Justice Statement of Interest on "reasonable" standard

[guess]

Alboniga v. School Board of Broward County, Florida, No. 14-60085 (S. D. Fla.)

The accommodation at matter is service dog related but this issue is the interpretation of "reasonableness" for accommodations, how they differ from modifications, and deference to Justice Department's regulatory interpretation.  This has absolutely everything to do with access and equal opportunity, and inclusion.  It is ADA specific to service dogs so there's that, but overall a testament to that tension between reasonableness and the barriers that the ADA is designed to knock down.

regulation is a reasonable construction of the ADA because it promotes the statute's overarching goals of ensuring equal opportunity for, and full participation by, individuals with disabilities in all aspects of civic life.  See 42 U.S.C. § 12101(a)(3) (noting that discrimination persists in education); id. § 12101(a)(7) (ADA's goals "are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency"); see Bledsoe, 133 F.3d at 821 (purpose of title II is to "continue to break down barriers to the integrated participation of people with disabilities") (quoting H.R. Rep. No. 101-485(II), at 49-50 (1990), as reprinted in 1990 U.S.C.C.A.N. 445, 472-73).  The regulation fulfills these statutory goals by carrying out Congress's direction that the ADA not merely prohibit outright discrimination, but that it go further to require "modifications to existing facilities and practices" to accommodate individuals with disabilities.  Id. § 12101(a)(5); see Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 598 (1999) ("Congress had a more comprehensive view of the concept of discrimination advanced in the ADA."). 

The School Board may believe the other steps it has taken to accommodate A.M. are sufficient (Def.'s Mot. at 15), but it is not for the School Board to survey the universe of possible accommodations or modifications and determine for A.M. the best, or most "reasonable" (from its perspective) approach. Rather, as Congress has made clear, the ADA is designed to respect the choices of individuals with disabilities and ensure their ability to live independently.  See Hearing Before the S. Comm. on Labor & Human Resources, 101st Cong. 188 (1989) (statement of Sen. Harkin) ("[P]eople with disabilities are entitled to lead independent and productive lives, to make choices for themselves, and be integrated and mainstreamed into society."); see also Tennessee v. Lane, 541 U.S. 509, 538 (2004) (Ginsburg, J., concurring) (ADA is Congress's "barrier-lowering, dignity-respecting national solution"). 

As such, the Department's Title II regulation requires that public entities administer their services, programs, and activities "in the most integrated setting" appropriate to the needs of individuals with disabilities, and it prohibits public entities from requiring any individual with a disability "to accept an accommodation . . . which the individual chooses not to accept."  28 C.F.R. §§ 35.130(d), (e)(1); see 28 C.F.R. pt. 35, app. B § 35.130 at 688 (July 1, 2014) (citing Judiciary Report at 71-72) (the ADA "is not designed to foster discrimination through mandatory acceptance of special services.").   

In case this is needed.  This is not an opinion but many of the principles transfer.

How to Read a Legal Opinion: A Guide for New Law Students
Orin S. Kerr
George Washington University - Law School

Abstract:     
This essay is designed to help new law students prepare for the first few weeks of class. It explains what judicial opinions are, how they are structured, and what law students should look for when reading them.

[CMdeux]

and it prohibits public entities from requiring any individual with a disability "to accept an accommodation . . . which the individual chooses not to accept."  28 C.F.R. §§ 35.130(d), (e)(1); see 28 C.F.R. pt. 35, app. B § 35.130 at 688 (July 1, 2014) (citing Judiciary Report at 71-72) (the ADA "is not designed to foster discrimination through mandatory acceptance of special services.").



I'm particularly LOVING this in the context of "this word... I do not think it means..."

[ajasfolks2]

I'm loving this too:

Rather, as Congress has made clear, the ADA is designed to respect the choices of individuals with disabilities and ensure their ability to live independently.

Thank you for this thread!!!   

[guess]

Well, it is largely specific to service dogs called out in Title II.  Certainly the structure and purpose of what modifications or accommodations are for, and why and how public entities should meet them in order to provide equal opportunity and access for the individual disability under ADA has some applicability.  There are no such specific call outs to LTFA under Title II but ADA AA is non-specific on qualifying condition, and we know satisfying one statute does not automatically mean all are satisfied for the purposes of delivering FAPE thanks to Tustin.

In my non-lawyer opinion.  Of course, the judiciary branch may not agree all that much with executive or administrative law.  Not to mention the generous exemptions for DOT and religious entities who are not recipients running private schools.

But this statement was in response to public education school boards responsibility to meet needs with the student's choice as a factor not unilaterally by the school through a narrow interpretation of reasonable.  Sounds familiar.

Service dogs do tend to be one of those categories of 'impact on other students' accommodations written alongside food allergy accommodations in COSA literature.  Those dots have been connected before by NSBA's legal arm.

Citing my source.  I can put an APA cite if desired.  It covers service dogs and peanut allergy.  Note how in this COSA document it's framed as "beyond inclusion."  Very different from the Statement of Interest issued.

Abstract:
This paper provides suggestions for dealing with issues beyond the inclusion of students with disabilities, such as accommodating students with severe allergies or behavioral problems in general classes.