Copyright (c) 2009 All rights reserved. http://works.bepress.com/samuel_bagenstos Recent documents in Samuel R Bagenstos en-us Sun, 28 Jun 2009 10:26:44 PDT 3600 http://works.bepress.com/samuel_bagenstos/29 http://works.bepress.com/samuel_bagenstos/29 Sat, 27 Jun 2009 09:03:00 PDT When President George Herbert Walker Bush signed the Americans with Disabilities Act (ADA) into law in 1990, disability rights advocates thought they had won a major victory. For the first time, American law firmly declared that people with disabilities are, and of right ought to be, equal citizens. Comprehensive in its sweep, the ADA broadly prohibits disability-based discrimination by employers, state and local governments, and private good and service providers. Importantly, the statute takes the concept of forbidden discrimination beyond intentional and overt exclusion; it also treats as discrimination the failure to provide "reasonable accommodations" to people with disabilities. In a single legislative act, Congress recognized that society's institutions and structures have been designed without people with disabilities in mind, and that justice requires society to make changes today to include them fully in the life of the community. Senator Tom Harkin's label for the statute - the Emancipation Proclamation for people with disabilities - seemed entirely apt. Almost twenty years later, matters have not worked out as disability rights advocates had hoped. In a series of decisions, the Supreme Court has read the statute's provisions very narrowly. In all federal courts, ADA plaintiffs lose their cases at astounding rates - the only litigants less successful than ADA employment plaintiffs are prisoner plaintiffs - who are rarely even represented by counsel. The statutory provisions that require businesses to be accessible are wildly underenforced. And the employment rate for people with disabilities has remained stagnant at best. As the bleak picture of the post-ADA world has become clearer, a conventional wisdom has emerged among many disability rights supporters. The ADA was a statute with great promise, they argue, but it has been betrayed - by judges who do not understand the principles of the disability rights movement, and by a society that has engaged in a backlash against that movement. In that conventional wisdom, there is nothing wrong with the ADA - or at least nothing wrong that a more enlightened judiciary and populace cannot cure. The conventional wisdom has led many disability rights advocates to focus their energies on lobbying for measures like the recent ADA Amendments Act, which explicitly urges the courts to return to the supposed original intent of the ADA. There is truth in the backlash story, but the argument is vastly overstated. Although measures like the ADA Amendments Act are worthy, they are no magic solution. The general public has been resistant to the ADA, and judges have read the statute more narrowly than they might have. But it is tendentious to call those results a betrayal of the principles of the disability rights movement. Rather, to a large extent they reflect contradictions and tensions within the ideas of the disability rights movement itself. In the years before the enactment of the ADA, many disability rights advocates articulated ideas that are consistent with many (though not all) of the restrictive readings the Supreme Court later put on the statute. Rather than betraying "the" principles of the disability rights movement in these cases, the Court has simply chosen one of a set of competing principles articulated by movement participants. One purpose of this book is to draw out the complexities and pluralism of the disability rights movement, and to show how a richer picture of the movement requires a modification of the standard backlash narrative. The backlash story is overstated in another respect as well. Although the ADA has had little if any positive effect on the employment rates of people with disabilities, that result simply cannot be attributed to the Court's decisions that have read the statute narrowly. As this book shows, the restrictive decisions have essentially confined the statute's coverage to those people with disabilities who need reasonable accommodations to enter or stay in the workforce - precisely the group one would want to target if one were seeking to use the ADA as a tool to improve employment rates for people with disabilities. The statute's failure to improve those employment rates, this book contends, stems from something more fundamental - the inherent limitations of antidiscrimination laws in eliminating deep-rooted structural barriers to work. Even the ADA's requirement of reasonable accommodation, which seems so revolutionary, is far more like traditional antidiscrimination requirements than is commonly recognized. This book aims to highlight the continuities between the ADA and earlier antidiscrimination statutes, and to show why the statute, even if broadly construed, cannot be expected to achieve integration and empowerment for people with disabilities on its own. The backlash narrative has also had a harmful effect on the focus of disability rights supporters, particularly those in the academy. Instead of grappling with the difficult questions of how best to achieve integration and empowerment for people with disabilities in a world where antidiscrimination statutes have only limited effect, too many academics have been satisfied simply to bemoan the limiting interpretations the Supreme Court has placed on the ADA. This book criticizes a number of the Court's key ADA decisions as well. But a too-ready assertion of backlash or betrayal distracts attention from the important work that the disability rights movement itself still needs to accomplish: the work of mediating, if not resolving, the tensions among the goals articulated within the movement's own ranks, and the work of coming up with policy proposals to go beyond the ADA in achieving those goals. This book seeks to contribute to that crucial discussion. Samuel R. Bagenstos Disability Rights Law Civil Rights Litigation Antidiscrimination Theory Social Welfare Law http://works.bepress.com/samuel_bagenstos/28 http://works.bepress.com/samuel_bagenstos/28 Wed, 01 Apr 2009 13:00:14 PDT Along with three lawyers from Arnold & Porter, I filed this brief on behalf of former Attorney General Nicholas Katzenbach, four former Assistant Attorneys General for Civil Rights (two from Democratic administrations, two from Republican administrations) and two former senior career officials in the Civil Rights Division of the United States Department of Justice. The brief defends the constitutionality of Congress's 2006 amendments to the Voting Rights Act. Samuel R. Bagenstos Nonacademic Legal Writing (Including Briefs) http://works.bepress.com/samuel_bagenstos/27 http://works.bepress.com/samuel_bagenstos/27 Sat, 15 Nov 2008 10:19:55 PST The Individuals with Disabilities Education Act (IDEA)--and its predecessor, the Education for All Handicapped Children Act (EAHCA), first enacted in 1975--ought to be an ideal context in which to study the courts' role in American education. When Congress enacted the EAHCA in 1975, it did so in response to constitutional litigation in twenty-eight states that challenged the exclusion of children with disabilities from public education. The statute incorporated into federal law significant provisions of consent decrees that resolved key cases in Pennsylvania and the District of Columbia: the "zero-reject" principle, under which the public schools may not turn away students with disabilities as "uneducable"; and the "least restrictive environment" principle, under which students with disabilities are to be taught alongside students without disabilities to the greatest extent appropriate. In implementing these principles, themselves born from litigation, the statute takes a proceduralist approach. The statute requires states to provide a "free appropriate public education" in the least restrictive environment to all children with disabilities, but it says very little about the content of that education. Instead, the statute simply requires the development of an Individualized Education Plan (IEP) for each student with a disability and then imposes a series of administrative and judicial devices for resolving disputes about the content and implementation of a student's IEP. The statute has been criticized from both the left and the right as overly legalistic. School superintendents report that that parents of children with disabilities "are too quick to threaten legal action to get their way." Shep Melnick has asserted that "litigation has increased dramatically" since the statute's passage. And in perhaps the most influential recent critique of court-led social reform, Ross Sandler and David Schoenbrod used a major IDEA class action, Jose P. v. Ambach, as their primary example of problematic "democracy by decree."In this chapter, I assess the role and effects of the courts in implementing the IDEA. Perhaps the most surprising empirical conclusion is that courts do not have much of a role in implementing the statute. As I will show, there is very little litigation under the IDEA. In some class action cases--such as the Jose P. case that Sandler and Schoenbrod highlight--the effects of judicial intervention have been significant (for both good and ill). But, by and large, the courts have made little direct difference in the treatment of students with disabilities. Courts have a somewhat greater indirect effect on the education of students with disabilities, as their (relatively rare) decisions cast a shadow over the (much more frequent) decisions of school administrators. Those decisions have, at the margins, exacerbated one of the problems commentators have attributed to the IDEA--an excessive focus on process over substance. And they have created and maintained a system of public reimbursement of private school tuition that may appear necessary in individual cases but raises substantial equity concerns nonetheless. Considered overall, however, both the strengths and the weaknesses of the IDEA have less to do with the actions of the courts than with those of Congress and the Executive Branch. Samuel R. Bagenstos Disability Rights Law Civil Rights Litigation http://works.bepress.com/samuel_bagenstos/26 http://works.bepress.com/samuel_bagenstos/26 Sat, 15 Nov 2008 09:23:50 PST Throughout the Rehnquist Court's so-called federalism revolution, as the Court cut back on federal power under Article I and the Civil War Amendments, many commentators asserted that the spending power was next to go on the chopping block. But in the last years of the Rehnquist Court, a majority of Justices seemed to abandon the federalism revolution, and in the end, the Rehnquist Court never got around to limiting Congress's power under the Spending Clause. This Article contends that it is wrong to expect the Roberts Court to be so charitable about Congress's spending power. But the Court is not likely to limit the spending power in the way some hoped and some feared the Rehnquist Court would--by imposing direct limitations on the kinds of legislation Congress has power to pass under the Spending Clause. Direct limitations such as those proposed by Professors John Eastman, Lynn Baker, and Mitchell Berman are unlikely to find favor in the Roberts Court's cases. Rather, the Court is likely to act indirectly--through doctrines that skew the interpretation and limit the enforceability of conditional spending statutes. Those doctrines are both more analytically tractable and less ideologically problematic for conservative Justices than are the direct limitations that might be imposed on the spending power. In other words, the paradigm case for the Roberts Court's restriction of the spending power is likely to be not United States v. Butler, but rather Arlington Central School District Board of Education v. Murphy. Samuel R. Bagenstos Civil Rights Litigation Constitutional Law http://works.bepress.com/samuel_bagenstos/25 http://works.bepress.com/samuel_bagenstos/25 Mon, 28 Jul 2008 11:04:02 PDT This is the reply brief in support of certiorari, which we filed in Ruiz-Rivera v. Pfizer Pharmaceuticals, a case in which we are asking the Supreme Court to decide two questions relating to the ADA's protection of individuals "regarded as having" disabilities. Samuel R. Bagenstos Nonacademic Legal Writing (Including Briefs) http://works.bepress.com/samuel_bagenstos/24 http://works.bepress.com/samuel_bagenstos/24 Fri, 25 Jul 2008 07:55:38 PDT I testified at a hearing before the Senate Committee on Health, Education, Labor, and Pensions in support of the ADA Amendments Act, which would overturn a series of Supreme Court decisions that have restrictively interpreted the ADA's definition of disability. This is my prepared testimony. Samuel R. Bagenstos Nonacademic Legal Writing (Including Briefs) http://works.bepress.com/samuel_bagenstos/23 http://works.bepress.com/samuel_bagenstos/23 Fri, 25 Jul 2008 07:49:26 PDT In this petition for certiorari, which I filed in June 2008 and is currently pending, we are asking the Court to grant review of two questions involving the application of the ADA's protection of individuals "regarded as" disabled. Each of these questions has created a conflict among the courts of appeals. Samuel R. Bagenstos Nonacademic Legal Writing (Including Briefs) http://works.bepress.com/samuel_bagenstos/22 http://works.bepress.com/samuel_bagenstos/22 Fri, 23 May 2008 11:21:21 PDT I represent the plaintiff class in the Sixth Circuit in this case where the State of Tennessee unsuccessfully moved to vacate a consent decree in litigation to enforce the Medicaid Act. The case is still pending. Samuel R. Bagenstos Nonacademic Legal Writing (Including Briefs) http://works.bepress.com/samuel_bagenstos/21 http://works.bepress.com/samuel_bagenstos/21 Fri, 23 May 2008 11:18:50 PDT I filed this petition for rehearing en banc on behalf of the complainant in Alaska v. EEOC, a case in which a divided panel of the Ninth Circuit held that the Government Employee Rights Act does not validly abrogate state sovereign immunity. The court granted rehearing en banc on July 3, 2008, and will schedule argument en banc for sometime in September 2008. Samuel R. Bagenstos Nonacademic Legal Writing (Including Briefs) http://works.bepress.com/samuel_bagenstos/20 http://works.bepress.com/samuel_bagenstos/20 Wed, 21 May 2008 08:39:30 PDT I testified at a hearing before the Senate Health, Education, Labor, and Pensions Committee in support of a bill that would overturn the Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162 (2007). Samuel R. Bagenstos Nonacademic Legal Writing (Including Briefs)