Rights Resurgence: the Impact of the Ada Amendments Act on Schools and Universities

• Jurisdiction: United States,Federal
• Publication year: 2010
• Citation: Vol. 25 No. 3

Georgia State University Law Review

Volume 25 j 7

Issue 3 Spring 2009

4-1-2009

Rights Resurgence: The Impact of the ADA Amendments Act on Schools and Universities

Wendy F. Hensel

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Recommended Citation

Hensel, Wendy F. (2008) "Rights Resur gence: The Impact of the ADA Amendments Act on Schools and Universities," Georgia State

University Law Review: Vol. 25: Iss. 3, Article 7.

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RIGHTS RESURGENCE: THE IMPACT OF THE ADA AMENDMENTS ACT ON SCHOOLS AND UNIVERSITIES

Wendy F. Hensel*

Few people would have predicted that 2008 would be the year disability rights made a comeback in the United States. For years, courts had taken an increasingly restrictive approach to defining disability under the Americans with Disabilities Act,¹ denying class membership to many who typically would be considered "disabled" within the common understanding of that term. Although attempts to amend the ADA had been made, none had yet gained sufficient political traction in the legislature. Many predicted more of the legal status quo, with few opportunities for plaintiffs to survive summary judgment.⁴

In this case, however, the conventional wisdom proved wrong. On September 25, 2008, President George W. Bush signed the unanimously enacted Americans with Disabilities Amendments Act (ADAAA)⁵ into law, "reinstating a broad scope of protection" to

* Associate Professor of Law, Georgia State University College of Law. The author would like to thank Paul Lombardo, Mark Weber and Rob Garda for their very helpful comments on earlier drafts of this article.

1. 42 U.S.C. § 12102(2) (2006).

2. See, e.g., Littleton v. Wal-Mart Stores, Inc., No. 05-12770, 2007 WL 1379986, at *2 (11th Cir. May 11, 2007) (mental retardation); Orr v. Wal-Mart Stores, Inc., 297 F.3d 720, 724 (8th Cir. 2002) (diabetes); Pimental v. Dartmouth-Hitchcock Clinic, 236 F. Supp. 2d 177, 184 (D.N.H. 2002) (cancer); Todd v. Academy Corp., 57 F. Supp. 2d 448, 452 (S.D. Tex. 1999) (epilepsy).

3. See, e.g., ADA Restoration Act of 2007, H.R. 3195, 110th Cong. § 4 (2007); Americans with Disabilities Act Restoration Act of 2006, H.R. 6258, 109th Cong. § 3 (2006). For a general discussion of the political climate in which these bills were introduced, see, for example, Jill C. Anderson, Just Semantics: The Lost Readings of the Americans with Disabilities Act, 117 Yale L.J. 992, 996-97 (2008); Samuel R. Bagenstos, The New Congress and the ADA, Disability Law Blog, http://disabilitylaw.blogspot.com/2006_11_01_archive.html (Nov. 29, 2006, 09:29 EST).

4. See, e.g., Alex B. Long, Introducing the New and Improved Americans with Disabilities Act: Assessing the ADA Amendments Act of2008, 103 Nw. U. L. Rev. Colloquy 217, 229 (2008) (noting "the skepticism of some (myself included) that Congress would enact any meaningful changes to the ADA in the near term"). See also John W. Parry, 1999 Employment Decisions Under the ADA Title I-Survey Update, 24 Mental & Physical Disability L. Rep. 348, 348 (2000) (study finding that employers win 95.7% of ADA Title I cases at the federal appellate level).

5. ADA Amendments Act of 2008, Pub. L. No.110-325, 122 Stat. 3553.

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people with disabilities.⁶ As a result of this largely unanticipated development, there is a renewed sense of hope and optimism among people with disabilities and their advocates that has long been absent.

With change, however, comes uncertainty and concerns with legal compliance. The Amendments, which became effective on January 1, 2009, unquestionably will impact the field of education both with respect to employment and the eligibility and accommodation of K-12 and university students with disabilities. Although it is difficult in the early days of legislation to predict the nuances that ultimately will materialize in the law, this Article provides an early look at the emerging legal issues for schools and universities occasioned by passage of the ADAAA. Part I provides a brief general overview of judicial interpretation of the disability definition prior to the enactment of the Amendments. Part II evaluates the revised law, exploring the specific provisions of the statute that have changed and the public impetus behind these changes. Finally, Part III explores the Amendments' likely impact on schools and universities, highlighting issues that will require further discussion in the future.

I. The Original ADA: Judicial Backlash

When Congress passed the original Americans with Disabilities Act in 1990, disability advocates hailed the legislation as a substantial step towards ending discrimination against the millions of Americans who will experience physical or mental impairments

6. See id. § 2(b)(1).

7. See, e.g., CHADD, President Signs ADA Amendments Act Into Law, http://www.chadd.org/AM/Template.cfm?Section=Press_Releases1&TEMPLATE=/CM/HTMLDisplay .cfm&CONTENTID=7522 (last visited Mar. 8, 2009) (calling the ADAAA's passage "a huge victory" and "historic"); and Posting of Advocacy to NAD Advocacy Blog, http://blogs.nad.org/advocacy/2008/ 09/25/nad-celebrates-as-%E2%80%9Cada-amendments-act%E2%80%9D-becomes-law/ (Sept. 25,

2008).

8. ADA Amendments Act of 2008, Pub. L. No.110-325, § 8, 122 Stat. 3553.

2009] IMPACT OF ADA AMENDMENTS ACT 643

during their lifetime.⁹ Few anticipated that significant judicial resistance to the legislation would quickly curtail its effectiveness.

Because disability is a social construct defined by law rather than an immutable characteristic,¹⁰ the legal definition of disability determines coverage under the statute. Changes in the definition or the interpretation of its foundational components can significantly expand or contract the class protected by law. The ADA defines disability as a physical or mental impairment that substantially limits a major life activity.¹¹ Plaintiffs who can establish that they have an actual disability, a record of disability, or are regarded as having a

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disability all fall within the law's anti-discrimination mandate. The following discussion briefly considers the judicial and regulatory treatment of these terms that set the stage for the Amendments. Although much of this discussion relates to the treatment of disability in an employment context, it is equally applicable to school and university obligations under Titles II and III because all sections of

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the ADA rely on the same statutory definition of disability.

A. Questionable Regulatory Authority

Congress gave authority to three federal agencies to promulgate regulations under the ADA: the Equal Employment Opportunity Commission (EEOC) (Title I); the Department of Justice (DOJ)

9. See, e.g., Susan Stefan, Delusions of Rights: Americans with Psychiatric Disabilities, Employment Discrimination and the Americans with Disabilities Act, 52 Ala. L. Rev. 271, 271 (2000) ("When President Bush signed the Americans with Disabilities Act in the Rose Garden among hundreds of people with disabilities, the mood was one of tremendous hope and triumph.").

10. See, e.g., Wendy F. Hensel, The Disability Dilemma: A Skeptical Bench & Bar, 69 U. Pitt. L. Rev. 637, 641-42 (2008) (explaining the social model of disability).

11. 42 U.S.C § 12102(2)(A) (2006).

12. 42 U.S.C § 12102(2)(A)-(C) (2006); 29 C.F.R. § 1630.2(g)(1)-(3) (2008). Individuals challenging the legality of medical inquiries and examinations under the ADA do not need to establish that they are disabled within the meaning of the law. 42 U.S.C § 12112(d) (2006).

13. 42 U.S.C. § 12102(2) (2006). It is worth noting, however, that some scholars have challenged the extent to which Title I cases and theory are applicable to Titles II and III. See, e.g., Michael Waterstone, The Untold Story of the Rest of the Americans with Disabilities Act, 58 Vand. L. Rev. 1807, 1810 (2005) (finding that "Title II and III cases have had more pro-plaintiff results than Title I" cases and concluding "the Title I explanation and suggestions [by scholars] are to varying degrees incomplete or inaccurate when applied to the ADA's non-employment Titles").

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(Titles II & III); and the Department of Transportation (DOT) (transportation services under Titles II & III).¹⁴ Each of these agencies has issued regulations interpreting the definition of disability.¹⁵ Pursuant to the Administrative Procedure Act, these regulations would ordinarily be entitled to deference by courts, provided that the agencies followed the appropriate procedures in adopting them and the agency's interpretation constituted a reasonable exercise of the delegated authority.¹⁶ The Supreme Court, however, called the EEOC's authority to promulgate such regulations

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into question in Sutton v. United Airlines, Inc., because the definition of disability is located in the General Provisions section of

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the ADA rather than in any of the subsequent Titles. Because Congress gave no agency the authority to promulgate regulations relating to the General Provisions, the Court voiced skepticism that the regulations were entitled to any deference by the courts.¹⁹

Despite its misgivings, the Supreme Court never definitely determined what weight to give to the regulations because the parties

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in Sutton did not dispute their legitimacy. In subsequent decisions, however, the Court defined "substantial limitation" and "major life activity" in ways that seemingly conflicted with EEOC regulations,

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establishing more exacting standards for plaintiffs. Although the impact of the Court's skepticism has been...