Uncle Dale’s “You Probably Should Know”: Title II (Part One); First,You Have to Know This!

(Vlog to come!)

Hello everyone!  It’s been a while since this topic has been on the table. But. The fun continues!

Just to let you know I was going to do all of this in one post… but, I want to keep the vlogs to around ten minutes of less and WOW there is a lot to discuss here!

If you remember the vlog on Title I, you know we start Title II with a confusing question (if you don’t know what I mean go back and watch it! Seriously).

Title I of the ADA was passed by Congress using the authority of the 14th amendment and the Commerce Clause (we will discuss the Commerce Clause when we talk about Title III).

Alabama challenged Congress’ authority to obligate the States under Title I, because Alabama said there was no Proportionality and Congruence (oy! I get to spell that again!) in other words Congress failed to show that there was a history of discrimination by States that was pervasive enough to overcome the 11th Amendment (Sovereign Immunity).

Remember that the Congressional history cites like 50 or so pages of individual discriminatory acts, in alphabetical order, State by State.

Despite page after page in the congressional history documenting discrimination (if you don’t know what I’m talking about go back and watch Title I) the Supreme Court agreed with Alabama and gutted the application of Title I in regards to State employers (but not counties, cities or towns… it’s a federalist States rights thing… and not as Title I applies to private businesses, because Congress’ authority for private business came from a different place in the Constitution, the Commerce Clause-we will get there!)

So.

What about Title II?  Title II also burdens the States and also uses the authority of the 14th Amendment. ONLY the authority of the 14th Amendment!  So if the Supreme Court decided that Title I was a no go… what about Title II?

Therein lies a story.

After Title I went south those attorneys who, like me, fight for the civil rights of people with disabilities were, how to put this… losing their cool.  If the 11th Amendment is king (ha! pun!) then Title II could go away forever!  All of it.  So the search was on for the perfect Plaintiff. Someone who the Supreme Court could not refuse (or the public would identify with).

Maybe a camera ready, noble single mother between 23 and 33 with two adorable waifish children who was refused a vital government benefit or service by an evil government functionary because of her disability…

What we got was George Lane.

Lane used a wheelchair for mobility after a 1997 car accident in which he was accused of driving on the wrong side of the road. A person was killed in the crash, and Lane faced misdemeanor charges of reckless driving.  Needless to say, he was not the Plaintiff they were looking for.

His Title II case arose because when he showed up for court at a venerable old Tennessee Court House.  Since the place had no wheelchair accessibility (no elevator), he would have had to resort to crawling up several flights of stairs arm over arm dragging his wheelchair to access the courtroom in which he was required to appear. When he refused to do so he was charged with failure to appear and jailed.

As I said, not exactly a “made to order” Plaintiff in the uncertain “post-Garrett” world and absolutely NOT what we were looking for-but his case is what was granted certiorari so that is what showed up in front of the Supreme Court.*

Tennessee made the same argument as Alabama; Congress had no authority to obligate States under the 14th Amendment because it failed to prove a history of discrimination by States toward people with disabilities; no Proportionality and Congruence.  Once again the Solicitor General of the United States pulled out the many many pages documenting discrimination, State by State, in alphabetical order.  This is the same list that the Supreme Court said was not sufficient to overcome the 11th Amendment for Title I.  The United States made roughly (Read as exactly) the same argument and the Supreme Court said… yes there is a sufficient history of discrimination to abrogate the 11th Amendment under Title II.

What? ok. What?  (take a deep breath…) think it through. What is the difference between the two cases?

The reason the Supreme Court found the list of historical discrimination insufficient for Title I but sufficient for Title II is simple- you have no Constitutional Right to a job

But you do have a Constitutional Right to access the Courts.  In the Sixth Amendment, its written right there.

But…

What does that mean for State entities that are not Courts?  What if it’s a State university that has discriminated? Or a State Hospital like the University of Alabama, only you didn’t want to work for them-so it’s not Title I-you wanted to access a benefit, program or service they offered? Does Title II apply then? Remember the Supreme Court said it found in Lane’s favor because of the Constitutional promises of the 6th Amendment… so does that mean you have to have a Constitutional violation to make Title II work?  The Supreme Court hinted that no, you did not, but then decided the next case involving Title II (US v Georgia, a prisoners with disabilities facing discrimination) in part because it involved 8th Amendment violations (cruel and unusual punishment).  As much as they hint that Constitutional violations are not required, this only Title II cases they have decided they attached to Constitutional violations.

Here is the real problem. If I was a State agency (but not a state court) and was reading the Lane decision I would think that it would in the best interests of my agency, from a strictly cost benefit standpoint, to deny any and all requests made for accommodations under Title II if there is no obvious Consitutional violation attached.

Think about it.

Look at the costs to my agency of providing interpreters to persons who are Deaf.  I can save that money in my budget by not providing interpreters.

Here is the analysis.

If I deny every request for and interpreter, not every person who is Deaf will have the will to file a Title II lawsuit to enforce their Rights; If they do, not every person who is Deaf will have access to the resouces to bring a Title II lawsuit to enforce their Rights; and if they have both the fire inside and the resources to bring a Title II lawsuit against my agency (can’t sue me personally under Title II), if there is not an obvious Consitutional violation (you have no Consitutional Right to most State programs or benefits) Title II may not even survive a challenge using the 11th Amendment defense.

Depressed?

Feeling like the law that you thought promised equity to persons who are Deaf is just mostly… worthless?  I cannot fault you for that, because the effectiveness of Title II is highly suspect outside of a Constitutional violation (please remember this is only an issue when it comes to States with a capital S, not cities or counties or towns…).

But…

Remember that Section 504 cannot be interpreted to provide less protection than Title II of the ADA if 504 covers the same subject matter as Title II.

Remember also that 504 applies any time a State agency accepts federal money.

Finally remember that following 9/11 the Department of Homeland security Made IT RAIN BABY! It would be a rare thing indeed to find a State agency that had not accepted federal funds.

Finally, remember that the courts have determined that by accepting federal money States have agreed to permit themselves to be sued under Section 504 and give up 11th amendment protections.

Whew.

We still need to talk about the Authority Congress used to pass Title II because despite all the problems I just showed you IT’S STILL GOOD LAW in every city, county, town, township, school district, water allotment board, zoning board, county animal control, county health department, library…

It’s worth knowing!

So. Title II and its Authority is next.

*there was in fact a second Plaintiff. A woman named Beverly Jones who is a court reporter who used a wheelchair and could not work in the second floor courtrooms for the same reason George Lane could not access them. I know what you are thinking, employment is a Title I issue and that is already not available to —- Ah. But —- is not an employee. She is an independent contractor. That is a different story and one that has a huge impact on interpreting.

We will discuss the issue of how independent contractors get protected under Title III in the very near future.

Rule 611

When a Doctor’s Office tells a Deaf person, “you have to bring your own interpreter,” I just want to ask the name of the wheelchair user they required to build that wheelchair-ramp in front of their building.

Uncle Dale’s “You Probably Should Know”: Borderline.

There was a question posed on social media today by a woman who is Deaf. The very short version of the story involved being stopped by Customs and Border Patrol as they returned from Canada. During the encounter they requested that the Agent communicate in writing.

The Agent refused to do so.

The Agent gave verbal commands to the Deaf couple that they did not understand and as the encounter progressed the Agent became more agitated and the Deaf couple more fearful. The power differential is obvious and the turmoil nationally gave them reason to be anxious.

When this woman who is Deaf posted her story she relied heavily on references to Title II of the ADA. I suggested she may wish to frame this under Section 504 as well.

She asked me to explain why I suggested Section 504, as she understood it to be an education law.

https://uncledalesrulesforinterpreters.wordpress.com/2017/03/10/rule-11/

I find that Rule 11 applies equally to the Deaf Community as well. This past week I presented a workshop at NAD/RID Region I that covers this very topic (just a side note. I gave an “hour and a half” version of a day long workshop where I physically walk attendees through federal laws like each is its own foreign country, with its own customs and language.

I will post a description of the workshop at the end.

I have submitted this workshop to several regional RID conferences but sadly no takers. NAD attendees and State Associations who have asked me to present it rave about it; its the clearest way to understand how the ADA, Section 504, IDEA and the ACA are similar and how each is markedly DIFFERENT. Anyway…)

I have been asked to post my answer to the question “why 504” on the Rules Blog so more people can see it.

Here is my answer:

“I can’t give you legal advice because I don’t have half enough facts. I am just giving a general idea of the differences and similarities between federal laws so you understand why you may want to look at Section 504 when framing the issue with these facts.

Customs/Border Patrol/ICE/Homeland Security are Federal Executive agencies which is one of the two entities 504 was designed to obligate (the other being any entity or business that accepts federal funds) so it seems 504 would be uniquely applicable.

I would still suggest including Title II in any discussion of a possible complaint you have with an attorney. Title II is good because it requires the agency to give “primary consideration” to the request made by the Deaf person (in this case writing). Understand that because Title II requires “primary consideration” when Section 504 overlaps with Title II, then Section 504 cannot be interpreted to provide less protection than Title II-so it would also require “Primary Consideration.”

However, Title II may have complications in enforcement. The more remote possible issue comes from a case called Tennessee v. Lane (and another case out of Georgia) that seem to indicate that there may be a requirement that you prove a Constitutional violation in order to enforce Title II. As this argument stems from an 11th Amendment conflict it may only be a problem if the State Police, not the Feds as it was according to the facts you laid out, were involved. But with the Federal Courts, including the Supreme Court, almost daily becoming more conservative and less responsive to the rights of individuals it is easy to imagine a Federal Agency making an argument for a more expansive application of the requirement or at least favoring the need for a Constitutional violation; from the brief description you gave I don’t see a Constitutional violation in your case.

Again, the courts have never said you MUST include a Constitutional violation, they have just said that they supported decisions in favor of the person with the disability “because” there was a Constitutional violation. One way or another it’s a possible extra fight you would not need.

The protections of Section 504 are equal in almost every respect to Title II in that Section 504 cannot be interpreted to provide less protection than Title II. In places where Section 504 is not equal to Title II there is an argument that it is better.

504 applies to all Executive Branch agencies and any entity accepting federal funds. As it must be interpreted in equity with (and sometimes better than) the ADA it covers the same ground as Title II but does not have the same possibility of needing to show a Constitutional violation (again the requirement for a Constitutional violation, if it exists at all, likely only applies to actions against States… but better safe than sorry as it were).

The second problem for a Title II action is one of wording and interpretation. Title II says that persons with disabilities are to be given equal access to the “programs, benefits and services” offered by government agencies.

Is the border patrol a benefit to you?

Is being searched a program?

Was searching you a service?

There is case law that goes both ways.

But 504 says:

(a) No otherwise qualified individual with a disability in the United States, as defined in section 705(20), shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service (emphasis added).

Applying the facts as you stated them you have a strong case that you were “subjected to discrimination” under the “activity” of Border Patrol conducting a search.

Again. This is not legal advice, just an observation. Talk to a lawyer in your area.

Hope that helps.

(My recent NAD workshop:

Federal Laws such as the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973 (504) and the Individuals with Disabilities Education Act are complex and confusing. It is vital for both deaf people and interpreters to understand the differences and similarities between, and even within, these laws. It is also vital to know the authorities through which each was passed in order to know which law applies to any specific situation, how a complaint is filed, what is and is not evidence of a violation and what remedies may be available if a violation is proven. There are so many differences it can be hard to keep it all straight! This workshop is presented as a “tour” of the laws as if each was its own country. “Uncle Dale Tours” lays each out like a map of a foreign land and the participants walk through each, see the sights and landmarks unique to each as well as their shared heritage. Each are issued a passport with certain knowledge points needed to earn a “visa” to the next law. It is equally fun and beneficial for the interpreter and community member. [0.125 PS])

Rule 573

The Americans with Disabilities Act is not a law. It is five laws (two of which you will likely NEVER use) that are kept in one three-ring-binder.

Never presume that understanding Title I gives you any insight into Title II or knowing the first two means you get Title III.

Section 501 (raise your hand if you knew that was a thing!), Section 504 and IDE(E)A are in separate binders, but heavily cross-referenced.

Rule 532

Dear Concert Security,

If you need something, maybe talk to the interpreter who is NOT actively interpreting.

Just a thought.

Love,

Logic & Courtesy

Rule 528

Legal interpreting is not as scary as you think; Medical interpreting is scarier than you think; and, Educational interpreting is more challenging than you think.

Note from Uncle Dale: Uncle Dale at NAD

Hi. So my friends what are your plans this summer?

I know, I know, you are looking out your window and thinking, “summer? You’re kidding right??” With the Nor’easter (what is it now?? Round Four?) right outside your door, summer feels a thousand years away. But you’ve got to have plans for the sun or you’ll never survive the snow!

I have been asked to give several workshops this summer and I will make some announcements of times and dates as the details are finalized.

My last Zaboosh workshop was Saturday March 17, 2018 (I will wear green).

But, as the title of this Note says, I am thrilled to announce that I will be presenting this summer at the NAD Biennial Convention in Hartford Connecticut July 3-7, 2018.

I am so excited to be going back east to my heart’s home!

In 1994 I spent a fantastic summer at the Mill in Chester Connecticut attending the summer program for The National Theatre of the Deaf. This was a life changing experience learning at the feet of Bernard Bragg, Adrian Blue, Camille Jeter, Shanny Mow, Andy Vasnick, Sandi Inches and so many other giants. I built friendships that summer that I treasure (those of you who wonder if Anthony Natale could really be as kind and supportive as he seems, the answer is yes. He is a beautiful person, inside and out). I plan to sneak away for a couple of hours and walk the streets of Chester once again.

NAD is a combined conference with RID Region I, so I hope to see my Boston family turn out! I miss you all daily! I mean it when I say family.

My workshop will be a “tour” of federal laws set up as if each were a different country. We will learn the “history and culture” of each law. It’s a blast! I hope to see you there!

See the Sights: A Tour of Federal Laws

Dale H Boam Esq.

Civil Rights & Legal Advocacy

Workshop Abstract:

Federal Laws such as the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973 (504) and the Individuals with Disabilities Education Act are complex and confusing. It is vital for both persons who are Deaf and Interpreters to understand the differences and similarities between, and even within, these laws. Its vital to know the authorities through which each was passed in order to know which law applies to any specific situation, how a complaint is filed, what is and is not evidence of a violation and what remedies may be available if a violation is proven. There are so many differences it can be hard to keep it all straight! This workshop is presented as a “tour” of the laws as if each was its own country. “Uncle Dale Tours” lays each out like a map of a foreign land and the participants walk though each, see the sights and landmarks unique to each as well as their shared heritage. Each are issued a passport with certain knowledge points needed to earn a “visa” to the next law. Its equally fun and beneficial for the interpreter and community member.

Workshop Partner:

General

Workshop Presenters:

Dale H Boam

Dale is a Tenured Associate Professor of Deaf Studies at Utah Valley University and an attorney advocating for the rights of persons who are Deaf. He consults and presents nationally on both interpreting and legal topics, including: The Physiology of Interpreting; The Physics of Processing Time; Cohesion and Orphans in Interpretation; Legal Rights of Individuals with Disabilities: Law, Deafness and Personhood; Vote: The Power is in Your Hands; Making the ADA Effective for the Deaf Community; and Serving the Client Who is Deaf. Dale recently received a favorable decision from the 9th Circuit Court making Section 504 more accessible to persons who are Deaf (See Ervine v. Desert View Regional Medical Center). Dale has advised NAD, the Organizing Board of the 2007 Deaflympic Games and the Organizing Board for Deaf Studies, Today!