May 28, 2009
The Bazelon Center for Mental Health Law has provided a valuable service by producing a Preliminary Review of Disability Cases of Judge Sonia Sotomayor. That review provides a fairly in depth analysis of Judge Sotomayor's decisions in disability cases. The review identifies twenty eight cases involving disability law and, if you’re just keeping score, Judge Sotomayor decided in favor of the person with a disability in twenty of the twenty eight. The cases listed include cases involving the Americans with Disabilities Act (ADA), Section 504, the Individuals with Disabilities Education Act (IDEA), Social Security, Medicaid, and Protection and Advocacy System access to schools to monitor seclusion and restraint.
A few cases are of particular note.
Judge Sotomayor dissented from the other judges holding in EEOC v. J.B. Hunt Transportation, Inc., 321 F. 3d 69 (2d Cir. 2003) that the plaintiffs, applicants for truck driving jobs, did not have disabilities. The case was brought under the ADA by truck driving applicants who were denied jobs based on their use of certain disability related prescription medications. The majority of the court ruled that though the applicants were denied the jobs because they were perceived as unsuitable to be over-the-road truck drivers, they were not perceived as having disabilities. The majority judges did not connect the link between being denied a job due to the use of disability related prescription medication and being denied the job due to having a disability. Judge Sotomayor disagreed: “Thus, the EEOC has provided sufficient evidence that a fact finder could reasonably conclude that Hunt regarded the rejected applicants as substantially limited in the major life activity of working, because Hunt regarded them as unfit to be truck drivers.”
In Bartlett v New York State Bd. of Law Examiners, 970 F. Supp. 1094 (S.D.N.Y. 1997), while in federal district court Judge Sotomayor ruled in favor of a law license applicant with a learning disability. Due to having a learning disability, the applicant had difficulty reading and requested accommodations such as extra time on the bar exam. The accommodations were denied because the examiners did not believe she was limited in the major life activities of reading or working. Judge Sotomayor determined Ms. Bartlett was limited in the major life activity of working eloquently stating:
“For those of us for whom words sing, sentences paint pictures, and paragraphs create panoramic views of the world, the inability to identify and process words with ease would be crippling. Plaintiff, an obviously intelligent, highly articulate individual reads slowly, haltingly, and laboriously. She simply does not read in the manner of an average person. I reject the basic premise of defendants' experts that a learning disability in reading can be identified solely by a person's inability to decode, i.e., identify words, as measured by standardized tests, and I accept instead the basic premise of plaintiff's experts that a learning disability in reading has to be identified in the context of an individual's total processing difficulties.”
Judge Sotomayor ruled Ms. Bartlett was entitled, under the ADA, to the accommodations on the bar examination.
In, Frank G. v. Board of Education of Hyde Park, 459 F.3d 356 (2d Cir. 2006), an IDEA case I discussed in a previous posting, Judge Sotomayor agreed with the Second Circuit panel that the parents’ unilateral placement of their child in a private school was appropriate. The parents were entitled to tuition reimbursement and they were not required to keep their child in a public school placement until it was clear that the child had actually failed and a year wasted. This is similar to the issue in the Forest Grove case recently heard by the Supreme Court but, as yet, undecided.
Finally, in Connecticut Office of Protection & Advocacy v. Hartford Bd. of Education, 464 F.3d 229 (2d Cir.2006), Judge Sotomayor wrote an opinion granting Protection and Advocacy (P&A) Systems for Persons with Mental Illness, like my agency, access to school programs to monitor abuse and neglect of students. The Connecticut P&A System had received complaints that students at a public school had been subjected to the inappropriate use of physical restraint and seclusion at school. Federal law authorizes P&A Systems to have access to programs providing disability services to investigate complaints of abuse and neglect of persons with mental illness and other disabilities. Judge Sotomayor’s decision clarified that since the schools provide a therapeutic educational program to students with emotional disabilities; the P&A has access to that program and has access to the contact information of parents or guardians of the students in the program. The benefits of granting P&A access to schools can be seen in the recent NDRN report regarding the inappropriate use of seclusion and restraint in schools. This report was based on the investigative work in public schools of P&As throughout the country.
To be sure, Judge Sonia Sotomayor has not always ruled in favor of the person with a disability in the case before her. Cases should not be decided based on the disability or other status of the litigants. Cases are decided by determining the facts and applying and interpreting the law to the facts. Frankly, I was very moved by her eloquence in the Bartlett decision determining that reading as a life skill:
“For those of us for whom words sing, sentences paint pictures, and paragraphs create panoramic views of the world, the inability to identify and process words with ease would be crippling. Plaintiff, an obviously intelligent, highly articulate individual reads slowly, haltingly, and laboriously.”
Based on these words and the analysis provided by the Bazelon Center, I believe Judge Sotomayor will be a fine Supreme Court Justice.
