Supreme Court Nominee Judge Sonia Sotomayor and Disability Law


           The Bazelon Center for Mental Health Law has provided a valuable service by producing a Preliminary Review of Disability Cases of Judge Sonia Sotomayor. That review provides a fairly in depth analysis of Judge Sotomayor’s decisions in disability cases. The review identifies twenty eight cases involving disability law and, if you’re just keeping score, Judge Sotomayor decided in favor of the person with a disability in twenty of the twenty eight. The cases listed include cases involving the Americans with Disabilities Act (ADA), Section 504, the Individuals with Disabilities Education Act (IDEA), Social Security, Medicaid, and Protection and Advocacy System access to schools to monitor seclusion and restraint.

            A few cases are of particular note.

     Judge Sotomayor dissented from the other judges holding in EEOC v. J.B. Hunt Transportation, Inc., 321 F. 3d 69 (2d Cir. 2003) that the plaintiffs, applicants for truck driving jobs, did not have disabilities. The case was brought under the ADA by truck driving applicants who were denied jobs based on their use of certain disability related prescription medications. The majority of the court ruled that though the applicants were denied the jobs because they were perceived as unsuitable to be over-the-road truck drivers, they were not perceived as having disabilities. The majority judges did not connect the link between being denied a job due to the use of disability related prescription medication and being denied the job due to having a disability. Judge Sotomayor disagreed: “Thus, the EEOC has provided sufficient evidence that a fact finder could reasonably conclude that Hunt regarded the rejected applicants as substantially limited in the major life activity of working, because Hunt regarded them as unfit to be truck drivers.”

      In Bartlett v New York State Bd. of Law Examiners, 970 F. Supp. 1094 (S.D.N.Y. 1997), while in federal district court Judge Sotomayor ruled in favor of a law license applicant with a learning disability. Due to having a learning disability, the applicant had difficulty reading and requested accommodations such as extra time on the bar exam. The accommodations were denied because the examiners did not believe she was limited in the major life activities of reading or working.  Judge Sotomayor determined Ms. Bartlett was limited in the major life activity of working eloquently stating:

 “For those of us for whom words sing, sentences paint pictures, and paragraphs create panoramic views of the world, the inability to identify and process words with ease would be crippling. Plaintiff, an obviously intelligent, highly articulate individual reads slowly, haltingly, and laboriously. She simply does not read in the manner of an average person. I reject the basic premise of defendants’ experts that a learning disability in reading can be identified solely by a person’s inability to decode, i.e., identify words, as measured by standardized tests, and I accept instead the basic premise of plaintiff’s experts that a learning disability in reading has to be identified in the context of an individual’s total processing difficulties.”

      Judge Sotomayor ruled Ms. Bartlett was entitled, under the ADA, to the accommodations on the bar examination.

      In, Frank G. v. Board of Education of Hyde Park, 459 F.3d 356 (2d Cir. 2006), an IDEA case I discussed in a previous posting, Judge Sotomayor agreed with the Second Circuit panel that the parents’ unilateral placement of their child in a private school was appropriate. The parents were entitled to tuition reimbursement and they were not required to keep their child in a public school placement until it was clear that the child had actually failed and a year wasted. This is similar to the issue in the Forest Grove case recently heard by the Supreme Court but, as yet, undecided.

      Finally, in Connecticut Office of Protection & Advocacy v. Hartford Bd. of Education, 464 F.3d 229 (2d Cir.2006), Judge Sotomayor wrote an opinion granting Protection and Advocacy (P&A) Systems for Persons with Mental Illness, like my agency, access to school programs to monitor abuse and neglect of students. The Connecticut P&A System had received complaints that students at a public school had been subjected to the inappropriate use of physical restraint and seclusion at school. Federal law authorizes P&A Systems to have access to programs providing disability services to investigate complaints of abuse and neglect of persons with mental illness and other disabilities. Judge Sotomayor’s decision clarified that since the schools provide a therapeutic educational program to students with emotional disabilities; the P&A has access to that program and has access to the contact information of parents or guardians of the students in the program. The benefits of granting P&A access to schools can be seen in the recent NDRN report regarding the inappropriate use of seclusion and restraint in schools. This report was based on the investigative work in public schools of P&As throughout the country.

     To be sure, Judge Sonia Sotomayor has not always ruled in favor of the person with a disability in the case before her. Cases should not be decided based on the disability or other status of the litigants. Cases are decided by determining the facts and applying and interpreting the law to the facts. Frankly, I was very moved by her eloquence in the Bartlett decision determining that reading as a life skill:

     “For those of us for whom words sing, sentences paint pictures, and paragraphs create panoramic views of the world, the inability to identify and process words with ease would be crippling. Plaintiff, an obviously intelligent, highly articulate individual reads slowly, haltingly, and laboriously.”

     Based on these words and the analysis provided by the Bazelon Center, I believe Judge Sotomayor will be a fine Supreme Court Justice.



Toileting Assistance in Child Care and the ADA

     After my  post yesterday on Child Care and the ADA I received a very good question regarding child care programs providing assistance with toileting for children with disabilities who use “pull ups”. The question also raised issues regarding serving older children with disabilities who needed toileting assistance or diapering with much younger children. I thought the issue merited an additional post.

     The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination against persons with disabilities. Title III of the ADA prohibits discrimination by privately operated public accommodations. Private child care providers are covered by Title III. 

     Whether the ADA requires a child care program to provide toileting assistance to a child with a disability generally depends on whether the program provides diapering or toileting assistance to children without disabilities. Many programs provide toileting assistance to younger children. If the program provides toileting or diapering assistance to younger children, it must also provide that assistance to older children with disabilities, when the staff do not have to leave other children unattended to provide that assistance. If an older child needed toileting assistance because of having a disability, it would NOT be appropriate for the child care provider to generally serve the older child along side younger children. The older child with a disability should be included in an age appropriate program with peers close to the child’s own age. 

     Moreover, the child care provider must also provide toileting assistance or diapering to young children with disabilities who may need it more often than other children their age. Generally, toileting assistance is considered a “personal service” under the ADA and usually not a required service. But, as noted in the examples above, child care providers must consider modifying their policies if a child needs toileting assistance due to a disability. Some children with disabilities need assistance transferring to and from the toilet. Helping children with disabilities transfer from the toilet is not a “personal service” and is required. If a child care provider is required to provide toileting assistance or diapering to a child, it cannot charge an additional fee for that service. 

     Child care programs that do not diaper or provide toileting assistance to any children must still consider modifying that policy to assist children with disabilities. The Department of Justice in its publication Commonly Asked Questions About Child Care and the ADA says: 

     “To determine when it is a reasonable modification to provide diapering for an older child who needs diapering because of a disability and a center does not normally provide diapering, the center should consider factors including, but not limited to, (1) whether other non-disabled children are young enough to need intermittent toileting assistance, when for instance, they have accidents; (2) whether providing toileting assistance or diapering on a regular basis would require a child care provider to leave other children unattended; and (3) whether the center would have to purchase diapering tables or other equipment. If the program never provides toileting assistance to any child, however, then such a personal service would not be required for a child with a disability.” (emphasis supplied) 

     The Department of Justice, however, goes on to say that even if toileting assistance is not required, the program cannot exclude a child from the program if other arrangements could be made such as a parent or personal assistant coming in and providing the assistance. 

     In summary, if the program provides toileting assistance or diapering to younger children, it will likely be required to provide that assistance to older children with disabilities.


The ADA and Child Care

           In my last post I discussed Title III of the Americans with Disabilities Act in the context of Justice Department Sues Private School Chain for Discriminating Against Children with Disabilities. This provides additional information regarding the ADA and child care.

          Title III of the ADA covers privately-run child care centers, just as it covers other privately-run public accommodations such as private schools, recreation centers, restaurants, hotels, movie theaters, banks, etc. (see the definition of place of public accommodations at 28 CFR 36.104). Moreover, child care services provided by government agencies (including school districts) such as summer programs and before and after school programs must also comply with Title II of the ADA and Section 504. I will discuss Title II and 504 extended day services in a later post.

          Under Title III child care providers must provide children and parents with disabilities with an equal opportunity to participate in the child care center’s programs and services. To that end, centers must make reasonable modifications to their policies and practices to integrate children and parents with disabilities into their programs. Modifications must be made unless the modification would cause a fundamental alteration in the program.

          Additionally, child care providers must provide auxiliary aids and services that are needed for effective communication with children or adults with disabilities unless providing the aid or service is an undue burden on the program. Examples of auxiliary aids and services include:

Qualified interpreters, notetakers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed captioned decoders, open and closed captioning, TDDs, videotext displays, qualified readers, taped texts, audio recordings, Brailled materials, and large print materials.

          Finally, child care providers must make their facilities accessible to persons with disabilities. That means (1) existing barriers must be removed if it can be done without significant difficulty or expense and (2) newly constructed facilities and altered portions of existing facilities must be fully accessible.

          This is a basic overview of Title III’s application to child care centers. For more information the Department of Justice has an excellent document that discusses Commonly Asked Questions About Child Care and the ADA. Among other things that document addresses:

1.     Not excluding children with HIV or AIDS;

2.     Serving children with severe allergies (also see the Department of Justice (DOJ) Settlement Agreement with La Petite Academy);

3.     Serving children diabetes and the obligation of the provider monitor blood glucose (also see the DOJ Settlement Agreement with Kindercare);

4.     Providing assistance to children with mobility impairments in putting on and off leg or foot braces;

5.     Serving children who need diapering (also see the DOJ Agreement with Sunshine Child Center).


Justice Department Sues Private School Chain for Discriminating Against Children with Disabilities

     Last Wednesday April 29th the U.S. Justice Department announced that it had filed suit in U.S. District Court in Philadelphia against Noble Learning Communities Inc. (Nobel). The Justice Department alleges that Nobel violated title III of the Americans with Disabilities Act (ADA) by excluding children with autism spectrum disorder and other disabilities from its schools and programs. 

     The Justice Department complaint identifies children with disabilities who were denied admission to or removed from Nobel schools in several states. Nobel is a network of more than 180 private preschools, elementary and secondary schools in fifteen states. The schools operate under various names including Chesterbrook Academies, Bethesda Country Day School and Merryhill Schools. The Nobel chain also provides summer programs and child care services. 

     “All parents want their child to have the opportunity to reach his or her full potential,” said Loretta King, Acting Assistant Attorney General for the Civil rights Division. “The Justice department will vigorously enforce Title III of the ADA to ensure that children with disabilities have full and equal opportunity to participate in academic and non-academic activities.” 

     Title III of the ADA prohibits public accommodations, including private schools, from excluding individuals with disabilities from programs or services offered by the public accommodation. Under Title III private schools must make reasonable modifications to allow an individual with a disability a full and equal opportunity to participate in or benefit from the programs and services offered by the school. The Department of Justice advises that parents or guardians who believe their child may have been discriminated against on the basis of disability should contact the Justice Department’s Civil Rights Division.


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