Kerr Law OFFICE
Legal News and Updates
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Kerr Law OFFICELegal News and Updates |
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Sonja Kerr's comments on the Department of Education, Part III, Proposed Regulations of May 13, 2008.Proposed Regulations: http://edocket.access.gpo.gov/2008/pdf/E8-10522.pdf CONGRESS WORKING TO FIX THE ADAThe Americans with Disabilities Act (ADA) was heralded as a major means of preventing discrimination for persons with disabilities. The Courts have watered down its protections. In response, Congress is working on an amendment to the ADA. Contact your legislators to support it! The House Version is HR 3195. This bill will amend the ADA and Section 504 to ensure that the rights of adults and children with disabilities are protected. Please ask your Congressional Representatives to support H.R. 3195, the ADA Amendments Act of 2008. Call 202-224-3121 (TTY 202-225-1904) and ask for your Representativeʼs office. You can send an email and look up your Representative here: http://www.house.gov/writerep H.R. 3195 IS VERY IMPORTANT BECAUSE IT WILL RESTORE EMPLOYMENT RIGHTS UNDER THE ADA AND MAKE CLEAR THAT THE SAME LANGUAGE APPLIES TO SECTION 504 OF THE REHABILITATION ACT. First, the ADA Amendments Act of 2008 will protect youth with disabilities moving into the world of employment. Courts have wrongfully narrowed the ADA and held that people with epilepsy, diabetes, intellectual and developmental disabilities, muscular dystrophy, and cancer (among many others) are not eligible for the ADA ʼs protections. Studies show that plaintiffs lose 97% of ADA employment discrimination claims, mainly because they cannot meet the definitions of disability established by the Supreme Court. This is not what a bipartisan Congress intended when it passed the law. H.R. 3195 will overturn these decisions. H.R. 3195 will ensure that people with disabilities do not lose ADA eligibility simply because their condition can be addressed with assistive technology or helped by medication. It will ensure that employees are not discriminated against because of their actual or perceived impairments. It will make clear that the ADA protects people whose disabilities prevent or severely restrict them from doing activities of central importance to most peoples' lives. H.R. 3195 will thus correct the decisions in Sutton v. United Airlines, Toyota Motor Manufacturing v. Williams, and their companion cases. Second, H.R. 3195 will add simple conforming language applying the ADA Amendments Act of 2008 to Section 504 of the Rehabilitation Act. Since the ADA and Section 504 define disability similarly, the same amendments should apply to both. Children and young adults with disabilities in school deserve the same protections as adults seeking employment. When you talk or write to your Congressional representatives, it is important to make these points. H.R. 3195 will not change what most school districts are already doing to determine whether children with disabilities are entitled to 504 protections. But it will ensure that no child has the door to equal protection slammed by applying the old, outdated ADA case law to 504. H.R. 3195 will make clear that the small number of children who have inappropriately been denied 504 eligibility should receive it. MORE DETAILED INFORMATION ABOUT H.R. 3195 and Sec. 504 H.R. 3195 is only about ELIGIBILITY for the ADA and 504. This is a different issues from whether 504 plans are effective or inadequate. It is important today to protect the rights of children to be ELIGIBLE under 504, just as adults would be under the ADA. That is what H.R. 3195 will do. Please stay focused on this. No child should have the door to 504 eligibility slammed because of old, outdated ADA case law, that a bipartisan consensus agrees should be changed. H.R. 3195 will clarify that those children who have been inappropriately denied 504 coverage under outdated ADA-like theories are entitled to 504ʼs protections. This is a relatively small number of children, but it is crucial that they be protected. Still, it is important to emphasize that H.R. 3195 will not cause schools to face any major changes in determining IDEA eligibility. Most schools correctly find that children with a range of impairments are eligible for 504ʼs protections. In general, courts considering claims from students with disabilities have generally held that those children are eligible for 504, unlike the employment decisions. It is a myth to claim that H.R. 3195 will force school districts to accommodate large numbers of children that they would not otherwise. H.R. 3195 includes provisions to protect schools and employers against inappropriate disability claims. It is important to protect against discrimination, both in employment and at school. It appears that some school districts are unfortunately fighting the bill. The effect of excluding school districts is that some districts could begin in the future denying children with disabilities the same promise of equal protection and protection from discrimination under 504. This is wrong. Every child deserves to be free of discrimination. Please urge your Congressional Representatives to support H.R. 3195 and
keep America ʼs promise to people with disabilities: children and adults.
Equality of the law and justice will benefit all Americans. Congress introduces IDEA Fairness Restoration Act to reimburse parents for expert feesCouncil of Parent Attorneys and Advocates, Inc. Dear COPAAns, Today, Congressman Chris Van Hollen of Maryland and Congressman Pete Sessions of Texas introduced the IDEA Fairness Restoration Act. This bill, would allow prevailing parents to recoup their expert costs in litigation under the Individuals with Disabilities Education Act. The bill would restore Congress’ original intent in granting parents the ability to recover their attorneys’ fees and costs when they prevail in IDEA cases. Parents prevail in IDEA cases only when they show that the school district provided an education so inferior that it failed its legal obligations. But while they can recover their attorneys’ fees, they cannot recover their expert witness costs as a result of the Supreme Court’s decision in Arlington Central School District v. Murphy (2006). The IDEA Fairness Restoration Act would override the Supreme Court’s decision and help even the playing field for parents of children with disabilities. COPAA is grateful for the hard work and leadership of Congressman Van Hollen and Congressman Sessions on this bill. Congress included in the IDEA the right to a due process hearing because it recognized that parents needed an independent dispute resolution process to enforce their rights to a free appropriate public education for their children with disabilities. Expert testimony is often necessary in such cases. In 1986, Congress amended the IDEA to allow parents to recover their attorneys’ fees when they prevail in due process. This was necessary to reverse a Supreme Court decision forbidding such recovery. Congress amended the IDEA because it recognized that parents need lawyers and experts to exercise their right to due process. Congress knew that parents have substantially fewer resources than school districts and many cannot afford expert witness fees. Twenty-one years later, that reality still has not changed. Approximately 36% of children with disabilities live in families earning less than $25,000 a year; over 2/3 earn less than $50,000 a year. Few parents can afford the thousands of dollars needed to pay qualified medical, educational, and technical experts. While parents must hire expert witnesses to testify, school districts can use therapists, psychologists, and other expert witnesses on their own payroll. Approximately 7 million children with disabilities are currently covered by the IDEA. Nonetheless, parents proceed to litigation only as a last resort. In 2003, the GAO reported that there were only 5 hearings per 10,000 special education students. Parents should not be deprived of their right to due process for lack of resources. COPAA thanks Congressman Van Hollen and Congressman Sessions for introducing this very important legislation. We call upon COPAAns to contact their Congressional offices and urge support of the IDEA Fairness Restoration Act. It is important to send COPAA a copy of your letters and emails to Congress, so that we can show the strength of support for this legislation. There are four ways to do this:
After you contact your Congressional Representative, help your friends and family members write letters and make telephone calls, too! The IDEA Fairness Restoration Act goes far to remedy the gross imbalance of resources between parents and school districts. We thank Congressman Van Hollen and Congressman Sessions for their dedication to the rights of children with disabilities. While the bill does not deal with Schaffer v. Weast, COPAA will continue to work hard to seek an override of that decision about burden of proof. Meanwhile, we thank you in advance for your letters in support of the IDEA Fairness Restoration Act. Together, we can make an override of the Murphy decision a reality and protect children’s fundamental rights to a free appropriate public education. Thank you for your support and joining in our efforts, Jessica Butler Email: protectidea@copaa.org Added December 5, 2007 |