Disability Law

Sixth Circuit Rejects Sole Cause Test for ADA Claims

2012-05-26T00:21:00.001-04:00

See this article: 6th Circuit shifts test for disability discrimination. Analysis will follow after the long weekend.

Salon on Seclusion, Restraint, and Arrests of Students with Disabilities

2012-05-24T09:23:00.003-04:00

See this article.

Washington Post on Institutional Parents' Opposition to DOJ-Virginia Olmstead Settlement

2012-05-24T09:20:00.001-04:00

See this article.

Mitt Romney Wants to Voucherize IDEA

2012-05-23T17:19:00.004-04:00

IDEA as camel's nose for school vouchers goes national. See this position paper released today by the Romney campaign.

Might Virginia Be Risking Another Olmstead Suit?

2012-05-23T08:54:00.002-04:00

This time on mental health? The state's inspector general suggests so:

Virginia, already mired in a $2 billion settlement agreement with the U.S. Department of Justice, is again at risk of violating the Americans with Disabilities Act — this time for failing to release discharge-ready patients from state-run behavioral-health hospitals.

During a six-month period of review by the state’s inspector general for behavioral health, an average of 165 people per month were clinically ready to be released from Virginia’s eight adult mental-health hospitals, but could not be discharged — most often because of a lack of community-based housing.

During the review, about 13 percent of the system’s beds were occupied for more than 30 days by patients who had been cleared to leave. The operating capacity of the state’s eight facilities was 1,514 as of July 1.

NY AG Announces Big Public Accommodations Access Settlements

2012-05-22T21:39:00.001-04:00

See this article, which begins:

New York Attorney General Eric Schneiderman says three retail chains have agreed to ensure that people with disabilities have equal access to the merchandise, services, and amenities in all their stores statewide.

The chains are JC Penney, Century 21, and Petland, with over 100 locations total covered by the settlement.

New NDRN Report on Medical Procedures That Violate the Rights of People with Disabilities

2012-05-22T12:45:00.004-04:00

Just out from the National Disability Rights Network: a very important report entitled Devaluing People with Disabilities: Medical Procedures that Violate Civil Rights. From the Executive Summary:

Five years ago, news broke worldwide that a six-year-old child with developmental and physical disabilities, Ashley, was given growth attenuation treatment via estrogen and had her uterus and breast buds removed. The intent of the treatment was to keep her permanently small. The child’s parents and doctors claimed that this set of procedures was in her best interest for numerous reasons, including that it would make it easier to care for her at home. Supporters of the treatment claim that this is the most personal of family decisions and there is no need for external judicial review of the decisions made by the family.

People with disabilities and advocates in the disability rights movement, however, assert that all individuals, regardless of their disability status, have individual rights that cannot be ignored. Decisions like those made in this case are the most personal of “personal rights,” not “family rights.” Every individual person has the right to bodily integrity, clearly recognized in our legal tradition, through the constitutional rights of liberty and privacy and the common law right to be left alone unless the individual chooses to have their body disturbed in some way. Individuals with disabilities, no matter the nature or severity of their disability, are no different. The Constitution and antidiscrimination laws make it clear, all people, including people with disabilities, are entitled to equal treatment under the law.

* * *

Devaluing People with Disabilities: Medical Procedures that Violate Civil Rights provides a crucial, but missing, link in the discussion about how society can and should make medical decisions that uphold the rights and inherent dignity of people with disabilities.

The report puts individuals with disabilities at the center of this discourse. It reviews the facts of Ashley X, as a case study for a larger discussion and presents a continuum of common experiences and treatment of individuals with disabilities within a context of medical decision making. The report explores the potential and actual conflict of interest that medical decision making may present between a parent and his or her child. It describes the vital role that the legal system has in ensuring that the civil and human rights of individuals with disabilities are protected. The report discusses how the deprivation of these rights is harm within and of itself and that all individuals have substantive rights regardless of the severity of their disability. It goes on to outline how discrimination inherently causes harm to both the person who experiences the discriminatory conduct and society as a whole. Finally, the report presents a series of recommendations for how the legal and medical systems at the local, state, and national level, including protection and advocacy agencies, ethics committees, institutional review boards, and the courts can perform critical “watchdog” functions to ensure that the human and civil rights of individuals with disabilities are protected.

Atlanta Journal-Constitution on Deficiencies in Georgia Personal Care Homes

2012-05-22T10:43:00.002-04:00

See this article, which begins:

Deficiencies in care, living conditions and record-keeping have piled up in scores of Georgia personal care homes, with the state rarely shutting down violators or levying heavy fines, The Atlanta Journal-Constitution has found.

An analysis of five years worth of inspections, violations and enforcement actions revealed that many frequent violators have faced nothing more than a fine of a few hundred dollars.

The Atlanta Journal-Constitution’s investigation found numerous troubling instances — from live cockroaches in the kitchen of one home to another in which eight residents were out of medication.

Ninth Circuit Holds ADA Does Not Bar California Cities from Shutting Down Medical Marijuana Dispensaries

2012-05-22T09:50:00.000-04:00

Yesterday, the United States Court of Appeals for the Ninth Circuit issued an opinion in James v. City of Costa Mesa. The case, brought by individuals who lawfully use medical marijuana under California law, sought to challenge efforts by two California cities to shut down medical marijuana dispensaries. The district court denied the plaintiffs' request for a preliminary injunction, and the Ninth Circuit affirmed. Judge Fisher, writing for himself and Judge Pregerson, explained the court's ruling:

Concerned about the possible shutdown of the collectives they rely on to obtain medical marijuana, the plaintiffs brought this action in federal district court, alleging that the cities’ actions violate Title II of the Americans with Disabilities Act (ADA), which prohibits discrimination in the provi- sion of public services. District Judge Guilford sympathized with the plaintiffs, but denied their application for preliminary injunctive relief on the ground that the ADA does not protect against discrimination on the basis of marijuana use, even medical marijuana use supervised by a doctor in accordance with state law, unless that use is authorized by federal law.

We affirm. We recognize that the plaintiffs are gravely ill, and that their request for ADA relief implicates not only their right to live comfortably, but also their basic human dignity. We also acknowledge that California has embraced marijuana as an effective treatment for individuals like the plaintiffs who face debilitating pain. Congress has made clear, however, that the ADA defines “illegal drug use” by reference to federal, rather than state, law, and federal law does not authorize the plaintiffs’ medical marijuana use. We therefore necessarily conclude that the plaintiffs’ medical marijuana use is not protected by the ADA.

Judge Berzon dissented in part.

The LA Times's coverage of the decision appears here.

Popeyes Apologizes to Man with Service Dog

2012-05-22T09:37:00.005-04:00

See this article by that title from the Atlanta Journal-Constitution. It begins:

The Popeyes restaurant chain said Monday it has apologized to the college student asked to leave a Cobb County location because he had his service dog with him.

Taylor Gipson, 20, has Type 1 diabetes and relies on a British Lab named Bear to alert him to rises or drops in his blood sugar levels, he told the AJC. But during a recent visit to the Popeyes on Windy Hill Road near Marietta, Gipson was asked to leave by the store manager, who then called police.

"After reviewing all of the facts, I think we could have handled the situation better," Wendy Harkness, chief legal officer for Popeyes' parent company, told the AJC in a statement Monday.

SLU is Sued by Ex-Med Student with Learning Disability

2012-05-22T09:34:00.001-04:00

See this article by that title in the St. Louis Post-Dispatch. It begins:

St. Louis University's medical school is being sued by a former student with a learning disability who says he wasn't given enough time to complete tests.

The lawsuit, claiming violations of the Americans with Disabilities Act, was filed last week in federal court in St. Louis on behalf of the student, who was identified as John Doe. The lawsuit says the student was kicked out of the SLU medical school after failing multiple timed tests required to progress through school.

Flint Agrees to Increase Accessibility at Polling Sites

2012-05-22T09:30:00.003-04:00

See this article by that title in the Detroit Free Press. It begins:

The City of Flint has agreed to make polling places more accessible for the mobility impaired in time for the November presidential election, the U.S. Attorney’s Office in Detroit announced today.

Acting on a complaint, the Justice Department’s Civil Rights Division conducted a study which showed a substantial number of Flint polling places were not accessible to people in wheelchairs.

The city recently signed a legal document pledging to make all of its polling places accessible to the mobility impaired head off a federal lawsuit. The agreement is designed to bring Flint into compliance with the Americans with Disabilities Act.

Nations Must Protect Their Children, Not Their Reputations

2012-05-21T10:55:00.003-04:00

See this op-ed by that title by Laurie Ahearn in the Washington Post. It begins:

The Duchess of York, Sarah Ferguson, seems to be in hot water again. A Turkish court has accused her of “acquiring footage and violating the privacy” of children in a Turkish state-run orphanage. Her trial began two weeks ago in Ankara in absentia, following Britain’s refusal to extradite the former royal. The charges, which carry a maximum sentence of up to 22 1 / 2 years in prison , are a result of her participation in an undercover documentary that aired on Britain’s ITV in 2008 , exposing abuses in the facility.

The hypocrisy of the Turkish government in prosecuting the duchess, who courageously exposed torture and neglect of Turkish children, is appalling. Turkish officials seem concerned with the privacy of children, most of whom have intellectual and physical disabilities, even as they violate those children’s most basic human rights.

D. Or. Holds That Olmstead Applies to Integrated-Employment Claims

2012-05-21T00:05:00.001-04:00

On Thursday, United States Magistrate Judge Janice M. Stewart of the United States District Court for the District of Oregon issued an opinion addressing the state's motion to dismiss in Lane v. Kitzhaber, a case about which I've blogged before. Lane challenges the state's provision of employment services to people with disabilities in segregated sheltered workshops as a violation of the ADA's integration mandate. Magistrate Judge Stewart rejected the state's arguments that the Olmstead integration mandate does not apply to employment services and held that the case could proceed. She interpreted certain allegations in the plaintiffs' complaint as seeking impermissibly to impose a standard of care, which Olmstead held was not required by the ADA, so she ordered the plaintiffs to submit a new complaint omitting those allegations.

All told, this is a very significant decision. It's the first case to hold that individuals with disabilities can bring an Olmstead claim to challenge their unnecessary placement in segregated employment programs, though I'm sure it won't be the last.

President Obama Sends Ratification Package for Disabilities Convention to the Senate

2012-05-20T23:44:00.000-04:00

See this story from Disability Scoop, which begins:

Nearly three years after signing the United Nations Convention on the Rights of Persons with Disabilities, the Obama administration is asking the U.S. Senate to grant final approval of the treaty.

The United States signed the convention in 2009, but Senate approval is required in order to make participation official.

The convention is designed to expand community access and improve the standard of living for the estimated 650 million people around the world with disabilities. It is the first new human rights convention this century.

DOJ Extends Deadline for Pool-Access Compliance Until January 31, 2013

2012-05-20T23:39:00.001-04:00

Tomorrow's Federal Register will contain a final rule delaying the date by which existing swimming pools must comply with the new accessibility requirements until January 31, 2013. The final rule is a curious document, to be sure. It actually does a quite effective job of explaining why the hotel industry's arguments for an extension make no sense. See, for example, the following excerpts:

First, some commenters suggested that the requirement that the pool lift be fixed was not part of the title III regulation published by the Department in September 2010, but was, instead, an interpretation the Department later developed outside of the rulemaking process. However, the Department has had a longstanding position that the ADA Standards apply to fixed and built-in elements. See, e.g., Department of Justice, Americans with Disabilities Act, ADA Title III Technical Assistance Manual Covering Public Accommodations and Commercial Facilities (Supp. 1994), III-5.3000, available at http://www.ada.gov/taman3up.html, (providing that “[o]nly equipment that is fixed or built in to the facility, is covered by the accessibility standards”). The Department codified that position in both the revised title II and title III regulations, see 28 CFR 35.151(d) and 36.406(b). Throughout the six-year process of revising the ADA regulations, the Department stated that the ADA Standards did not apply to freestanding (e.g., non-fixed, moveable, or portable) equipment.

* * *

A second group of commenters who owned or operated public accommodations and who supported the extension mistakenly believed that if they could not comply with the pool access requirements of the 2010 Standards (because compliant pool lifts were unavailable or they could not afford to provide a lift, for example), they would be forced to close their pools. This is also a misunderstanding of the ADA regulations. Compliance with the 2010 Standards is only required to the extent that it is “readily achievable”—a term that means “easily accomplishable and able to be carried out without much difficulty or expense.” See 28 CFR 36.104. Thus, title III of the ADA does not require that a public accommodation close its pool facility if, for example, compliant pool lifts are not available or if the facility cannot afford such a lift.

* * *

Several commenters, including a pool lift manufacturer, supported an extension on the basis that there is currently a significant backlog in availability of compliant lifts. They were concerned that if the pool access requirements took effect, pool owners and operators who could not acquire a lift because of a manufacturing backlog would be in violation of the ADA. However, the lack of availability of a compliant lift because of limitations in manufacturing capacity would demonstrate that it is not readily achievable to comply with the requirements, until such time as a lift becomes available.

Nonetheless, the rule states that DOJ has decided to grant an extension largely because the hotel industry was mistaken in those very respects:

On the other hand, as stated above and in the Department’s NPRM, it is clear to the Department that a significant number of pool owners and operators may continue to have misunderstandings and concerns about their obligations with regard to providing access to existing pools. These misunderstandings have affected pool operators and owners in at least three ways that are relevant to the Department’s proposal. First, it appears that some places of public accommodation initially proceeded on the misunderstanding that a portable pool lift would in all circumstances satisfy the pool accessibility requirements of the 2010 Standards. Those pool operators and owners will need time to undertake a fact-specific analysis about whether the installation of a fully compliant pool lift is “readily achievable,” and to implement their compliance plan. Second, the comments suggested that at least some pool owners and operators who generally speaking would find installation of a compliant pool lift to be “readily achievable” currently are having difficulty locating compliant pool lifts that are available for purchase. The Department believes that this circumstance provides an additional reason to postpone the compliance date, thereby allowing a greater number of covered entities to purchase and install compliant pool lifts. Third, comments received by the Department also raise concerns that, absent an extension, some covered entities might respond to the compliance date by taking steps that the law does not require and that would actually undermine the goal of ensuring that individuals with disabilities obtain the benefits that the regulations sought to ensure—safe and compliant pool access to existing pools when it is readily achievable to provide it. For example, if pool owners and operators close pools because they incorrectly believe that the 2010 Standards require that a fully compliant pool lift must be installed in all cases, those closures will reduce access to pools for everyone, including individuals with disabilities. Similarly, if pool owners and operators are unable to obtain compliant lifts because of the lack of availability, they may unwittingly purchase non-compliant lifts that will not provide safe and independent pool access to persons with disabilities.

Hmm.

Watch This Space

2012-05-18T14:00:00.000-04:00

I've been caught up with some pressing matters today, but watch this space over the weekend for analysis of the latest decision on the Oregon Olmstead sheltered workshop case; the DOJ swimming pool rule; the latest on the Disabilities Convention; and perhaps other updates.

I Love Seeing Disability Rights on Perez Hilton

2012-05-18T10:23:00.003-04:00

Even if it's because of what seems like a clear case of prosecutorial pettiness in refusing to waive appearance. Thanks, Noah Wyle, for bringing attention to this issue!

Cuomo Abuse-and-Neglect Bill Passes NY State Senate

2012-05-17T11:25:00.005-04:00

See this article from the New York Times, which begins:

The State Senate unanimously passed Gov. Andrew M. Cuomo’s legislation to protect developmentally disabled and mentally ill New Yorkers on Wednesday, but some high-profile advocates have been unnerved by what they perceive as flaws in the bill. Assembly Democrats have said that they intend to pass the bill, but will negotiate some changes before the legislative session ends on June 21.

Myths About Miniature Horses

2012-05-17T09:14:00.001-04:00

Rep. Jason Chaffetz has this op-ed in the (Provo, UT) Daily Herald. It begins:

Should a restaurant be required to allow horses in the dining room? Incredulously, a recent Justice Department ruling now says yes. In response, last week I proposed an amendment to the Commerce, Science, and Justice appropriations bill that would repeal this ridiculous mandate. Having passed the House, the proposal now awaits the Senate's unlikely approval.

Despite the difficulty (some would say impossibility) of housebreaking a horse, the Obama Justice Department ruled that "service" horses -- miniature horses used to accompany people with disabilities -- are no different than guide dogs under the Americans with Disabilities Act (ADA). As a result, shops, restaurants, hotels and even airlines could be sued if they did not accommodate horses.

With all respect, this reflects a fundamental misunderstanding of what the ADA regulations require. Those regulations specifically define "service animals" to include dogs only. As the regulations specifically say, "[o]ther species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition." 28 C.F.R. 36.104. A business is required to accommodate service animals -- dogs -- except where "[t]he animal is out of control and the animal's handler does not take effective action to control it" or "[t]he animal is not housebroken." 28 C.F.R. 36.302(c). So, even if we're dealing with a service dog, if it's not housebroken, a business does not have to let it in.

Because some people with disabilities are allergic to dogs or have religious objections to using dogs as service animals, the ADA regulations provide that in certain circumstances businesses must allow people with disabilities to use miniature horses to serve them. But, far from treating them as "no different than guide dogs," the regulations place service horses in a distinctly disfavored position. Unlike service dogs, which must be admitted unless they are out of control or not housebroken, miniature horses must be admitted only where doing so is reasonable. The regulations specifically allow businesses to exclude miniature horses not only where they are out of control or not housebroken, but also where the facility can't accommodate "the type, size, or weight of the miniature horse," where the miniature horse's presence "compromises legitimate safety requirements," or in any other circumstance where it would not be reasonable to admit the miniature horse. 28 C.F.R. 36.302(c)(9). What is so unreasonable about that?

Illinois AG to Sue High School Athletic Association Over Lack of Competition Standards for Athletes with Disabilities

2012-05-16T08:04:00.001-04:00

See this story from the Chicago Tribune. It begins:

Paralyzed from the waist down, 16-year-old Mary Kate Callahan relies solely on upper-body strength to power through the water in the 200-meter freestyle, her favorite race.

Accustomed to overcoming obstacles, Callahan is now fighting for the chance to swim in the state championship during the next school year.

The Fenwick High School student has been denied the opportunity to compete with her team because the Illinois High School Association lacks athletic competition standards for students with disabilities, according to a complaint drafted by the Illinois attorney general's office.

Human Rights Watch on Disability Voting Rights in Peru

2012-05-16T07:27:00.002-04:00

See this press release, with linked report. The release begins:

Peru should remove significant barriers preventing people with disabilities from exercising their right to vote and other civil rights, Human Rights Watch said in a report released today. The failure to dismantle the obstacles is undermining Peru’s leadership as one of the first countries to ratify, in 2008, the Convention on the Rights of Persons with Disabilities.

The 89-page report, “‘I Want to be a Citizen Just Like Any Other’: Barriers to Political Participation for People with Disabilities in Peru,” documents the legacy of a policy, changed only in October 2011, that arbitrarily denied people with sensory, intellectual, and psychosocial disabilities their right to vote, considering them legally incompetent to exercise such a decision. Human Rights Watch also examined the barriers that people with these and other disabilities face when exercising their political rights, including the difficulty of getting identity documents essential for voting, and the absence of support mechanisms to help people with disabilities make voting decisions.

“Peruvians with disabilities are no-less citizens than anyone else,” said Shantha Rau Barriga, disability rights researcher and advocate at Human Rights Watch. “Everyone is equally entitled to vote and participate in society – and the law and government policy should see to it that they have the support they need and that no one is arbitrarily and unjustifiably excluded.”

The report is based on interviews with more than 100 people with disabilities and their families, as well as with Peruvian government officials and disability advocates.

News on North Carolina-DOJ Olmstead Settlement Negotiations

2012-05-15T18:53:00.005-04:00

See this story from WRAL, which begins:

The North Carolina Department of Health and Human Services could end up paying millions of dollars to avoid a lawsuit over alleged violations of the Americans With Disabilities Act, state lawmakers learned Tuesday.

State health officials briefed the Joint Legislative Oversight Committee for Health and Human Services on Tuesday about the progress of the months of negotiations with the U.S. Department of Justice.

The issue stems from a justice department report last summer that found that the state's mental health system needlessly institutionalized thousands of mental health patients, segregating them from the community and impeding their interaction with people who do not have disabilities.

Just to be clear, the money this story is talking about is not money to be paid out as damages but instead the money that will be necessary in the short term to restructure the state's mental health system. Over the long run, the state is likely to save a substantial amount of money by moving to a more community-based system.

Department of Education Issues "Resource Document" on Restraint and Seclusion

2012-05-15T13:44:00.002-04:00

Read it here.

Ninth Circuit Decides Important IDEA/ADA/504 Issues in Pro Se Case

2012-05-15T09:50:00.000-04:00

Yesterday, the United States Court of Appeals for the Ninth Circuit issued an opinion in Oman v. Portland Public Schools. The case, brought pro se by the parent of a child with a disability, raised two basic questions by the time it got to the Ninth Circuit: (1) whether a court can award nominal damages for a violation of the IDEA; and (2) whether a school district violates Title II of the ADA or Section 504 of the Rehabilitation Act by refusing to modify its admissions policy for a magnet high school for an individual whose failure to satisfy the policy resulted from his disability and the school district's prior failure to provide a free appropriate public education.

The court answered both of these questions in the negative. As to the first question, it held that the IDEA's grant of authority to district courts to award "appropriate" relief for violations of the statute did not extend to the award of money damages. And it held (without much analysis) that the remedies set forth in the IDEA itself are the exclusive remedies for the violation of the statute, so that there can be no Section 1983 claim for a violation of the statute. The court was right, I think, that this holding was consistent with precedent from the Ninth Circuit, but all of the precedent on which the court relied preceded the Supreme Court's decision in Forest Grove School District v. T.A., which emphasized the broad discretion that the IDEA's appropriate-relief language grants to district courts to determine proper remedies. Although I think there are arguments the Ninth Circuit could have made here, the court did not even attempt to engage Forest Grove's interpretation of the appropriate-relief language. Indeed, the Ninth Circuit did not even cite Forest Grove.

The Ninth Circuit resolved the second question in language that, while potentially confinable to the case's facts, rather broadly suggests that the admissions policies of charter and magnet schools can only rarely if ever be challenged under the ADA and Section 504:

Whether a party may bring a damages action based upon the admissions policies of a magnet school is a question of first impression in this circuit, if not in this country, and thus we turn to the requirements of the Rehabilitation Act. “Section 504 by its terms does not compel educational institutions to disregard the disabilities of handicapped individuals or to make substantial modifications in their programs to allow disabled persons to participate,” but merely requires them not to exclude a person who is “otherwise qualified” based upon his or her disability. Se. Cmty. Coll. v. Davis, 442 U.S. 397, 405 (1979). To be “otherwise qualified,” an individual must be “able to meet all of a program’s requirements in spite of his handicap.” Id. at 406; see also St. Johnsbury Acad. v. D.H., 240 F.3d 163, 173 (2d Cir. 2001) (applying the Davis standard to a high school’s special education evaluation process).

Though we do not read this to give schools leave to adopt requirements that are not reasonably related to the program at issue, cf. id., we “extend[] judicial deference to an educational institution’s academic decisions in ADA and Rehabilitation Act cases.” Zuckle, 166 F.3d at 1047. And it is not unreasonable to require a minimum of eighth grade proficiency from anyone who is applying to a magnet high school.

That Congress did not intend to provide a private cause of action for monetary damages based on such a claim is confirmed when these provisions are read in the context of Con- gress’s other education policies. In particular, Congress has explicitly contemplated that public school districts might create magnet and charter programs. See 20 U.S.C. § 1413(a)(5); 34 C.F.R. §§ 226, 280. It has required special approval by the Secretary of Education that any such program is in compliance with federal law for magnet schools to receive federal funding. 34 C.F.R. § 280 (implementing the Magnet Schools Assistance Program). Hundreds of school districts have taken advantage of these procedures, many creating schools with competitive admissions policies more stringent than those here. Cf. U.S. Dep’t of Education, Successful Magnet High Schools: Innovations in Education (2008), available at http://www2.ed.gov/admins/comm/ choice/magnet-hs/index.html. And yet, we know of no case holding such institutions liable for violations of the ADA or Rehabilitation Act. Nor do we know of any regulation adopted pursuant to the Rehabilitation Act, the ADA, or the IDEA that prohibits such practices. Indeed the burgeoning number of charter and magnet school programs operating without the interference of either Congress or the Department of Education confirms that they are an accepted part of our educational system. As such, we will not impose liability upon them without further indication of Congressional intent.

This language is deeply problematic. Both the ADA and Section 504 require school districts to make reasonable modifications in their policies and practices in order to avoid discrimination on the basis of disability. That's clear from the Department of Justice regulations implementing Title II of the ADA, the Department of Education regulations implementing Section 504 in the school setting, and a long line of post-Southeastern judicial decisions. And there is nothing in those statutes that exempt magnet and charter schools from these requirements. Indeed, Section 504 applies to every entity that receives federal financial assistance, and Title II applies to every service, program, or activity of a state or local government. The Supreme Court's decision in Pennsylvania Department of Corrections v. Yeskey specifically rejected the notion that lower courts could demand "further indication of Congressional intent" (to quote the Ninth Circuit here) before applying those statutes to the fullest extent of their plain terms.

Perhaps the case is best read as simply holding that the modification the plaintiff sought to this magnet school's admissions criteria was necessarily unreasonable. But the court provides no analysis on this point, only the statement that courts defer to academic decisions and the ipse dixit that "is not unreasonable to require a minimum of eighth grade proficiency from anyone who is applying to a magnet high school." And the remainder of the court's language suggests a much broader, and more problematic, holding.

To decide questions of the magnitude of the ones presented here, in such broad terms, in a published opinion, and to do so in a case in which the losing party was not even represented by counsel, does not seem to me the right way to go about things.