The US Supreme Count just decided that a teacher in a religious school may not sue the school for disability-based employment discrimination. 

In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, a long-time teacher experienced health problems that were diagnosed as narcolepsy.  The disorder caused her to take a health-related leave of absence.  When her doctor determined that she was ready to return to work, the school told her that her services were no longer needed.  When she threatened to sue, the school issued a formal termination for doing so, stating that her actions violated the school’s religious doctrine of working out disputes internally.

The Supreme Court applied its “ministerial exception” which says the First Amendment’s freedom of religion provisions limit legal claims against religious organizations and their personnel.  The question in this case was whether the teacher, Cheryl Perich, should come within the exception.  She argued that even though she had the status of a “called” teacher who had some religious duties and provided some religious instruction, most of her duties were not religious and all of her job duties were performed by other teachers who are deemed “lay” and not considered ministerial by the school.  She also argued that the school’s stated reason for firing her – her failure to resolve disputes internally - was a pretext for their real reason: disability-based discrimination.

The Court, in a 9-0 decision, did not agree with Ms. Perich.  The decision said that it would not create a test for deciding when a person is a “minister” and can be discriminated against without interference by the courts.  It was convinced, however, that Ms. Perich did fall into this category.

Since it appears clear that Ms. Perich was the victim of disability-based discrimination, does this decision allow religions to run roughshod over people’s human rights?  No. 

First, the decision notes that this decision does not say that religions are exempt from the criminal law.

Second, the Court discusses a case from Oregon in which the state denied unemployment benefits to a Native American who had been fired for ingesting peyote in a religious ceremony.  In that case, the Supreme Court upheld the denial because the state law was a “valid and neutral law of general applicability” that “involved government regulation of only outward physical acts.”  The case of Ms. Perich, “in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.”

Third, Ms. Perich’s claim that the reason for her firing was pretextual, “misses the point of the ministerial exception. The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter “strictly eccle­siastical.”

Finally, the opinion wraps up by stating that it holds only that the ministe­rial exception bars a suit “brought on behalf of a minister, challenging her church’s decision to fire her.”  It concludes: “We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tor­tious conduct by their religious employers.”

In an interesting concurring opinion, jointly penned by a Catholic and a Jewish justice, it is noted that many religions do not have “ministers” and that many religious figures are not formally “ordained” or appointed.  What matters to them is not, for example, Ms. Perich’s title, but whether she “played an important role as an instrument of her church’s religious message and as a leader of its worship activities.” If so, a religious body has the right to decide for itself whether an employee is reli­giously qualified to remain in office.

The lesson for disability rights advocates who are affiliated with religious groups is to become active within your congregation and religious organization to teach and promote the tenants of disability rights.  Justice is not a matter for only the secular courts.

THE STRUGGLE

The roots of the ADA are imbedded in the civil rights struggles of the 1960s.

Martin Luther King wrote in his Letter From A Birmingham Jail on April 16, 1963:

All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority.  Segregation … ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and awful. 

Overcoming disability-based discrimination has required, and continues to require, "struggle."  Every step toward equality has been hard-fought against entrenched interests and attitudes.  Each victory has needed to be defended.  This experience is common to all civil rights movements.  Disability rights may, however, demand a particularly large change in thinking, both about disabilities and about society.  This new way of thinking is imbedded in the ADA.

The first major step toward the ADA occurred in 1973 with the passage of Section 504 of the 1973 Rehabilitation Act.  Section 504 banned discrimination on the basis of disability by recipients of federal funds.  It was modeled after other civil rights laws that banned discrimination based upon race, ethnic origin and sex by federal fund recipients.

This represented the first time federal law recognized the exclusion and segregation of people with disabilities as "discrimination," and the first time people with disabilities were legally recognized as a class, in effect a minority group.

In 1973 the State of Oregon also passed its first law prohibiting discrimination against people with disabilities.

The Federal Department of Health, Education and Welfare was tasked with developing regulations to implement Section 504.  Only after numerous demonstrations and political actions did that job get done: four years later.  The regulations enacted on May 4, 1977 formed the basis of the ADA.  Disability advocates fought successfully to keep the regulations from being revoked in the early 1980s when business interests wanted to be free from federal interference. 

During the 1980s, there was also resistance from the US Supreme Court.  Disability rights advocates joined in the effort to pass the Civil Rights Restoration Act which overturned a Supreme Court decision that had severely limited the reach of all statutes prohibiting discrimination by recipients of federal funds.  (Grove City College v. Bell).

Legislation was also enacted to overturn Supreme Court decisions and reinstate prohibitions against disability-based discrimination by airlines, reinstate the right to sue states for violations of Section 504, and reinstate the right of parents to recover attorney fees under the Education for Handicapped Children's Act (now called IDEA).

In 1988, the Fair Housing Act was amended to prohibit discrimination against individuals with disabilities and the first version of the ADA was introduced in Congress.

The version of the ADA that passed on July 26, 1990 was introduced Senators Harkin and Durrenberger and Representatives Coelho and Fish (father of City Commissioner Nick Fish).  Justin Dart, Chair of the Congressional Task Force on the Rights and Empowerment of People with Disabilities, traversed the country holding public hearings which were attended by thousands of people with disabilities, friends, and families documenting the injustice of discrimination in the lives of people with disabilities.

THE ACT

The ADA has five sections, or "titles" which are regulated by different federal agencies:

• Title I - Employment - directed by the U.S. Equal Employment Opportunity Commission (EEOC); and the U.S. Department of Labor (DOL).
• Title II - Public Services - (and public transportation) directed by the Federal Transit Administration (FTA); U.S. Department of Health and Human Services (HHS); U.S. Department of Education (ED); U.S. Department of Housing and Urban Development (HUD).
• Title III - Public Accommodations - directed by U.S. Department of the Interior (DOI); U.S. Department of Agriculture (USDA).
• Title IV - Telecommunications - directed by the Federal Communications Commission (FCC).
• Title V - Miscellaneous Provisions.

Some of the key Findings and Purposes set out in Section 2 of the ADA are:

1. Some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older;
2. Historically, society has tended to isolate and segregate individuals with disabilities, and, this continues to be a serious and pervasive social problem;
3. Discrimination against individuals with disabilities persists in employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;
4. Individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination;
5. Individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;
6. People with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;
7. Individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypical assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society;
8. The Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals; and
9. The continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities and costs the United States billions of dollars in unnecessary expenses resulting from dependency and non-productivity.

It is the purpose of this Act--

1. to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities;
2. to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities;
3. to ensure that the Federal Government plays a central role in enforcing the standards established in this Act on behalf of individuals with disabilities; and
4. to invoke the sweep of congressional authority to address the major areas of discrimination faced day-to-day by people with disabilities.

THE ADAAA

With passage of the ADA, Americans with disabilities had a new civil rights law and regulations, but again the US Supreme Court, in a series of cases, began to chip away at their protections.  And again, disability rights activists fought back and were able to obtain passage of the ADA Amendments Act of 2008.

The ADAAA makes four major adjustments to how the ADA is to be applied:

• The term “disability” is to be construed in favor of broad coverage of individuals protected by the Act;
• An impairment that substantially limits one major life activity need not limit other major life activities in order to be a disability;
• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and
• The determination of whether an impairment substantially limits a major life activity is to be made without regard to the positive effects of mitigating measures.

OLMSTEAD

Not to be overly negative about the US Supreme Court, it has made some positive decisions for disability rights over the years.  One was the case of Olmstead v. L.C. and E.W. in 1999.  By a 6-3 vote, the Court found that the 'integration mandate' of the ADA requires public agencies to provide services "in the most integrated setting appropriate to the needs of qualified individuals with disabilities."  In this instance, the Court told Georgia's department of human resources that it could not segregate two women with mental disabilities in a state psychiatric hospital long after the agency's own treatment professionals had recommended their transfer to community care.

THE PRINCIPLES

At the beginning of this short history, I said that a new way of thinking about disabilities and society are imbedded in the ADA.  In short, the ADA recognizes that:

Disability is a natural and normal part of the human experience that does not limit the right to:

• Live independently
• Enjoy self-determination
• Make choices
• Contribute to society
• Pursue meaningful careers and
• Enjoy full inclusion and integration in the economic, political, social, cultural, and educational mainstream of American society.

Rather than focusing on “fixing” the individual, actions must be taken to “fix” or modify the natural, constructed, cultural, and social environment.

Attitudinal and institutional barriers that preclude persons with disabilities from participating fully in society’s mainstream must be changed.

For more information about the ADA, go to: http://www.ada.gov.

I attended a "friend-raising" breakfast this morning for United Cerebral Palsy Association of Oregon & SW Washington.  I've always been impressed by UCP and their director, Bud Thoune, for their high standards and dedication to the lives of the people they serve.

This event did not change my opinion.  On the ticket for the event are listed five principles: Be Visible, Be Independent, Be Involved, Have Friends, Make a Difference.  What a clear expression of how people with disabilities, families and advocates can act to achieve inclusion!  Disability will never be accepted as a normal part of life unless people with disabilities are visible, independent and involved.

We at DRO have been doing our part to be more visible in promoting the rights of our clients and communicating a disability rights perspective to a widening community.  In that spirit, I'm letting you know that Bud reminded us breakfasters that we just marked the tenth anniversary of the Supreme Court's Olmstead decision.  In Olmstead, the Court found that the ADA prohibits unnecessary segregation of people with disabilities in institutions.  That's right.  Congress said, and the Supreme Court agreed, that isolation, dependence and hopelessness must not be promoted by government policies. 

Everyone deserves the chance to lead a meaningful life.  With the love of his family and support from UCP, A.J. will have that opportunity.  But isn't it shameful that a school district would not do what it can to contribute to this simple, yet profound, goal?

Guest speaker Art Edwards brought home the message of inclusion.  Art is a new member of the UCP Board and a reporter for KOIN.  He told us about his family, including his teenage son A.J. who experiences CP and occasional seizures.  His family is about to move to Tigard because its schools have a more inclusive educational approach than their present school system in Beaverton.  Art talked about life with A.J. including A.J.'s strategic use of the horn on his power wheelchair, his love of baseball, and his delight in yelling "flugelhorn!"  The whole family -- Art, his wife and daughter -- are dedicated to A.J. and are willing to make the sacrifices required for him to thrive.  For example, Art's daughter is accepting the move to Tigard because "it will help A.J."

When DRO changed its name last year, we came up with three words that evoke our vision: Opportunity,  Access & Choice.  Above all, I think that Olmstead, the work of UCP and the hopes of A.J. and his family are about opportunity. 

Everyone deserves the chance to lead a meaningful life.  With the love of his family and support from UCP, A.J. will have that opportunity.  But isn't it shameful that a school district would not do what it can to contribute to this simple, yet profound, goal?

Congress enacted IDEA in 1970 to ensure that all children with disabilities are provided  a free appropriate public education [FAPE] which emphasizes special education and related services designed to meet their unique needs and to assure that the rights of such children and their parents or guardians are protected.

 A reading of the Act that left parents without an adequate remedy when a school district unreasonably failed to identify a child with disabilities would not comport with Congress’ acknowledgment of the paramount importance of properly identifying each child eligible for services.

 It would be particularly strange for the Act to provide a remedy, as all agree it does, when a school district offers a child inadequate special-education services but to leave parents without relief in the more egregious situation in which the school district unreasonably denies a child access to such services altogether.

 That IDEA affords parents substantial procedural safeguards, including the right to challenge a school district’s eligibility determination and obtain prospective relief is no answer. The review process is ponderous and therefore inadequate to ensure that a school’s failure to provide a FAPE is remedied with the speed necessary to avoid detriment to the child’s education.

 [T]his case vividly demonstrates the problem of delay, as respondent’s parents first sought a due process hearing in April 2003, and the District Court issued its decision in May 2005—almost a year after respondent graduated from high school.

 States expressly agree to provide a FAPE to all children with disabilities. An order awarding reimbursement of private-education costs when a school district fails to provide a FAPE merely requires the district “to belatedly pay expenses that it should have paid all along.”

 Parents are entitled to reimbursement only if a federal court concludes both that the public placement violated IDEA and the private school placement was proper under the Act.  And even then courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant—for instance, if the parents failed to give the school district adequate notice of their intent to enroll the child in private school. In considering the equities, courts should generally presume that public-school officials are properly performing their obligations.  As a result … parents who “unilaterally change their child’s placement during the pendency of review proceedings, without the consent of state or local school officials, do so at their own financial risk.

 [W]e conclude that IDEA authorizes reimbursement for the cost of private special education services when a school district fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special education or related services through the public school.

 When a court or hearing officer concludes that a school district failed to provide a FAPE and the private placement was suitable, it must consider all relevant factors, including the notice provided by the parents and the school district’s opportunities for evaluating the child, in determining whether reimbursement for some or all of the cost of the child’s private education is warranted.

TA was a high school student in the 6,000-student Forest Grove district.  He had spent most of his educational career in Forest Grove and had never been considered for special education.  When his school work fell off, he was evaluated and found to have attention deficit hyperactivity disorder.   The school district, however, would not provide him with special education services, finding that TA’s disability was not affecting his educational progress. Two years later, TA’s parents enrolled him in a private school and asked Forest Grove to reimburse them for the cost of the tuition.  The school district refused but an administrative hearing ruled that the parents should be reimbursed.  The Oregon District Court reversed this decision but was, itself, reversed by a panel of the 9^th Circuit Court of Appeals.  The US Supreme Court will now make the final call.

DRO signed onto a brief that was submitted in support of TA’s position.  The brief, prepared by DRO’s national organization, the National Disability Rights Network, and others, supports the proposition that parents should be reimbursed when a school district utterly fails to meet the needs of a child with a disability.  TA has also received the support of the US Department of Justice.  It filed a brief stating: "When a child with a disability has been denied a free appropriate public education, IDEA authorizes an award of private-school tuition reimbursement regardless of whether the child previously received public special education."   If this were not the case, tuition reimbursement could "never be available to parents if a school district wrongly refuses to identify their child as having a covered disability."

The legal question in the case, Forest Grove School District v. T.A. (Case No. 08-305), is whether parents in a special education dispute with a school district may be reimbursed for “unilaterally” placing their child in a private school when that child has never received special education services from the district.  It is interesting to note that the Supreme Court heard the same issue in 2007 in Bd. of Ed. of NYC v. Tom F.  In that case, the court deadlocked 4-4, with Justice Kennedy not participating.  All nine justices will decide TA.  And so, if the other eight justices hold their ground, Justice Kennedy will be the decider.

DRO believes that it is essential that students receive appropriate evaluations early on and the special education and related services to which they are entitled under federal law. When schools fail to comply with the law, parents are forced to take matters into their own hands and seek other placements.  Schools should partner with parents so that the student has the benefit of the school’s experience and expertise and does not have to go elsewhere to seek an adequate education.  This cannot be achieved if schools have a fiscal incentive to cut a student loose.

. The case will be argued before the Court on April 28th.