#Gorsuch On Disability - ACLU Statement

I blogged the other day about the Hwang v KSU disability rights case. Here's an actual disability rights lawyer, Claudia Center, for the ACLU on the case and others.

Under established disability rights laws, a request for leave due to a disability must be evaluated on a case-by-case basis to decide whether the request would present an undue hardship to the employer. This is a factual determination. Yet, before any evidence could be presented in the case on whether such an accommodation might present a problem for KSU — a federally funded, multi-million-dollar employer — Judge Gorsuch ruled that Professor Grace Hwang’s request for an additional leave of absence was simply unreasonable.

Overall, Gorsuch shows that he wants to defend institutions against individual needs. Center writes:

One of the primary principles underlying disability rights laws is the idea that there will be times when we need to level the playing field to give people with disabilities an equal opportunity — an opportunity to get an education, to get or keep a job, to be productive members of society. The Americans with Disabilities Act and other disability rights laws recognize financial, practical, and administrative burdens. But the laws also emphasize the individual nature of each situation. An accommodation that works for one person might not work for another. Similarly, what would be required for one employer might be a hardship for another. The court needs to look at the facts, not draw arbitrary, bright-line rules.

I'll do the IDEA case tomorrow.

#Gorsuch on Disability Law: Forced Timeouts Are Ok!

#Gorsuch did not author the decision here, but it's pro-forced-seclusion to force compliance. #CultOfCompliancehttps://t.co/DStysUaTS1 pic.twitter.com/dtmaUb4RFR

— David M. Perry (@Lollardfish) February 1, 2017

This decision was NOT written by Gorsuch, but he did concur. It was written by Michael McConnell, a Bush (W.) appointee and an interesting guy.  When it comes to disability cases that Gorsuch heard, this finding stands out to me, as it plays into the broader patterns of the #CultOfCompliance that I study. Forced seclusion is one of the standard techniques that show up in school abuses cases, especially when used to force compliance, rather than as part of a planned, behavioral management strategy (due to violence, etc.).

So, in Couture vs Board of Ed. of Albuquerque, Jennifer Couture was suing about her son being placed in the "timeout room," a euphemism for forced seclusion, in order to coerce behavior.

In 2002, when he was six years old, he was placed in a special education program at the Governor Bent Elementary School.   School officials worked with his mother, Jennifer Couture, to develop an Individualized Education Plan (IEP).   The plan included a “behavior management system” designed to teach M.C. to control his dangerous outbursts.   In addition to implementing clear and strict rules, the system permitted teachers to place M.C. in supervised timeouts when his behavior became disruptive.

Despite the small class size and personal attention M.C. received, his behavior did not improve, and, at times, it deteriorated.   M.C. frequently interrupted class and often made it impossible for the teachers to instruct the other students.   When they could not control his behavior, the teachers placed him in timeout until he calmed down for a period of at least five minutes.   The appropriateness of these timeouts, and the characteristics of the timeout room, are the central issues in this suit.

This is a 4th amendment case, principally, as I read it. Seclusion is often used within behavior management plans, but they are also often abused to just force a child to behave in a given way. That's what the plaintiff was contending here. The judges overturned a ruling in her favor to argue that the school was fine. Here's the paragraph that bothers me the most:

There is some factual dispute over the factual basis for the timeout:  whether M.C.'s refusal to follow was the sole cause of the seizure that day.  

Was it an appropriate use of seclusion as according to the plan (not a plan I'd agree to in most contexts, but still), or were the teachers just mad he wasn't obeying their orders? The judge seems to say the latter, but then says it's still ok to seize the child and seclude him.

We resolve that dispute, as did the district court, in favor of the plaintiff.   Nonetheless, the seizure was still justified at its inception.   The Fourth Amendment does not hold that ensuring the safety of the class is the sole permissible reason for sending students to time out.   M.C.'s own IEP suggests that timeouts may be useful as a technique to obtain cooperation and participation and to teach M.C. to “do what is asked of him.”   App. 466.   If corporal punishment is a constitutionally acceptable form of discipline for a student's defiance, it is implausible that timeouts are not.   See Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977).  

Finally:

When M.C. refused to do his school work, it was not unreasonable for the teachers to send him to a five-minute timeout in the hope of obtaining his cooperation in the future.

This is the Cult of Compliance. Obey or be punished.

I've read too many cases of kids placed in seclusion because they wouldn't comply with directives. Also, corporal punishment may be constitutionally acceptable, but it's also wrong.

I'll continue this series as I have time.

#Gorsuch on Disability - Hwang v Kansas State University

I plan to blog some of the cases that new SCOTUS nominee Gorsuch has ruled on or concurred in regards to disability. The record is mixed. He has the typical conservative skepticism about federal regulation, disdain for class actions, and protection of corporate over individual interests. Beyond that, we'll need to look at specifics.

Note: I am not a lawyer, just a close reader of texts. Smart comments from lawyers on stuff I get wrong will always be welcome.

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In Hwang v KSU, a professor (listed as assistant professor, but reading as if she's on a one-year contract, which might just be her pre-tenure contract) got cancer. She received 6 months paid leave, was still sick and asked for more time, and was instead fired (with disability benefits). She sued. Lost. Appealed. Lost.

Here's the nut paragraph from Gorsuch's ruling:

Still, it’s difficult to conceive how an employee’s absence for six months — an absence in which she could not work from home, part-time, or in any way in any place — could be consistent with discharging the essential functions of most any job in the national economy today. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation. Ms. Hwang’s is a terrible problem, one in no way of her own making, but it’s a problem other forms of social security aim to address. The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.

He's an accessible, sharp, writer. I can see why people like him. His position here, as I see it, isn't unreasonable. If an employee can't work due to disability, the employer isn't obligated to provide social security, that's what social security is for!

Of course: Republicans also want to gut social security and shred the safety net.

More to come in this exciting new series!