Rule 357

If at the end of the assignment the Deaf Client asks you what “that sign you kept using” meant… and you realize it was just you pushing your hair out of your eyes, repeatedly; the bangs ain’t working for you boo. 

Uncle Dale’s “You Probably Should Know”: Title I of the Americans with Disabilities Act and Authority.

Hi everybody!

Title I of the ADA.  Ok ok! I know I have been down this road once, but I got ahead of myself.   My previous blog is still valid (awesome even) but it will make much more sense after this blog/vlog. So go I would suggest you look at that one again after you finish this.

So, we already talked about Section 504.  Remember, federal executive agencies, any State agency or political subdivision (counties, cities, towns…) or private business that receives federal funds must not discriminate against people with disabilities under Section 504.  If 504 covers that then why do we need the ADA?  Well, because a whole lot of agencies and private businesses don’t accept federal money, so don’t have to follow Section 504; what about them?  The answer is the ADA.

And that brings us back the authority question. According to the 10th Amendment Congress can only pass laws over the things the Constitution gives them specific authority.  The Constitution never mentions Deaf people or people with disabilities, so Congress needed  to find Constitutional authority that would give it the power to pass a law requiring both States and private businesses not to discriminate against people with disabilities.

In the end they had to go with two; The 14th Amendment for anything relating to “state actors” and the Commerce Clause for private businesses.

Commerce Clause

This authority is important, but it is much easier to explain the Commerce Clause when we talk about Title III of the ADA.  So I will just say that the Commerce Clause is the authority Congress used to pass a law that obligates private businesses not to discriminate against people with disabilities. Specifically, under Title I, not to discriminate against people with disabilities in the area of employment.  I will explain how to actually enforce Title I in another vlog.  Stay tuned!

The 14th Amendment 

The 14th Amendment was proposed to dismantle slavery following the Civil War and so it pronounces a list of Rights. Our discussion will focus on Equal Protection, Due Process and Section 5 or the Enforcement Clause of the 14th Amendment, that enables Congress to pass laws enforcing the Rights listed in the 14th Amendment’s other provisions.

I know it sounds like a cop out but it is much easier to explain the principles of Equal Protection and Due Process when we talk about Title II so I will get deeper into it there, but here is what you need to know, the authority of the 14th Amendment is locked in a death battle with the 11th Amendment.

The 11th Amendment

The idea of the 11th Amendment pre-dates the Constitution.  It’s based on an English legal theory called Sovereign Immunity (you can’t sue the king).  What the Supreme Court says is that the 11th Amendment makes States immune from suit (because we are the State and so if you sue the State you are really just suing yourself… whatever). However, you can sue the State if State agrees to be sued (happens more often than you think) or the Constitution gives Congress the authority to “abrogate” (step-around) the 11th Amendment.

(If you read the 11th Amendment you will say, “hey! It doesn’t say that!”  Well, if you on were the Supreme Court your opinion on that topic may matter… but you’re not, so it doesn’t.)

14th vs 11th  

So, the 14th Amendment gives Congress the power to pass laws that obligate the State (meaning Utah, Massachusetts, California…) and its political subdivisions (counties, cities, towns…) to obey civil rights laws, like Title I of the ADA, if (there is always an if), the reason Congress is passing the law is to correct a history of discrimination (it must have already happened… its not to prevent possible future discrimination) and the law Congress passes using the 14th Amendment is the least burdensome means of correcting the history of discrimination (congruence and proportionality).

A few years ago the University of Alabama argued that it was reasonable (rational) to demote an administrative nurse who had returned to work following treatment for breast cancer because it was rational to want a person without a history of cancer (a healthy person misses fewer days at work) in an administrative position. Alabama never really claimed that their position was not discrimination, it claimed that it was not illegal discrimination because Congress did not have the authority to pass Title I of the ADA because could not show a sufficient history of discrimination against people with disabilities by States to warrant abrogation of the 11th Amendment (psst there are pages and pages of examples going State by State in the Congressional record in alphabetical order of discrimination against people with disabilities). Alabama claimed the lack of evidence meant that the ADA lacked congruence and proportionality. The level of discrimination did not warrant the burden the law imposed on the 11th Amendment.

The Supreme Court agreed.

The Court found that Congress lacked the authority to force States (but not counties, cities and towns) to be obligated by Title I so far as making the States pay money (like back pay, compensation or punitive damages) if it discriminated against people with disabilities.  Furthermore the Court decided it was rational to want a person without cancer (person without a disability) in the job of administrative nurse.

So Title I, for all real and useful purposes, went away as it applied to State employers.

BUT

Section 504 still applies and it gives very similar protections to Title I.

Wait? Why does 504 still apply? Because the AUTHORITY Congress used to pass it is different.  If a State employer accepts federal money it agrees to being sued for violating Section 504.  See I told you States would actually agree sometimes.  THAT is your first taste of why we need BOTH Section 504 and the ADA.

Private Companies

This of course has no impact on Private Companies; they still have to follow the ADA (if… the have 15 or more employees— discussion for another time).  Title I applies to private companies because Congress used a different authority to pass the part of Title I that obligates them to follow Title I. As I mentioned, it’s called the Commerce Clause and we will get to that when we discuss Title III. We will get a little deeper into 14th Amendment when talking about Title II.

Title II is next…

Note From Uncle Dale: The “O’Hara Scale” for Measuring Epic Advocacy and Argument 

Hello! Uncle Dale back again. Now, I realized it’s been a while since I wrote a Note from Uncle Dale, but a conversation I had yesterday inspired me. It’s been long enough.  Grin.

I will admit, I have been known to argue every now and again (it’s almost always “now” and frequently “again”). I am an advocate at heart. The lovely and talented Aunt SuperTam will tell you that I long ago blurred the line between arguing professionally and recreationally.  She is probably right (and as Aunt SuperTam says, when I say probably I mean definitely).

So a group of my students happened upon me in an empty hallway and caught the very end of an overly polite discussion between myself and opposing counsel in a case I am working on.

The only thing the students heard was “of course that’s a threat to sue your client,  if that was not clear to you I must have said it incorrectly.”

I pointed the students back in the direction from which they came with a look that said “can you find another route, kinda busy here?” They walked away and I finished my conversation.

Before class I ran into a couple of them and one said “I have finally heard a legendary “Mean Dale Argument” for myself.

I replied, “Oh, that was just banter, if the grand scheme of things that was nothing. Not even a 5 on the O’Hara Scale.”

They looked at me in puzzlement.

I explained, “when it comes to argument I have a very well established tool for measuring how epic and legendary an argument is. It’s called ‘The O’Hara Scale.'”

What is the O’Hara Scale you ask?

It’s kinda like The Scoville Scale (measurement of the pungency or ‘spicy heat’ of chili peppers) but it sets the parameters for what is an just an argument and what is a legendary argument.

Here’s is how I came up with it.

Back in the 1990s Stephen King was overseeing the filming of a mini-series version of his novel “The Stand” near where I live.  If you are not familiar with The Stand there is a character who is Deaf, a main character mind you, named Nick Andros.  This was at the beginning of the movement to have Deaf characters played by Deaf actors (Anthony Natale would have been perfect… well maybe he was a little young at the time. But I digress).

Locally there lived a mother of Deaf children named Bronwyn O’Hara.

I remember quite clearly how vocal she was on the issue. It was a gateway for her own children to see that people who are Deaf can do anything and, well, hearing playing Deaf is just wrong.  It’s the same discussion we are still having about white actors playing people of color or whitewashing roles in movies; ‘playing Deaf’ is just wrong.

When they announced that Nick Andros would be played by Rob Lowe it caused a great amount of upset here. None more openly than Bronwyn O’Hara.

Now here is where we get to rumor and conjecture. There is a possibly apocryphal story that Bronwyn, after much… we will call it dialogue or persuasion, got an audience with Stephen King at a group of trailers set up to support the production near our local zoo. Legend has it that it got heated.  Very very heated.

Like I said, that was the story at the time. But I tend to believe it (if it’s not true Bronwyn I don’t want to know-I like the legend), the reason I believe it is that while Rob Lowe still played the role of Nick Andros, Bronwyn appears to have gotten to Mr. King. She stuck in his mind.  How do I know?

While Mr. King was overseeing the production of The Stand he was writing a novel titled “Rose Madder.”

Ladies and Gentlemen I give you page 418 of the Stephen King novel Rose Madder!

Yes, Bronwyn’s rhetoric was so skilled that he called her “wonderful,” but so upsetting that he also KILLED HER OFF with a brain aneurysm! HE BLEW UP HER BRAIN! Seriously, you have to love the symbolism!!!

I will have achieved legendary argument status when and only when my opponent’s sole recourse and response to my advocacy is to write a novel wherein he or she says nice things about me… and then kills me off!

That is the top of the O’Hara Scale.

Life goals.

Life goals.

Rule 332

CPC compatible answers to the question, “How was your day?” (An on-going series):

Well, first thing this morning… wait, did you cut your hair? It is so cute! When did you do it?