence to show that the action is not readily achievable. This case may be considered a precedent in the future.
Latest Resources
Workforce Investment Act (WIA) Publications
The Institute for Community Inclusion has developed a brief, "One-Stop Centers: A Guide for Job Seekers with Disabilities" that describes general information about the One-Stop system and answers questions individuals with disabilities may have about these services. Contact the Institute for Community Inclusion at: 617-355-6506 v or 617-355-6956 tty, or visit their website at: www.childrenshospital.org/ici/newpubs.html to receive a copy.
Prepared by the John J. Heldrich Center for Workforce Development at Rutgers State University, "The Workforce Investment Act of 1998: A Primer for People with Disabilities" describes the major components of the Workforce Investment Act and suggests ways to participate to ensure access to individuals with disabilities. For a copy, contact the Center at: 732-932-4100 V or visit their website at: www.heldrich.rutgers.edu.
ADA Guide for Health Professionals
Health Care Professionals are often a key component in the provision of reasonable accommodations. This guide, "The ADA and the Health Professional: An Introduction to What Health Professionals Need to Know," is a helpful tool to people with disabilities and their physicians. Contact the President's Committee on the Employment of People with Disabilities (PCEPD) at: 202-376-6200 V, 202-376-6219 FAX, 202-376-6205 TTY, or visit their website at: www50.pcepd.gov/pcepd/pubs/adahealt/health.htm.
Educational Kit for Disability Employment Awareness Month
This year's theme for National Disability Employment Awareness Month (NDEAM) is "Ability You Can Bank On." An educational kit reflecting the theme and including fact sheets on accommodating hidden disabilities, alternate dispute resolution, mentoring and self-employment will be available in June. For more information, contact the President's Committee on Employment of People with Disabilities at: 202-376-6200 v, 202-376-6219 fax, 202-376-6205 tty, or visit their website at: www50.pcepd.gov/pcepd/welcome.html.Department of Justice Settlement with the City of Houston on Effective Communication
The City of Houston, TX will significantly improve the way its municipal court system, police department and jail communicate with people who are deaf or hard of hearing, under an agreement reached in March with the Department of Justice. To review the settlement agreement, visit the DOJ website at: www.usdoj.gov/crt/ada/houston.htm or call 800-514-0301, or 800-514-0383 TTY for more information.
New Resource from Job Accommodation Network
JAN recently published a new document entitled, "Effective Communication for Individuals who are Deaf or Hard of Hearing: Providing a Sign Language Interpreter under the ADA" to provide guidance in deciding when an employer must provide an interpreter. Visit the following website to download the document: www.jan.wvu.edu/media/comm.html, or contact the Job Accommodation Network at: 800-ada-work, v/tty.
Cornell University's New Website for Employers
Cornell University's Program of Employment and Disability has developed a new website for employers on "Accommodating Workers with Visual and Hearing Disabilities." Created to address the increasing numbers of employees with diminished vision and hearing, this website provides useful information to employers and consumers with disabilities. Visit the site at: www.ilr.cornell.edu/ped/accessforall
Workforce Investment Act Websites
wdsc.org/disability/htmldocs/about_us.html: Visit this website to learn how the Department of Labor's Employment and Training Administration (ETA) operates to ensure that people with disabilities are provided equal access to Workforce Investment Act programs and services.
ttrc.doleta.gov/onestop/onestopmap.html: The Department of Labor (DOL) provides a US map with links to State One-Stop Centers. Visit this site to learn more about WIA and how to contact your nearest one-stop center.
Career Net is a state on-line service delivery system developed under the Workforce Investment Act (WIA) to help find jobs for people and people for jobs. The following are WIA websites in the Mid-Atlantic region.
Delaware: www.vcnet.net
District: does.ci.washington.dc.us
Maryland: www.careernet.state.md.us
Pennsylvania: www.pacareerlink.state.pa.us/homeframe.asp
Virginia: www.careerconnect.state.va.us
West Virginia: www.state.wv.us/bep/JOBS/JSLocate/Default.htm
ADA In Focus is intended for use by individuals, state and local governments, businesses, legal entities, and others interested in developments in the Americans with Disabilities Act. This publication is intended solely as an informal guidance and should not be construed as legally binding. ADA In Focus does not serve as determination of the legal rights or responsibilities under the ADA for any individual, business or entity.
ADA in Focus is published three times yearly by the ADA & IT Information Center for the Mid-Atlantic Region.
The staff of the ADA Information Center is available to provide information on all aspects of the ADA to individuals, businesses, government entities and organizations in the Mid-Atlantic Region.
ADA In Focus is intended for use by individuals, state and local governments, businesses, legal entities, and others interested in developments in the Americans with Disabilities Act. This publication is intended solely as an informal guidance and should not be construed as legally binding. ADA In Focus does not serve as determination of the legal rights or responsibilities under the ADA for any individual, business or entity.
Richard G. Luecking, President
Marian Vessels, Project Director
Ann Deschamps, Ed.D., Director of Training and Evaluation
Mark Derry, Technical Assistance Specialist
Alison S. Levy, Technical Assistance Specialist
Kimberly Antonelli, Editor
Donna Stewart, Administrative Assistant
TransCen, Inc. is a Rockville, MD-based firm specializing in human resources issues that impact workplace diversity. TransCen administers the ADA & IT Information Center, providing business and technical assistance to DE, DC, MD, PA, VA and WV.
This is a publication of the ADA & IT Information Center for the Mid-Atlantic Region, which is funded by the National Institute on Disability and Rehabilitation Research of the U.S. Department of Education under Grant No. H133D60006. The opinions contained in this publication are those of the grantee and do not necessarily reflect those of the Department of Education.
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Affiliates of the ADA Information Center
The ADA & IT Information Center works with state affiliates throughout the region to provide information, materials, presentations and resources to the local community so businesses, government entities, and individuals are aware of their rights and responsibilities under the Americans with Disabilities Act.
The various state affiliates, working as ADA Coalitions, represent the local resource by which the ADA & IT Information Center can network to ensure the needed information is made available to anyone working to provide equal opportunity to people with disabilities.
By working together to eliminate misinformation and provide resources that are accurate, we are helping to provide positive solutions to questions being faced by employers, governments, businesses, and people with disabilities.
Listed here you'll find the Coalition that is closest to you, with information on how to reach them:
Delaware
Statewide Coalition for the ADA (SCADA)
100 West 10th Street, Suite 409
Wilmington, DE 19801
tel/fax 302-427-7499
emailscada2@juno.com
Contact: Bob Cichocki, Coordinator
Washington, D.C.
Disability Rights Council of Greater Washington
1300 19th Street NW, Suite 500
Washington, D.C. 20036
tel 202-822-9189 tty 202-822-9199 fax 202-835-0291
email rights@erols.com
Contact: Julia Bell
Pennsylvania
The Pennsylvania ADA Coalition
For more information,
contact the ADA & IT Information Center at:
1-800-949-4232 v/tty.
Virginia
The Virginia ADA Education Coalition
c/o The Arc of Virginia
6 North 6th Street, Suite 403-A
Richmond, Virginia 23219
tel 804-649-8481 fax 804-649-3585
email arcva@richmond.infi.net
Contact: Linda Moore
West Virginia
Northern West Virginia Center for Independent Living
110 Greenbag Road
Morgantown, WV 26505
tel/tty 304-296-6091 fax 304-291-9071
email nwvcil@cyberplanet.net
Contact: Tony Miralles
Maryland
The ARC of Maryland
49 Old Solomons Island Road, Suite 205
Annapolis, MD 21401
tel/tty 410-974-6139 fax 410-974-6021
email adamd@erols.com
Contact: Pam Wilson
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