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D A I S
A newsletter from Disability Access Information & Support
Providing information and technical assistance regarding
issues of disability in higher education
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February, 2000, Volume IV, No 2
Jane E. Jarrow, Ph.D.
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<<< CONTENTS >>>
1. A NOTE FROM THE EDITOR
2. POSTSCRIPT: MAINSTREAMING V. INCLUSION
3. THE SUPREME COURT TAKES ON CHALLENGE TO TITLE II -- NOT!
4. A TRIUMPH FOR CASEY MARTIN... AND THE ADA!!!
5. "GO TO YOUR CORNERS!!!" A NEW RESOURCE FOR
SERVICE PROVIDERS FROM DAIS
6. THIS MONTH AT THE HOME OF DAIS
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<<< A NOTE FROM THE EDITOR >>>
My thanks to all who have sent in their subscription renewal during the
past few weeks in response to my mailing. While I am converting my
files/filing system, there is a possibility that some folks will receive
duplicate mailings of the newsletter. Sorry for the inconvenience... please
feel free to send any extras along to a friend! If you can't find the
renewal message that was sent, just drop me a line in a reply to this post or
by writing me directly at JaneJarrow@aol.com and I will send another copy of
the notice.
Meantime, be sure to note the introduction of a NEW resource from DAIS,
the Gravy Bowl, available by next week in the Dining Room at the Home of DAIS
(http://www.janejarrow.com/dinroom/index.html ). The purpose is explained in
the article below entitled "Go To Your Corners!!!" I hope you will find it
useful. JEJ
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<<< POSTSCRIPT: MAINSTREAMING V. INCLUSION >>>
I received a lot of very positive comments on my article (rant?) in last
month's newsletter regarding mainstreaming v. inclusion and the ramifications
for all the students coming up through the pipeline -- especially my own.
Just thought I would add this interesting little side-note that has come up
during the last month...
The third grade is going through their national, standardized proficien
cy testing this week. The conversations surrounding Cottie's participation
in this exercise have been interesting.
"Do you want Cottie to take the proficiency tests? She doesn't have to,
you know. Kids on IEP's don't have to take the tests." (NOTE: Their fear, of
course, is that kids with disabilities will not score well on these tests and
will bring down the school and district average!)
"You DO want her to take the tests? Oh. Well I don't know how we can
do that since the tests are standardized. You want her to take the test with
accommodations? Using the interpreter/scribe and large print and extended
time, as she does on her classroom tests? Oh. We've never done anything
like that before. I don't know if we can do that. This is a standardized
test."
" OH! You don't care if her score gets sent in for scoring with the
others? (greatly relieved) Well, yes, then I guess we can do it that way.
But do you really want to put her through all that testing if the test isn't
going to get scored?"
"You want US to score her test, and compare the scores against the
standardized norms? Oh -- THAT's an interesting idea. That would give us a
chance to compare how she is doing with her classmates."
Well, DUH! The thought that they should be tracking her academic
progress -- or that I would care about it -- still appears to be a somewhat
novel occurrence in their experience. After we had worked through just how
the accommodations would be handled, I made one other request. I wanted them
to keep track of how much extended time she needed. I figured that besides
starting to build a record for far distant use (SAT's here we come!), it
would have immediate applicability because it would help us look at how much
time she will need for classroom tests that she is taking with accommodations
and how that is likely to impact on her schedule for other activities.
You'll never guess what the response was...
"Oh, don't worry about that. If she is going to get extra time she can
have as much extra time as she wants. We don't ever limit it. For the kids
who are getting more time there are never any limits."
Why am I not surprised? And why am I still worried about all the kids
coming up through the system who will NOT be otherwise qualified when they
get to us in higher education???
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<<< THE SUPREME COURT TAKES ON CHALLENGE TO TITLE II -- NOT!!! >>>
In our last episode, we found the Supreme Court poised to hear two cases
(Alsbrook and Dickson) that could decide the fate of Title II of the ADA. (Do
you remember the discussion? Did Congress overstep its bounds in passing the
ADA? Is Title II unconstitutional?) Well, folks, I have good news and bad
news.
In the intervening time, BOTH cases were settled and both have been
withdrawn from the Supreme Court's calendar for review. That is both the
good news and the bad news. The good news is that the Supreme Court will NOT
be reviewing constitutionality of Title II of the ADA in the context of these
employment-related cases, which may have muddied the waters in reaching a
decision. Both suits were against public entities (state and/or local
government) but both were brought by employees. If the Supreme Court is
going to rule on the issue of whether requiring the States to make their
programs and services accessible was necessary and appropriate, it would be
nice to have that done in the context of programs and services!!! The bad
news is that the Supreme Court will NOT be reviewing the constitutionality of
Title II of the ADA during the current session. That is, there will be no
resolution to the outstanding questions raised by these cases. (Ed. note: It
also bothers me somewhat that the word is the Dickson case, appealing the
11th Circuit's decision that Title II IS constitutional, was withdrawn
because the State of Florida didn't want to look like it was anti-disability
in an election year -- but that's beside the point!)
The bottom line is that in those Circuits (2, 5, 7, 9, and 11) in which
the Appeals Courts have upheld the ADA, nothing has changed. Unfortunately,
in the 8th Circuit (AR, IA, MO, MN, NB, ND, SD), nothing has changed either
-- the Alsbrook decision is the prevailing law for that jurisdiction, and
Alsbrook threw out Title II of the ADA. That doesn't mean that Title II of
the ADA ceases to exist in the 8th Circuit, but it DOES mean that, for the
moment, there is no teeth to Title II -- you cannot sue the State for
noncompliance in that region. And then, to make matters worse, in a separate
case decided late last summer (Bradley), the 8th Circuit also threw out
Section 504, saying that in keeping with its ruling in Alsbrook, Congress had
overstepped its bounds in stripping the States of their immunity under the
11th amendment and that one cannot sue the State for failure to comply with
Section 504. THAT decision (Bradley) is currently being re-heard in the 8th
circuit and the initial decision has been set aside -- keep your fingers
crossed!). For now, entities in the 8th Circuit are stuck with Alsbrook, and
those in Circuits that have not weighed in on the issue of Title II
constitutionality COULD find themselves facing similar challenges in the next
few months until the issue is resolved.
What does that mean for public institutions of higher education in the
8th Circuit -- or any place else where the constitutionality of Title II is
being challenged? Hopefully, not a whole lot just now. Before
administrators start thinking in terms of "let's not do any more than we have
to -- and Alsbrook says we don't have to!," they are likely to remember
(because YOU are going to remind them, right?) that:
1) While the 8th Circuit has said "no" to Title II, all the other Circuits
who have ruled on the issue have said "yes." When the Supreme Court finally
gets around to making a determination on this issue, it would be (let us say...
grin) politically incorrect to find your institution having to go back and
pick up the pieces of a program that was dismantled because you didn't NEED
to do it so you weren't ABOUT to do it. The State of Florida is not all
wrong -- no one wants to be seen as kicking a guy in a wheelchair!!!
Moreover, regardless of the **legality** of Title II of the ADA, it would be
difficult to argue against the SPIRIT of the ADA; as college campuses spout
wonderful mission statements about access to education and opportunity and
focus on diversity, do they really want to withdraw their active support from
a population who embodies all those things?
2) Until such a time as we hear differently from the re-hearing of the
Bradley case, Section 504 is alive and well in the 8th Circuit, and we all
know that pretty much anything required of the institution under Title II is
also required of them under Section 504.
3) The VAST majority of complaints against colleges and universities are NOT
brought to court -- they are brought to the Office for Civil Rights and are
resolved through that mechanism. OCR has lost none of its enforcement
authority under the Alsbrook decision.
Since we are forced to wait for things to unfold at a higher level,
perhaps we should all be looking at this period of uncertainty to take the
temperature of our institutional climate and commitment to ADA/504. During
the several years of uncertainty between the Grove City decision and the
Civil Rights Restoration Act, most folks in higher education reported little
"backsliding" in programs or services for persons with disabilities, but (too
often) minimal progress forward either. What will happen now? Only time
will tell.
To be continued...
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<<< A TRIUMPH FOR CASEY MARTIN... AND THE ADA!!! >>>
Long time subscribers to the DAIS Newsletter may remember that I was
absolutely fascinated in watching the Casey Martin case as it transpired in
January and February of 1998. Well... I am still fascinated and I have good
news to report!!!
On March 7, the 9th circuit Court of Appeals, out of San Francisco, upheld the
1998 decision of the District Court to allow Casey Martin, a disabled golfer,
to ride in a cart during competition on the PGA Tour (and the qualifying
events that precede it). The PGA offered several objections to the District
Court findings, and the Appeals Court ruled against them on every one of those
objections!
1) The PGA maintained that their tour events were not covered under Title III
of the ADA.
-- The PGA acknowledged that golf courses are specifically listed as
covered entities under Title III of the ADA, but tried to draw a distinction
between the public areas (gallery) at such events and the private area
"inside the ropes" that is the playing area. The Appeals Court said, "we're
not buying it!"
-- The PGA also maintained that Title III should not apply to their
tournament play because their tournaments are highly selective and players
who get to compete are restricted to a very few (that is, this is NOT a
competition open to the public). Interestingly, in rejecting that idea, the
Court used higher education as a comparison! The Court referred to the fact
that private institutions are covered entities under the law -- even highly
selective private institutions. The fact that not everyone is part of the
otherwise qualified population to take advantage of the program doesn't mean
that those who ARE qualified do not represent a portion of the public
entitled to access to that public accommodation.
2) The PGA questioned whether allowing Casey Martin to ride a cart in
competition was a reasonable accommodation as defined by the law. The Court
said, "YES... it is!" This part of the decision actually has some
interesting applicability (at least, **I** think so! grin) to higher
education and situations that we face regularly. We have always recognized
that there are times when an accommodation that is reasonable" in the context
of the individual's disability may not be "reasonable/appropriate" in the
context of the program/curriculum, and that those decisions must be made
sequentially -- and the Court did just that!
-- The first part was easy... is it reasonable, as defined by law and by
Casey Martin's disability, for Casey Martin to use the cart? Is this an
appropriate response to him, personally, knowing his disability and the task
involved. The Court said,
"[6] Here, it is clear that permitting Martin to use a golf-cart
is "reasonable" in the sense that it solves the problem of Mar-
tin's access to the competition. It is also "reasonable," as the
district court found, in that golf-carts are used in other compe-
titions (such as those on the Senior Tour), and it is not a diffi-
cult practical matter to permit them. Use of a golf cart is also
"necessary"; there was ample evidence to support the district
court's finding that Martin could not walk the course, even
with artificial aids. These matters are no longer in serious
contention."
-- But does the use of a cart "fundamentally alter" the competition and
therefore is it NOT reasonable in the context of the program for which it is
being requested? The Court's decision provides some interesting discussion
as to WHY the PGA's arguments in this regard don't hold water. Among other things, the Court
held that the PGA's simple contention that allowing Martin to ride, rather
than walk, alters the competition is an attempt to eliminate application of the word
"fundamentally" in the statute's exception for accommodations that would
"fundamentally alter" the program. "...The mere fact that the PGA has
defined walking to be a part of the competition cannot
preclude inquiry, or the PGA will have defined itself out of reach of the
ADA..." Translation -- the word "fundamentally" was used for a reason and
you cannot dodge consideration of the significance of such alteration simply
by saying, "we make the rules and we say so!" It seems to me that one has
potentially MAJOR implications for us in a discussion of technical standards
and eligibility criteria... just because
the faculty SAY something is essential doesn't preclude us from looking at it
to determine whether that is true!
3) Then the PGA tried to maintain that allowing Casey Martin use of
the cart opens the door for the Courts to inappropriately interfere with
all manner of sports-based decisions regarding such competition:
"The nature of the district court's findings reflect the fact
that whether an accommodation fundamentally alters a com-
petition is an intensively fact-based inquiry. For that reason,
we reject PGA's argument that permitting Martin to use a golf
cart would open the door to future decisions requiring that
disabled swimmers or runners be given a head start in a race,
or that a growth-impaired basketball player be allowed to
shoot 3-point baskets from inside the three-point line. We
have little doubt that fact-based inquiries into the effects of
such accommodations would result in rulings that those
accommodations fundamentally altered the competitions. The
same would be true if Martin were seeking to use a special
golf ball that carried farther than others, or was seeking to
play a shorter course than his competitors. Martin, however,
seeks only to use a cart between shots, and the district court,
after considering the evidence presented in a full trial, found
that this accommodation does not fundamentally alter the
competition."
I think that statement has some major application to our situation in higher
education as well. I am fond of reminding folks, ad nauseum, that ADA
demands case-by-case consideration. That is really all the court was saying
here; since the PGA is obligated to consider circumstances on a case-by-case
basis the court sees no threat to their rules or their ability to enforce
those rules in the decision -- based on the facts of THIS case -- to allow the use of a cart. I think the same is true about an academic decision regarding accommodations, substitutions, time extensions, and so on. I can't tell you whether something is or isn't appropriate based on what is being requested. I can only answer the question in the context of individual circumstances.
When we discussed the Casey Martin case two years ago, I was struck by the recurring wail of those whom I heard come out against his use of the cart: " It may be appropriate for Casey Martin, but if we let Casey Martin ride, WHERE DO WE DRAW THE LINE???" My response, then and now, was/is, "I don't know where you draw the line, but it ISN'T HERE!" I think the Appeals Court just said the same thing.
4) The court then made short work of the PGA's contention that they should
not be asked to make case-by-case review of such requests (undue burden), essentially
reminding them that case-by-case is what it is all about under the ADA.
I think we have a clear winner here, for a change, folks! Casey Martin is
CLEARLY a person with a disability. No ambiguity here (even the
short-sighted Justices from Sutton would have to agree! grin). Morevoer, he
is a person with a disability that the general public will see and
acknowledge as one of the protected class for which the ADA was enacted (no
confusion about whether people with invisible disabilities could/should be
included under the protection of the law). For all the discussion of whether
Title II will live or die, here is a clear victory for the ADA itself under
Title III and, in a way, a vindication for WHY the law was necessary.
Chalk one up for the good guys!!! Now, before someone else tries to upstage me, there was a decision the following day (March 7) from the 7th Circuit Court, regarding a similar request from another pro-golfer (Ford Olinger) in which THAT court denied him the right to use a cart in tournament play. I've read both decisions. The 9th Circuit did a much better job for LOTS of reasons. But that is beside the point. Nothing in that 7th Circuit decision detracts in any way from the 9th Circuit decision, its legal applicability to the PGA and Casey Martin, or to the very compelling arguments it provides in support of the ADA. Let's savor our victories while we can -- and LEARN from them along the way.
(For those who would like to read more about the Ford Olinger decision, there is an op ed piece from yours truly posted to the DAIS website -- read on!)
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<<< "GO TO YOUR CORNERS!!! "
A NEW RESOURCE FOR SERVICE PROVIDERS FROM DAIS >>>
When the DAIS website went online in May, 1998, we established the Dining Room within the Home of DAIS as the place to go for some "food for thought." There folks will find a Faculty Corner and an Administrators' Corner -- places to send your faculty or administrators to read excerpts from (primarily) the DAIS Newsletter that pertain specifically to their concerns and issues in implementing the ADA on campus. I am a great believer in "bibliotherapy" -- the idea that folks will believe what they read in print (whether in a book or online!) before they will believe what they hear. If it can help the service provider to have someplace to send the faculty/administrators online so that **I** can tell 'em what you have been telling 'em, then -- hey -- let's do it! The articles posted to those corners change every month and you are invited to review those posted articles each month and then circulate the url to those on campus you think might be (should be?!) interested.
Some time ago, we added another "Corner" to the Dining Room -- the Technology Corner. This resource is static. It is my personal plea for active consideration of the increasing importance of technology access on campus as the ONLY guarantee of programmatic access for students with disabilities. The initial posting was a series of articles from the DAIS newsletter, and some additional resources have been added along the way.
ANNOUNCING… some additional "food for thought." There are a number of excellent resources, available for purchase commercially, that provide reviews of legal happenings regarding implementation of 504 and the ADA. These reviews are generally written by attorneys. Lately, I have been hearing from a number of service providers who are somewhat frustrated because without a legal education, they can't interpret the importance (or NOT) of a given decision. Moreover, knowing what the Court or OCR said doesn't always tell them how to apply that information to their daily interactions with faculty, administrators, and students. RECOGNIZING THAT I AM ** NOT ** AN ATTORNEY, I am still going to stick my neck out a little here and try to provide some non-legalese translation of some of the legal happenings that are hot. I can't promise that the content will change every month. I will add to the postings as something comes up that I think I can comment on intelligently. I played with the possibility of some catchy title like, "COURTING DISASTER" (which I may be doing in trying to delve into interpreting legal information! grin), but I don't want to suggest that everything happening in the courts/OCR is always negative. So for now, I'm going to call this new feature "The Gravy Bowl," recognizing that gravy makes your meat a little less dry, and thus easier to swallow. I hope you like it!!!
To inaugurate this new resource from DAIS, I will be posting a review of the Ford Olinger decision from the 7th Circuit court that parallels the article above regarding the Casey Martin decision (http://www.janejarrow.com/dinroom/index.html )
Bon Appetit!
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<<< THIS MONTH AT THE HOME OF DAIS >>
(All will be online and available by March 20, 2000 -- maybe sooner! Thanks for your patience...)
In the Faculty Corner, read an article from the January, 1998 edition of the DAIS Newsletter entitled, "Does This Disability Substantially Limit?" (http://www.janejarrow.com/home/dinroom/corners/faculty.html )
In the Administrator's Corner, you will find the article from this newsletter, "The Supreme Court Takes On Challenge to Title II - NOT!" (http://www.janejarrow.com/home/dinroom/corners/admin.html )
And be sure to stop by and dip into The Gravy Bowl for a non-legal interpretation of the 7th Circuit decision in the Ford Olinger case, and how it relates to the Casey Martin decision.
Hope to see you there…
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(End Newsletter)
