Loyola's Coelho Center Founder Tony Coelho Statement About Former President George H.W. Bush's Passing

As a driving force behind the Americans with Disabilities Act (ADA), Coelho worked closely with then-President Bush to pass the groundbreaking legislation

                    

LOS ANGELES – Loyola Law School, Los Angeles’ The Coelho Center for Disability Law, Policy & Innovation founder and former U.S. Congressman Tony Coelho has been a key advocate for those with disabilities over the span of his career. As a driving force behind the Americans with Disabilities Act, or ADA, Coelho worked closely with then-President George H.W. Bush to pass the groundbreaking legislation.

Coelho today released the following statement:

“Former President George H.W. Bush was one of the greatest men I ever knew. He was a great leader and humble public servant. He demonstrated true leadership in fighting for and signing into law the Americans with Disabilities Act (ADA) – a crucial piece of legislation in the last thirty years, and one of his greatest legacies.

Now, 28 years later, people have forgotten how truly groundbreaking and controversial the ADA was at the time. But, back then, President Bush knew well the historic significance of his actions. I remember his words:

‘Last year, we celebrated a victory of international freedom. Even the strongest person couldn't scale the Berlin Wall to gain the elusive promise of independence that lay just beyond. And so, together we rejoiced when that barrier fell.

Now I sign legislation, which takes a sledgehammer to another wall, one that has for too many generations separated Americans with disabilities from the freedom they could glimpse, but not grasp. Once again, we rejoice as this barrier falls, for claiming together we will not accept, we will not excuse, we will not tolerate discrimination in America.’

On that day, President Bush spoke of ‘a coalition in the finest spirit—a joining of Democrats and Republicans’ in working together to craft the ADA. And he recognized the effort’s global impact: ‘This historic act is the world's first comprehensive declaration of equality for people with disabilities – the first. Its passage has made the United States the international leader on this human rights issue.’

Passing the ADA was not without controversy. There were powerful forces opposed to the ADA. I asked the President directly about the significant opposition he was facing. His response to me was simple and direct: “This is of personal interest to me and what you’ve done is what I want.” His final words, right before signing the ADA, sum up his conviction: ‘Let the shameful wall of exclusion finally come tumbling down.’

May God Bless President George H.W. Bush for taking a sledgehammer to the shameful wall of exclusion by signing the Americans with Disabilities Act – his greatest accomplishment. And, may President Bush rest in peace. His greatest legacy, the ADA, lives on. He was my hero and I will miss him as a friend.” 

About The Coelho Center for Disability Law, Policy & Innovation

The Coelho Center, housed at Loyola Law School, Los Angeles at Loyola Marymount University (LMU), pursues a unique three-pronged mission: convening thought leaders to pursue positive change on disability issues; leveraging technology to advance the lives of people with disabilities; and creating a pipeline of lawyers with disabilities to populate the bench and hold elected office. The Coelho Center also draws on multiple areas of expertise from other LMU colleges. Founded by former congressman, disability rights icon and LMU alumnus Hon. Tony Coelho (LMU ’64), The Coelho Center is the only organization of its kind at a Catholic university in America and the only one housed at a top U.S. law school. Details about The Coelho Center are available at www.lls.edu/coelhocenter.

About Loyola Law School, Los Angeles                    

Located on an award-winning Frank Gehry-designed campus in downtown Los Angeles, Loyola Law School is home to prominent faculty, dedicated students and cutting-edge programs. The Law School strives to instill in students the knowledge they need to excel on their chosen paths. It dedicates itself to preparing students for the rigors of practice with an extensive portfolio of practical-training opportunities, an 18,000-strong alumni network and a focus on social justice. Learn more at www.lls.edu.

MEDIA: Tony Coelho is available for phone-in interviews to discuss President George H.W. Bush’s legacy with regard to the ADA. To arrange an interview, please contact Loyola's media relations office.

A Conversation with Dean Michael Waterstone

On June 1, 2016, Michael Waterstone became the 18th dean of Loyola Law School, Los Angeles. Waterstone, who also is senior vice president at Loyola Marymount University, is a nationally recognized expert in disability and civil rights law. He has consulted on projects for the National Council on Disability, authored a case book, and worked with foreign governments, non-governmental organizations and academic institutions on disability rights laws. He also is an associated colleague with the Harvard Law School Project on Disability.

Waterstone first joined Loyola's faculty in 2006, teaching civil procedure, disability law and employment law. He served as Associate Dean for Research and Academic Centers from 2009–2014, chairing the employment committee. In 2014-2015, he was a visiting professor at Northwestern University School of Law, where students selected him as the Outstanding First Year Professor.

Prior to his tenure with Loyola Law School, he taught at the University of Mississippi Law School. He also worked as an associate in the Los Angeles law firm of Munger, Tolles & Olson, LLP for three years, focusing on commercial litigation.

A native of Los Angeles, Waterstone earned his law degree in 1999 from Harvard Law School and his B.A. in political science from UCLA.

We sat down with Dean Waterstone at the law school’s Frank Gehry-designed campus located in downtown Los Angeles to talk about Loyola, his experience, and his new role as Dean.

What is special about Loyola Law School?
Our Jesuit tradition teaches us the importance of educating the whole person. One of the things that distinguishes Loyola Law School is our commitment to social justice. Our students are using their legal education to help make the world a better place, however they define that. That has always been a key part of who we are and always will be. Our pro bono commitment is a longstanding reflection of that fact.

As a lawyer at private firm you also did pro bono work.
I was a commercial litigation lawyer for three years, and I found the work interesting and I liked solving problems. At the same time, I also had a pro bono practice in disabilities rights law.

What drew you to disability rights law?
I had a cousin with muscular dystrophy. I think when you have a family member with a disability you tend to see some things differently. I wrote my third-year paper on the Casey Martin case — the professional golfer who sued [the PGA Tour for the right to use a golf cart during competition] under the Americans with Disabilities Act. I felt like there was so much up for grabs in this area. People with disabilities are a diverse community that has tended to be excluded from society and not had full rights in a number of areas. It has been a wonderful professional journey to try to use law to change that, and we’ve come a long way but there is certainly still a long way to go.

Garland on the Rights of People with Disabilities

By Dean Michael Waterstone

This op-ed originally appeared in the April 28, 2016 edition of the Los Angeles Daily Journal.

What would Justice Merrick Garland mean for the U.S. Supreme Court? Despite signals that recalcitrant Republicans want to avoid this discussion, I hope lots of different groups begin to have a public dialogue about this important question. I teach, research and write in the area of disability law, a subset of civil rights law. Laws like the Americans with Disabilities Act have helped people with disabilities attain full citizenship in our country, yet there is still a long way to go.

Cases involving the civil rights claims about people with disabilities raise important questions involving individual rights, business' ability to comply with regulations in a cost-effective manner and state power. There are no easy answers. Yet one important thing about disability law is that it has tended to transcend typical left-right and Democrat-Republican divisions. Even in an era of extreme polarization, laws protecting the civil rights of people with disabilities have still been passed. There are lots of open legal questions within disability law, but ones on which there are potential political and judicial consensus. This makes the choice of the next Supreme Court justice an important one, and one about which lots of people should care. Disability is a growing category - it is the one minority group we could all join at any time.

Judge Garland does not himself have an obvious disability or life experience with disability that is yet part of the public record. So the cases he has decided offer the best road map for what his decision-making in this area might look like. Garland has written hundreds of opinions and participated in thousands of cases - here, I only have space to talk about a few, focusing on opinions or dissents Garland wrote himself.

Bringing Disability into Constitutional Law Discussions

By Professor Michael Waterstone
 
This was originally posted on American Constitution Society for Law And Policy as part of their 2015 Constitution Day Symposium.

Disability should be included in constitutional discussions. For the most part, it has not been. The doctrinal resting place of disability constitutional law is a bad one – under Cleburne, government classifications on the basis of disability are only entitled to rational basis scrutiny. Especially given that there is a statute, the Americans with Disabilities Act, that in many ways goes further than what constitutional law could require, disability cause lawyers have not brought cases under constitutional theories. And, tracking this, the progressive academic discussions of the Constitution’s future and potential do not usually include any discussion of disability.

Disability Constitutional Law

By Professor Michael Waterstone
 
This was originally posted on American Constitution Society for Law And Policy

This week is the 25th anniversary of the Americans with Disabilities Act (ADA). The ADA prohibits discrimination on the basis of disability in employment, government programs and services, and privately owned places of accommodation. It was and remains an ambitious law, requiring employers and business owners to make reasonable accommodations, at their own expense, to be more accessible to people with a wide range of disabilities. And although there is still a long way to go, the ADA should be celebrated for its role in moving people with disabilities into the mainstream of society.

ADA at 25, Chicago style

By Professor Michael Waterstone

Prof. Waterstone is guest blogging on Prawfsblawg, where this post originally appeared.

On Friday, I had the good fortune of attending the kick off event for ADA25Chicago. There are a lot of celebratory events and academic conferences planned this year commemorating the 25th anniversary of the ADA, but this was different. It brought together politicians (including Dick Durbin and Tammy Duckworth), corporate figures (including the President/COO of Motorola, where the event was held), and civic leaders (including representatives of the Chicago Community Trust), as well as state and local government. These individuals did not just give speeches, but expressly set the stage for actual commitments.

The organizers had already gathered pledges from Chicago civic organizations and employers to establish programs to advance opportunities for people with disabilities, to create programs within six months throughout the region to increase civic engagement around disability issues, and to develop lasting “legacy projects” around the key themes of employment, education, and community living for people with disabilities. ADA25Chicago has already planned a visible presence sponsoring events at Chicago’s many summertime festivals and cultural events (disability awareness, good food, and craft beer? Count me in!). And there are specific plans in place to hold these groups publicly accountable for their commitments.

I posted earlier about the disconnect between how those inside and outside the disability rights community view disability issues. ADA25Chicago is one of the most sophisticated efforts I have ever seen to address that gap. By gathering elites, and creating a plan to mobilize and hold their feet to the fire on accountability, this was a really exciting beginning. I really look forward to watching how this all unfolds.

A Deeper Introspection of Police Behavior: Treatment of People with Disabilities

By Professor Michael Waterstone

This op-ed originally appeared in the Los Angeles Daily Journal.

A police encounter with an individual goes horribly wrong and leads to great bodily harm or even death of that individual. Some argue that even though there were tragic consequences, the police action was regrettably justified. Others view this awful occurrence as providing direct evidence that the police acted inexcusably and perhaps even criminally, at some level not respecting the fundamental humanity of the individual. It reflects still-existing power imbalances and institutionalized racism in our society.

This narrative fits Michael Brown and Ferguson. Or Eric Garner. And indeed both of these cases stimulated a national and painful conversation about police and their encounters with citizens. Those who confront these issues on an all-too-often basis express their frustration, leading to protests and even violence. People who may not think often about racial justice are drawn in and forced to think about uncomfortable issues. Either way, hard questions about police training and their role in society are teed up. Everyone has an opinion.

But this first paragraph applies equally to another fact pattern that occurs all to regularly, yet one that most people do not think about or realize. It reflects the case of Teresa Sheehan, currently before the Supreme Court (City and County of San Francisco v. Teresa Sheehan). The following facts are drawn from the briefs in the case.

HILJ Online Symposium: The Next Step

By Professor Michael Waterstone

This post originally appeared on Opiniojuris.com.

I am grateful that the Harvard International Law Journal and Opinio Juris have asked me to write a response to The Democratic Life of the Union: Toward Equal Voting Participation for Europeans with Disabilities, written by Janos Fiala-Butora, Michael Stein and Janet Lord. This Article seeks to put forward “preliminary legal scholarship on equal political participation by persons with disabilities and what international human rights law requires for its attainment.” Given their various experiences as academics, international human rights lawyers, and academics, the authors are certainly well suited to this task (and I should note that two of the three are former co-authors and friends).

As I see it, this Article makes three significant points: (1) it describes Kiss, a European Court of Human Rights decision holding that Hungary had unjustly and indiscriminately taken voting rights away from someone solely by nature of his being placed under guardianship, and critiques the decision for offering limited standards for what type of individualized inquiry is required to restrict the franchise; (2) argues that under international law, states should not be able to disenfranchise persons on the basis of disability, even in the case where individual assessments are made; and (3) challenges Martha Nussbaum’s suggestion that states should authorize guardians to vote on behalf of individuals who are neither able to form a view on political issues for themselves nor communicate their choices to others (the authors would not have a guardian exercise decision-making, meaning that those who cannot vote – properly construed, a small number – do not vote).

Read the complete post.

Being Responsible Gatekeepers

By Professor Michael Waterstone

This post originally appeared on Law.com.

Who we allow, and even encourage, to join our ranks says a lot about our profession.  For too long, lawyers were almost entirely white males.  There is still a lot of work to do to make the legal profession more accurately reflect the society it serves.  But we have made progress.  Organizations like the California Bar’s Council on Access and Fairness have been looking examining and gathering evidence about how to increase the pipeline for underrepresented groups to become lawyers, in some cases with measurable successes.

Unfortunately, people with disabilities are still incredibly underrepresented.  The few studies to examine the issue have found that there are few, and in some states miniscule, attorneys with disabilities (for example, in 2009, Colorado estimated .15% of its lawyers had a disability).  Although in some cases these numbers may be an example of underreporting, by any measure they are too low.  This is in part based on a pipeline problem.  According to an American Bar Association study, individuals with disabilities are less likely to apply and be admitted to law school.  This means that the few students with disabilities can experience isolation when in law school.  And when they enter the profession, new lawyer with disabilities have fewer role models who can identify with their experiences.  Our profession reflects a lack of lawyers with disabilities in leadership positions in private practice or in bar associations. Unsurprisingly, lawyers with disabilities report problems with courthouse accessibility, accommodations, and in some cases outright discrimination.

Associate Dean Waterstone files amicus brief in Authors Guild v. HathiTrust

By Associate Dean Michael Waterstone

This week, along with some colleagues, I filed an amicus brief in the case of Authors Guild v. HathiTrust et. al. The case involves the cooperative efforts of Google and several universities to digitize their collections. Digital books are accessible to people with print disabilities, which is how I became involved in the case. The Authors Guild and other plaintiffs sued the Universities challenging this digitization under the Copyright Act. The National Federation of the Blind intervened in the case.

The HathiTrust is the name that those universities who received back from Google digital copies of their print libraries gave themselves. The University of Michigan maintains the HathiTrust Digital Library for those 50+ schools, including its own digital collection of about 10 million titles. In the District Court, Judge Baer ruled that (1) the Americans with Disabilities Act imposes on a University to provide equal access to its library program when an accessible digital copy of its print library exists; (2) under the Chafee Amendment to the Copyright Act, the University of Michigan is an authorized entity that can distribute library copies of its print collection to persons with print disabilities in the United States because the ADA imposes on the University, a governmental or nonprofit entity, "a primary mission to provide specialized services relating to . . . education . . . or information access needs of blind and other persons with disabilities" and digital copies are a "specialized format" and (3) the creation and distribution of digital books without the permission of the copyright holder for use by those with print disabilities is a fair use under the Copyright Act.

Our amicus brief, filed on behalf of professors who teach and research in disability law, argues that Congress's goals in passing laws like the Americans with Disabilities Act was to transform the role of people with disabilities in society. Consistent with this, we explain that often times neutral laws of general applicability (like the Copyright Act) could be viewed as in apparent conflict with disability rights laws. We argue that in these instances, it is proper for courts to attempt to harmonize these laws to allow them both to accomplish their purposes, which is what the district court did here. The court was correct in considering the needs of people with disabilities in the analysis of the right to fair use, and by interpreting the Chafee Amendment to provide that the University of Michigan is an authorized entity that can distribute digital copies of books in its print collection to persons with print disabilities in the United States. Until we achieve a world where concepts like universal design are the norm, to meet Congress's goals of inclusion for people with disabilities, accessibility is achieved through modification and accommodation of existing structures, programs, services, and activities.

Disability and Sports

By Associate Dean Michael Waterstone

On Friday, the United States Department of Education, Office for Civil Rights, issued a guidance detailing the obligations of public elementary and secondary schools to allow students with disabilities to have equal opportunities to participate in extracurricular programs, primarily sporting and athletic activities. I wrote my first law review article on the case of Casey Martin, a golfer with a disability who requested the use of a golf cart in PGA play as a reasonable accommodation under Title III of the Americans with Disabilities Act. Martin eventually won in the Supreme Court.

My first impression about the Education Department's guidance was (happy) surprise that it generated so much media attention (it was picked up in numerous national outlets, including here, here, and here). Sports are important in our society, and the benefits of youth participation in athletic activities are well documented. Too often, as the United States Government Accountability Office found in a recent report, students with disabilities have been excluded from these benefits. So I am gratified that the US Department of Education is using its platform to provide leadership in this area.

But I think it is too early to know exactly what this guidance will mean. Disability advocates are comparing it to an earlier Education Department guidance under Title IX instructing schools to treat female athletics on par with male teams. That effort transformed our society, and every time I coach my six-year old daughter's softball or soccer team I am grateful for it. I am hopeful, but not necessarily optimistic, that this will be the ADA equivalent. This guidance does not break any new ground: it merely clarifies existing legal obligations under Section 504 of the Rehabilitation Act of 1973, which is hardly a new law. The Individuals with Disabilities Education Act, which also requires schools to grapple with the integration of students with disabilities into school life, has absolutely been a transformative statute. But implementation has been slow, and the law is still underenforced.

Key Moment for U.S. and International Disability Rights

By Associate Dean Michael Waterstone

On Monday, the Senate will vote on the whether or not to move ahead with ratification of the United Nations Convention on the Rights of Persons with Disabilities. President Obama has already signed this treaty, and, as I have argued before, I believe the Senate should ratify it. I have published an op-ed with the Pacific Standard here on Republican opposition to ratification and why I believe it is flawed.

Disability and Voting

By Associate Dean Michael Waterstone

My primary research area, disability law, typically doesn't garner a lot of headlines or attention in presidential elections. There was a National Forum on Disability Issues in September of 2012 where both candidates were invited, but neither showed up (President Obama was represented by Ted Kennedy, Jr. and Governor Romney was represented by Rep. Cathy McMorris Rodgers (R-WA)). In a way this is understandable -- disability is a less contentious civil rights issue than some other areas. It may just be a perception that there is less to fight about (and a good fight is what really draws media attention).

But there are certainly many important issues relevant to people with disabilities that are at stake in this election. A major one is health care. The provision of the Affordable Care Act that stops insurance companies from denying coverage based on preexisting conditions can help people with disabilities move in and out of the labor force without losing their health insurance. This approach, I have argued elsewhere, is part of the explanation of the higher rate of veterans with disabilities, who have access to the VA for some healthcare services. Governor Romney seemed to suggest that his healthcare proposals would also cover people with preexisting conditions, but most analyses I have seen refute this, at least to the extent that it would help people with long term disabilities be more fluid in and out of jobs. Another issue of importance to the disability community is the ratification of the United Nations Convention on the Rights of Persons with Disabilities. President Obama signed the treaty and has urged ratification; as far as I could find, Governor Romney has taken no public position on the issue.

But in this blog post, I'd like to focus on an issue that comes before both of these -- voting for people with disabilities. Given the recent focus on the administration of elections (mostly, as my former colleague Rick Hasen has profiled, based on hazy and unsubstantiated claims of voter fraud), this is timely.

Expanding the Scope of American Disability Law

On August 27, 2012, Loyola was fortunate to host a delegation of 20 Japanese lawyers and academics. These lawyers, all of whom have an interest in disability law and policy, spent the day at Loyola learning about American and California disability law. After an overview of the area from Professor Michael Waterstone (pictured, right), they heard from Professor Sande Buhai, Professor Jan Costello, Professor Michael Smith, and Professor Julie Waterstone (Southwestern) about the ways disability law is taught in American Law Schools. After lunch, there was a distinguished panel of practitioners who discussed their practice experience in this area. Wilmer Harris, a partner at Schonbrun DeSimone Seplow Harris Hoffman & Harrison, LLP, Chris Knauf, the founder and sole proprietor of Knauf Associates, and Autumn Elliot, an Associate Managing Attorney at Disability Rights California, participated in this panel. The delegation then visited the Disability Rights Legal Center at Loyola's Downtown Public Interest Center to hear about their work.
This session was part of an ongoing collaboration between Michael Waterstone and Professor Jun Nakagawa of Professor at Hokusei Gaukuen University and Professor Yoshimi Kikuchi at Waseda University. We look forward to working together on similar events in the future.

Disability Treaty Makes Progress

By Associate Dean Michael Waterstone

Last week, the United States Senate held an important hearing on the UN Convention on the Rights of People with Disabilities (UNCRPD). The UNCRPD was adopted in December 2006, making it the fastest negotiated human rights treaty in UN history. There are currently 153 signatories to the Convention (with 117 countries having ratified) and 90 signatories to the Optional Protocol (with 66 countries having ratified). President Obama signed the treaty shortly after entering office, and this hearing is the first significant step toward ratification. An account of the hearing by Professor Gerard Quinn (one of the intellectual founders of international disability law) can be found here.

Loyola has been an important center of developing knowledge about the Convention. In March of 2010, we had the privilege of hosting a symposium entitled "The Significance of the United Nations Convention on the

Rights of Persons with Disabilities." We were able to bring together a unique collection of participants from all over the world. We were fortunate to have influential academics, key policymakers, individuals who were active in the negotiations and officials who will be responsible for implementing and monitoring the UNCRPD in countries throughout the world. Consistent with the mantra "Nothing about us without us," many of our participants were people with disabilities or individuals with family members who have disabilities. Our speakers performed the crucial function of telling and dissecting the story of the Convention's origins, navigating through the UN processes, eventual adoption and entry into force, and the beginning work of implementation and enforcement. They also offered candid assessments of the Convention's ability to create change, and its successes and shortcomings as an international human rights instrument. You can find the papers from this symposium, which have been widely cited and influential in policy development, here.

Precedents and Presidents: Broadening the Horizons of Disability Law

This is a blog post from one of our recent alumni, Andrew Haas, J.D., Class of 2010, who is doing international human rights work this summer with the Centre for Disability Law and Policy (CDLP) in Galway, Ireland.

This summer I had the honor of working with the Centre for Disability Law and Policy (CDLP) in Galway, Ireland. My assignment was to conduct research on people with intellectual disabilities in prison systems around the world as it relates to a new movement in international disability law after the drafting of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2006. This included a week long "Summer School" that provided an intensive training on the CRPD and its application. The 6-day program, hosted by CDLP and the Harvard Disability Law Project, brought in experts from every corner of the globe, all eager to discover new ways to implement this new legal instrument. Many of the attendees and speakers were part of the original drafters of the CRPD and offered invaluable insights into the treaty and its intended purpose. The President of Ireland, a human rights advocate of his own accord, even gave an inspiring inaugural address to kick-off the conference, and was particularly warm and engaging with the students (I've got pictures of us chatting it up). Interestingly, neither Ireland nor the United States[1] has ratified the treaty, though both nations have signed and positioned legal scholars and lawyers at the forefront of its implementation.

The CRPD proposes the large-scale notion of a "paradigm shift" in the legal perspective on disability law. Under the CRPD, disability law is a human rights issue. It is grounded in principles of upholding equality and human dignity. This new wave of legal theory, or paradigm shift, does not in itself create new rights to be specially applied only to this group. Rather, the CRPD contends to be an assertion of rights that are summarily denied to people with disabilities, but held by all. For example, Article 12 of the CRPD mandates that "persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life." This right to legal capacity, the lifeblood of the Convention, is routinely denied to people with disabilities for myriad reasons when coming into contact with the legal system. But without legal capacity, there is no hope for equality. This assertion discards even the progressive ideals that we hold in the U.S. of meeting the needs of people with disabilities. Rather, it aims to put all people on equal footing with proper support in determining each person's will and intent instead of merely being objects of social programming or paternalistic courts, so people can be the experts in their own lives.

It was inspiring to see so much optimism and passion in a room full of international lawyers and the CRPD offers a truly remarkable opportunity to create change. Broadening the horizons of disability law as a human rights issue can be used not only as a tool to further the rights for people with disabilities, but a powerful tool to further human rights for all. I really enjoyed spending the summer in Ireland and working with the CDLP, a major spearhead of the paradigm shift. It was a grand experience.

[1]The United States Senate Foreign Relations Committee held a hearing on July 12, 2012 at which Committee Chairman John Kerry, along with John McCain, Bob Dole, and disability rights advocacy groups urged ratification of the treaty.

Comments on EEOC Enforcement Priorities

By Associate Dean Michael Waterstone

The Equal Employment Opportunity Commission recently approved a Strategic Plan for Years 2012-2016. This is an important document. The EEOC is the primary federal enforcement agency for the nation's employment laws, with responsibility for the Americans with Disabilities Act, Title VII, the Age Discrimination in Employment Act, and the Genetic Information Nondisclosure Act, amongst others. The Strategic Plan sets enforcement priorities for the EEOC. The EEOC invited input on what the EEOC's national priorities should be for the next three years to have the greatest impact in combating discrimination in the workplace; and recommendations for improving enforcement, outreach and prevention, and customer service.

I submitted these comments, suggesting that the EEOC emphasize failure-to-hire claims in the disability discrimination context. This type of discrimination is the hardest to prove, and these are the hardest cases for the private bar to bring. Yet all evidence suggests this type of discrimination is still happening and limiting the employment opportunities of diverse categories of people with disabilities. Specifically, I advocate that the EEOC should identify cases where employers appear to have a pattern of not hiring employees with disabilities, and that the EEOC consider a testing strategy to ferret out this discrimination, a method which has proven effective in other civil rights contexts.

Coleman and the Perils of New Federalism

By Associate Dean Michael Waterstone

Waterstone is guest blogging this month at PrawfsBlawg, on which this piece first appeared.

The Supreme Court announced its decision today in Coleman v. Court of Appeals of Maryland. For reasons I will explain below, I disagree with the plurality decision and think it is one of a growing trend of harmful and indefensible "new federalism" decisions. Spoiler alert: I think Justice Scalia makes a fine point about this jurisprudence in his concurring opinion.

First, the facts: Plaintiff had sued his state employer for damages, alleging that it violated the "self-care" part of the Family Medical Leave Act (FMLA), which entitles an employee to take up to 12 weeks unpaid leave per year for the employee's own serious health condition. In Nevada v. Hibbs, the Court had upheld the constitutionality of suits for damages against states for FMLA's "family care" provisions, which guarantee unpaid leave for the care of a newborn child, adoption or foster care placement of a child, or care of a spouse, son, daughter, or parent with a serious medical condition. But in Coleman, the Court held that Congress had exceeded its constitutional authority with the "self-care" provision. Accordingly, the state is entitled to Eleventh Amendment immunity and the plaintiff's suit for damages is dismissed on sovereign immunity grounds.

In Coleman, the Court held that unlike the family care provision, the self-care provision failed the apparently now sacrosanct City of Boerne congruence and proportionality standard. Under this standard, the Court will assess the evil or wrong Congress attempted to remedy and the means Congress adopted to address that evil. Legislation enacted under Section 5 of the Fourteenth Amendment must be targeted at conduct transgressing the Fourteenth Amendment's substantive provisions and the Court must find that there is congruence and proportionality between the injury to be prevented or remedied and the means adopted to achieve that end.

Fast Track Litigation? Rebuttable Presumption in Your Favor? Not Interested...

By Associate Dean Michael Waterstone

Waterstone is guest blogging this month at PrawfsBlawg, on which this piece first appeared.

Here in California, for some time there has been a fairly fierce debate raging between one segment of the plaintiff's bar and the business community relating to disability access litigation. Title III of the Americans with Disabilities Act, a federal law, requires privately owned places of public accommodation (restaurants, movie theaters, bowling alleys, etc.) to be accessible to people with disabilities. The reach of the statute is broad, but the remedies are pretty weak - only injunctions are available. Given the Court's decision in Buckhannon combined with the lack of a damage remedy, often times these are not profitable cases for private attorneys to take, even if they are potentially meritorious.

But under California state law (which offers more protection for people with disabilities than federal law), plaintiffs can get damages for inaccessible privately owned places of public accommodation. Enter a segment of the plaintiff's bar, which brings large number of these cases, often times going after small businesses, and in some instances using questionable demand methods. The business community claims they are being extorted for small "ticky tack" violations which drive their cost of business through the roof (and point to unethical behavior by at least some attorneys/clients who have claimed multiple injuries in multiple places at the same time). Some segments of the disability rights community counter that a violation, no matter how small, can and does have exclusionary and harmful effects on people with disabilities; and that these laws are not new and are not optional. A balanced discussion of the issue can be found here.

In California, one legislative reaction to this situation was SB 1608, which, amongst other things, limited damages and created the California Commission on Disability Access to further study the situation. But I'd like to focus on one other aspect of the SB 1608: it created a program encouraging businesses to hire "certified access specialists" to inspect their businesses for compliance before any litigation. If a business is inspected, they receive an automatic 90-day stay of any lawsuit and may go directly to an early evaluation conference run by the court.

Making Things Right, Many Years Later

By Associate Dean Michael Waterstone

A state task force in North Carolina recently recommended that victims of forced sterilization receive compensation. Today, the idea of the state medically taking away someone's right to procreate against their will seems impossible, even barbaric. But from the 1930s to the late 1970s, North Carolina, like 32 other states, used the now-discredited science of eugenics to justify mandatory sterilization of people with mental disabilities, criminals and other undesirables. The idea was to prevent those who were "unfit" from continuing "their own kind." All in all, more than 60,000 people in the United States were sterilized without their consent.

Why does this matter today? Happily, states do not do this anymore (although North Carolina's forced-sterilization statute remained on the books until 2003). Nevertheless, North Carolina's proposed action here is important for three reasons. First, it sheds light on a practice that is too often neglected in the history books. Reparations of this sort are politically difficult - no doubt, some citizens of North Carolina are wondering why their tax money should go to righting some wrong they were not a part of, instead of toward schools, roads, prisons and other needed areas. But when a state actively participates in an atrocity toward it citizens, it has a moral obligation to make amends and to ensure it never happens again. An action like this - sure to be controversial - puts this issue back in the public eye, and increases the likelihood that it will be a part of how people think about abuses of state authority, even when it is uncomfortable to do so. North Carolina should be lauded for taking steps to do the right thing here.

Second, the issue of people being discriminated against on the basis of their genetic conditions has not gone away even though eugenics has been thoroughly discredited. More than 90 percent of Americans report being fearful of taking genetic tests out of concern that their employer or insurance company will discriminate against them if they show a genetic predisposition to develop certain diseases. In response to this, Congress passed the Genetic Information Non Discrimination Act, making it unlawful for employers or insurance companies to discriminate against individuals on the basis of their genetic information. Although it passed Congress with broad consensus, this law was criticized for not responding to any real need and being a "remedy in search of a problem." North Carolina's forthright attempts to deal with its history of this type of discrimination shows these worries are not merely hypothetical.

Finally, discrimination against people with disabilities - particularly individuals with mental disabilities - still happens. Yet courts have taken a limited view of this problem. In fact, the Supreme Court expressly sanctioned state mandatory sterilization laws like North Carolina's, noting that "three generations of imbeciles are enough." This case has never been explicitly overruled, and the Supreme Court has continued to maintain that there is no history of prejudice and laws intended to harm people with mental disabilities. Courts continue to review state actions drawing classifications on the basis of mental disability with their most lenient interpretative methods, employing rational basis review, whereby any state action that is rational will be upheld. Eugenics laws like those that existed in North Carolina remind us that the court has made a mistake here, and that it should more carefully scrutinize existing laws and policies - including laws relating to voting, capacity and institutionalization - that continue to operate against the rights of individuals with mental disabilities.

At this point, the North Carolina legislature still needs to approve the payment of compensation to victims of forced sterilization. But North Carolina deserves praise for taking the steps it has already taken, which should encourage the other 32 states to follow suit. And it should finish the job by approving payments to individuals who were harmed in this grievous manner by official and deliberate state actions.