U.S. Department of Justice
Civil Rights Division
June 2004 -- Issue One
is a monthly update about the Civil Rights Divisions activities in the area of disability rights. The Division enforces laws prohibiting discrimination based on disability in employment, housing, access to businesses serving the public, access to government programs and services including voting and public transportation, and unconstitutional conditions in institutions of confinement.
In this Issue:
Supreme Court .....1
ADA Mediation .....2
The Supreme Court ruled in a 5-4 decision in Tennessee v. Lane on May 17, 2004, that individuals may sue states to make their courts accessible under the ADA.
One of the Justice Departments most innovative programs is the ADA Mediation Program through which complaints are referred to professional mediators who have been trained in the legal requirements of the ADA. This has proven to be an effective way to resolve ADA complaints at much less cost and in a shorter period of time than traditional investigations or litigation. From the programs inception in 1994, more than 75% of the complaints mediated have been resolved successfully.
On April 15, 2004, the Justice Department filed suit against the State of New York and the New York public university system for violating the rights of students with disabilities. The lawsuit, filed in the United States District Court for the Northern District of New York, alleges that New York failed to offer voter registration opportunities for students with disabilities as required by Section 7 of the National Voter Registration Act (NVRA). Specifically, the NVRA requires states to designate, as mandatory voter registration offices, all state-funded offices that primarily serve persons with disabilities. The disability services offices at the State University of New York (SUNY) and the City University of New York (CUNY), including those on their community college campuses, have never been so designated.
In March, the Department of Justice signed settlement agreements with the Maryland Department of Juvenile Services (MDJS) and with Youth Services International, Inc. and its parent corporation Correctional Services Corp. (collectively YSI), regarding the provision of services required by the Americans with Disabilities Act (ADA) to juveniles with hearing disabilities. MDJS and YSI have agreed to provide required assistance to juveniles detained in their facilities or receiving their services. The agreements originated with complaints filed with the Department by a juvenile who was deaf.
The juvenile alleged that during his five-month detention at an MDJS facility he was never provided access to an interpreter, and that during a 13-month stay at a YSI-operated facility he was permitted only limited access to an interpreter. This lack of access largely prevented him from participating in rehabilitation, counseling, and other social and educational programs offered at the facilities. In addition, even when provided an interpreter, he was subjected to segregated housing and limited opportunities for participation in programs.
Under the agreements, the agencies will:
This agreement is another step forward in carrying out President Bushs New Freedom Initiative, a comprehensive program announced in early 2001 to eliminate discrimination against people with disabilities and ensure access to all areas of community life as required by federal law.
The Justice Department announced the results of its investigation into conditions at Conway Human Development Center (Conway), in Conway, Arkansas, a facility that provides care for approximately 550 residents with developmental disabilities such as mental retardation, cerebral palsy, epilepsy, and autism, ranging in age from 11 to 66. The Department found substantial civil rights violations in the care provided to the residents of Conway and transmitted its findings in a letter from R. Alexander Acosta, Assistant Attorney General for Civil Rights, to Arkansas Governor Mike Huckabee. The letter concludes a 17-month investigation into the terms and conditions of residency at Conway. The investigation found evidence of egregiously deficient, and at times life- threatening, medical care, as well as deficient physical and nutritional management and therapy services. The text of the letter is available online at www.usdoj.gov/crt/split/findsettle.htm.
Residents of such facilities are among our most vulnerable citizens, and all too often lack voice or representation in our public processes, said Assistant Attorney General R. Alexander Acosta. We will ensure respect for their civil rights.
According to the findings letter, the investigation revealed that, over the three months prior to her death, one resident experienced more than eight separate episodes of significant bleeding at the site of her colostomy bag, sometimes in amounts sufficient to spill blood onto her legs and soak her clothing. Yet, according to the letter, Conway staff failed to address the bleeding.
The Department also found evidence that the facilitys neurological care was critically deficient. A majority of Conway residents suffer from seizure disorders, yet the manner of prescribing anti-convulsant medications at Conway may in some instances have actually worsened residents seizure disorders. Especially disturbing was Conways failure to develop an accountable system for investigating resident deaths, particularly in light of the facilitys identified deficiencies.
The investigation also identified inadequate special education services provided to school-aged residents in violation of the Individuals with Disabilities Education Act. Actual daily instruction time was extremely limited, in some cases lasting as little as six minutes, and the content of class instruction was not educational.
Lastly, the Department alleges that some Conway residents were not being treated in the most integrated setting appropriate to their individualized needs as required by the Americans with Disabilities Act. A number of residents have lived at Conway for most of their lives without the state ever making any meaningful attempt to determine whether they could function in a more appropriate setting. Other residents previously identified for community placement, in some cases decades ago, have never been transferred back into the community.
Since 2001, the Department of Justice has opened 43 similar investigations into nursing homes, mental health facilities, juvenile justice facilities, prisons, and residences for persons with developmental disabilities.
For the first time since the Fair Housing Act prohibited discrimination based on disability, a court has decided whether multifamily housing must have accessible walkways connecting apartments to amenities, such as a clubhouse or swimming pool, and to the public street. The Justice Department argued that the answer is ordinarily, yes. United States District Judge Bernice Donaldson agreed in an opinion issued April 27, granting in large part the Departments motion for summary judgment on this and other issues in a protracted and contentious case against Memphis area builders.
The case, U.S. v. Grant, concerned Camden Grove and Wyndham, both multi-acre complexes comprised of apartment buildings that resemble large, single-family homes with driveways and attached garages. A network of roads connects the driveways to the exercise facility, clubhouse, mail kiosks and refuse facilities, but there are no sidewalks except for short approach walks to apartment and amenity entrances. Most of the driveways, particularly at Camden, are steeply pitched and the roads at both properties slope towards their centers. The Department argued that the law requires accessible pedestrian routes except in rare instances where physical barriers or legal restrictions, outside the control of the owner, make them impractical to install. The builders argued that automobile routes sufficed to meet their obligations. After some 400 pages of briefing on motions for preliminary injunction and summary judgment, the Department decided to film a short movie to vividly illustrate the consequences of the Grants argument.
Individuals who use manual and powered wheelchairs and who are employed by or affiliated with the Memphis Center for Independent Living, as well as a University of Memphis graduate student, volunteered to spend three cold days last January transferring into and out of cars, trucks, and vans, in an attempt to get from one place to another within the apartment complexes. The resulting Day in the Life video dramatically brought to life the dry statutory and regulatory arguments: A multifamily housing complex that requires persons with disabilities to drive or, for the many persons with disabilities who do not drive, to be transported to the bus stop, laundry, playground, pool, social lounge, rental office, mail boxes, or even to the door of a neighbors home for a visit is not readily accessible to and usable by them.
The slope of this parking space is too steep
for people who use wheelchairs.
The courts order is available online at www.usdoj.gov/crt/housing/documents/grantorder1.htm. Further information concerning the Fair Housing Act may be found at www.usdoj.gov/crt/housing/hcehome.html.
From January 1, 2001, through May 28, 2004, the Civil Rights Division has filed 51 lawsuits alleging discrimination in housing based on disability, including 30 lawsuits alleging failures to design and construct apartments to be accessible to persons with disabilities.
The owner, developer, and architect of an apartment complex in Nevada have settled a Fair Housing lawsuit brought by the Justice Department on referral from the Department of Housing and Urban Development. The government alleged the apartment complex has no accessible route into the apartments, doors in the units are too narrow to allow access by persons using wheelchairs, bathroom walls lack reinforcements needed for the safe installation of grab bars, and the common and public use areas are not accessible.
When designers and developers of new construction fail to meet accessibility standards, they effectively deny housing to persons with disabilities, said R. Alexander Acosta, Assistant Attorney General for Civil Rights. Todays settlement is a reminder that we will not accept such violations of the law.
The defendants have agreed to pay a total of $718,000 to make the complex accessible to persons with disabilities.
On May 13, 2004, the Justice Department sued a Chicago-area condominium association charging that the association requires residents who use wheelchairs to enter the building through its rear service entrance, even though the front entrance is fully accessible and the rear entrance abuts a loading dock and garbage dumpsters. The case was originally filed by the parents of a boy with a disability living in the condominium. The Justice Departments suit, which includes a claim that the association has engaged in a pattern or practice of discrimination against persons with disabilities, seeks monetary damages for the plaintiffs and requests that a civil penalty be imposed, along with an order enjoining the associations policy.
The law demands fair treatment in housing for individuals with disabilities, said R. Alexander Acosta, Assistant Attorney General for Civil Rights. Forcing residents who use wheelchairs to enter their home through the back door is demeaning and far less than they deserve.
The Maryland Accessibility Code has been certified by the Department of Justice as meeting or exceeding the requirements for the design and construction of accessible buildings and facilities under the ADA. Maryland Governor Robert Ehrlich, Jr., joined Assistant Attorney General R. Alexander Acosta, in making the announcement on February 18, 2004, at a ceremony in Annapolis, Maryland.
The ADA establishes design standards to ensure that newly built and altered public accommodations and commercial facilities will be accessible to people with disabilities. The ADA also permits states to submit their formally adopted accessibility codes for federal certification. If the state code meets or exceeds the level of access required by the federal requirements, the Department of Justice may certify the state code.
Certification is truly a win-win scenario both for individuals with disabilities and Maryland businesses, said R. Alexander Acosta, Assistant Attorney General for Civil Rights. It will allow state officials and building code inspectors to check compliance early in the construction process, when mistakes are more readily caught and less expensively fixed. Through certification, we can achieve more accessibility with fewer burdens, less litigation, and significantly less cost.
The Maryland certification followed a pair of public hearings in Ellicott City, Maryland and Washington, D.C. at which commenters unanimously supported the Justice Departments proposed action. The State of Maryland is the first state since 1998, and the fifth overall, to achieve state code certification. The Justice Department previously certified the codes of the States of Washington, Texas, Maine and Florida.
The Department wants to increase the number of states with certified accessibility codes and has actively sought to certify additional codes. In this regard, the Department began a campaign to reach out to state governors and accessibility officials to encourage them to seek ADA certification and hopes to certify additional states over the coming year.
Maryland today joins a small but banner group of states which have achieved this milestone, said Acosta. We hope that other states will soon follow.
At present, the Department is working with California, Indiana, New Jersey, North Carolina, and Utah to obtain certification for their state accessibility codes.
(left to right) Director Kristen Cox, Assistant Attorney General R. Alexander Acosta,
Governor Robert Ehrlich, Jr., and Secretary Victor Hoskins
at the ceremony in Annapolis
Assistant Attorney General Alex Acosta spoke at this years Annual Expo for small businesses hosted by the U.S. Small Business Administration. In addition, ADA specialists staffed a booth in the exposition hall to answer questions and disseminate ADA information to conference attendees. The Expo was held on May 20-21 in Orlando, FL.
Civil Rights Division staff participated in a continuting education seminar for interior designers, architects and hotel owners on the accessible design requirements for hotels at the Hospitality Design Expo in Las Vegas.
Division staff also presented three workshops at the National ADA Symposium and Expo 2004 in May on the requirements of titles II and III of the ADA, the role and responsibilities of ADA coordinators, and the Departments recent enforcement and technical assistance efforts and initiatives. The three-day conference, sponsored by the Great Plains ADA & IT Center, was attended by more than 400 participants from 47 states and included representatives of state and local governments, ADA coordinators, building inspectors, attorneys, business owners, and persons with disabilities.
Under the auspices of the U.S. Environmental Protection Agency, Office of Pesticide Programs, Division staff recently gave a presentation in Davis, CA on the requirements of the ADA for state/tribal regulators that train, certify, license and otherwise regulate the chemical industry.
August 11, 2005