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Disability Inclusive Grantmaking is the mission of DFN: inclusion of disability in grantmaking programs and inclusion of people with disabilities in grantmaking organizations.

DFN E-News: Vol. 3, No. 4

Contents

DFN News

DFN Makes Its Mark on the Council on Foundations Annual Conference in Toronto

DFN‘s reception at the Council on Foundations (COF) 2004 Annual Conference drew an overflow crowd made up of DFN members, other grantmakers and a broad crosssection of Toronto’s disability community. The opening highlight was the presentation of second annual William Diaz Impact Award to Gloria Rubio-Cortes, chief operating officer of the Community Technology Foundation of California (CTFC). DFN chair Sylvia Clark presented a $500 check and a plaque to Ms. Rubio-Cortes, noting that “for more than 20 years, Ms. Rubio-Cortes has promoted civil rights, community building, civic engagement and social justice.”

“In the tradition of Bill Diaz, Gloria educates other technology funders and social justice funders about disability access and cultural competence,” said Clark. “Her work demonstrates that promoting access and inclusion across all of its work is not only possible but also true to an organization’s core values.” Clark explained that the award honors the memory of Bill Diaz, former member of the DFN board, the first Latino program director at The Ford Foundation, a founding director of the Puerto Rico Community Foundation, a director of the Council on Foundations and a Senior Fellow at the University of Minnesota’s Hubert H. Humphrey Institute of Public Affairs. At the request of Bill Diaz’s family, DFN’s recognition of his impact on disability funding is being used to further the mission of DFN to expand and enhance the philanthropic world’s support of disability issues.

After the award, Deborah Kaplan, executive director of the World Institute on Disability (WID) and an expert in disability and technology, hosted a screening of highlights from Freedom Machines, a new film scheduled for fall 2004 broadcast on Public Television’s P.O.V. The screening featured the use of assistive technology in the educational arena and raised disturbing questions — such as why educators and other to whom people turn for information so often have inadequate and outdated knowledge — and offered tangible solutions. After the film there was a discussion of grantmakers and Canadian nonprofits on how technology can fulfill the promise of inclusive education and independent living and how grantmakers, schools and nonprofits can help to get technology into the hands of those who need it.

DFN’s session, co-designed by the Neighborhood Funders Group, drew another large audience. The session, “Building Assets for All: Including Marginalized Populations in Financial Literacy & Home Ownership,” featured speakers from nationally recognized asset building projects that have actively included people with disabilities. Attendees learned about promising programs and policy efforts underway that are helping people with disabilities develop assets and how foundations can incorporate people with disabilities into their existing funding strategies. The session was moderated by Deborah Kaplan of WID, which has a national project on asset building for people with disabilities. Robert Friedman, board chair of the Corporation for Enterprise Development, and Sharon Drake, program director of the New Hampshire Community Loan Fund, talked about how their programs incorporate people with disabilities, and Mary Jo Mullen, vice president of programs for the Heron Foundation, discussed how the foundation came to view people with disabilities as an important part of their asset development funding strategy.

[For more information on the Diaz Award, see DFN News and Awards.]

National Disability News

Supreme Court Upholds ADA in Tennessee v. Lane

On the 50th anniversary of Brown v. Board of Education, the U.S. Supreme Court upheld the rights of Americans with disabilities to sue states for lack of accessibility to courts. It was a narrow decision, both in terms of the split of the justices (5-4) and that it applied only to this particular case and not Title II of the Americans with Disabilities Act (ADA) in general. In recent cases, the court has repeatedly ruled in favor of states’ rights over disability rights.

At issue in Lane’s case was the right of private citizens to pursue alleged violations of the ADA in federal courts. The case began when Lane tried to sue the state of Tennessee for what he claimed was humiliating treatment that violated the ADA. Lane, a wheelchair user, arrived at the Polk County Courthouse for an appearance in a traffic violation case. Lane’s case was being heard in a courtroom on the second floor, and there was no elevator. Lane crawled up two flights of stairs, but his case was not heard during the morning session. At the lunch break he crawled back downstairs. That afternoon, when he refused to crawl upstairs again and refused to be carried up the stairs, he was arrested and put in jail for failing to appear.

Tennessee did not dispute that the courthouse was not accessible or that the state has a duty to make its services available to all. However, the state argued that Congress illegally violated the states’ 11th Amendment protections by saying that the states could be sued for failure to comply with the ADA — thus holding that Lane did not have the right to sue Tennessee in this case.

A New York Times article on the case explains: “As interpreted in recent decisions, the 11th Amendment to the Constitution ordinarily bars private lawsuits against states in federal court unless Congress has acted within its own authority to abrogate that immunity. Further, the court has ruled, Congress can validly take that step only in the exercise of its power to enforce the equal-protection and due-process guarantees of the 14th Amendment, and only then as a “congruent and proportional” response to official failure to enforce those guarantees. So the record of past lapses has become crucial. In a 5-to-4 ruling in 2001, the court held that Congress had lacked a basis of permitting states to be sued under Title I of the disability law, which applies to state employment.

Justice John Paul Stevens stated that Congress had ample evidence of discrimination when it wrote Title II of the ADA, which guarantees access to government services for people with disabilities. Writing for himself and Justices Sandra Day O’Connor, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, Justice Stevens wrote, “The unequal treatment of disabled persons in the administration of judicial services has a long history” that has persisted despite anti-discrimination laws. “It is not difficult to perceive the harm that Title II is designed to address. Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights.”

In dissent, Justice William H. Rehnquist wrote that much of the evidence Congress used in developing Title II was irrelevant and insufficient. Moreover, he said, the inaccessibility of a courthouse isn’t necessarily a constitutional violation. “We have never held that a person has a constitutional right to make his way into a courtroom without any external assistance,” he said.

Justice Antonin Scalia’s dissent attacked the court’s attempts to broaden the definition of congressional enforcement of the 14th Amendment (one of the “Civil War Amendments”) guaranteeing equal protection. “Requiring access for disabled persons to all public buildings cannot remotely be considered a means of ‘enforcing’ the Fourteenth Amendment,” Scalia wrote. “The considerations of long accepted practice and of policy that sanctioned such distortion of language where state racial discrimination is at issue do not apply in this field of social policy far removed from the principal object of the Civil War Amendments.”

[Adapted from an Associated Press May 17 article by Anne Gearan, a May 18 New York Times story by Linda Greenhouse, a Los Angeles Times article by David G. Savage, and a Knight Ridder May 17 article by Stephen Henderson.]

The following DFN members were among the 37 organizations that filed briefs in support of George Lane and others in this case: ADA Watch/National Coalition for Disability Rights (NCDR), American Association of People with Disabilities, Blanche Fisher Foundation, and National Organization on Disability.

On May 30, The New York Times Magazine featured an essay on the Tennessee v. Lane decision written by Harriet McBryde Johnson, an attorney and disability rights advocate who has written previous feature articles for the magazine. See the appendix to this issue for the full text of the essay, “Stairway to Justice.”

IDEA Passes in the Senate

On May 13, the Senate voted 95-3 to renew and update the Individuals with Disabilities Education Act (IDEA). Senators Patrick Leahy (D-VT) and James Jeffords (I-VT) opposed the bill (S. 1248) because it failed to provide a mechanism for mandatory full funding. Senator Debbie Stabenow (D-MI) also voted against passage.

Parent, education and disability advocacy groups largely supported the Senate bill despite concerns over some of its key provisions. Senator Edward Kennedy (D-MA) stated that over the course of the reauthorization, he received thousands of letters from parents about their children’s educational experiences. “It’s our statement as a nation that these children matter, and that we will do our part to help their parents, teachers and communities meet their education goals,” he said.

The Senate bill strives to improve the early identification of children with special needs, encourages mediation in disputes between parents and schools, reduces paperwork for teachers and gives the education secretary more power to hold states accountable. The bill tries to give teachers more classroom control by allowing children with special needs to be disciplined like other students, provided their misconduct is not a result of their disability. Fifteen states will participate in pilot demonstration projects to reduce the amount of paperwork associated with special education. However states may not waive civil rights protections and the paperwork reductions may not impair the right of a child to receive a free appropriate public education or infringe upon any procedural safeguards.

The main point of contention was over funding. When the law was first passed, Congress promised to cover 40 percent of the cost. The actual federal share is 18.6 percent. States and school districts must pay for whatever expenses the Congress does not, which amounts to billions of dollars that local communities need for teachers, training, supplies and construction. Senators overwhelmingly agreed to allow accelerated spending in coming years but rejected an attempt to make the increases mandatory. Senators Tom Harkin (D-IA) and Chuck Hagel (R-NE) proposed mandatory spending increases so the federal share of the bill would reach 40 percent in six years. That effort fell short.

On June 3, parents and advocates across the country began a campaign to prevent the harmful provisions of the House and Senate reauthorization bills from becoming law. The next step in the legislative process is for the bills to go to a conference committee where they will be negotiated into single piece of legislation

[Adapted from an Associated Press article, 5/13/04; a DREDF press release, 5/13/04; a Justice-For-All e-mail news bulletin, 5/13/04; and a National Down Syndrome Society Action Alert, 6/3/04.]

Senate Finance Committee Examines Medicare’s Power Wheelchair Benefit

The Senate Finance Committee recently held a hearing on fraud and abuse in the Medicare system’s power wheelchair benefit. Chairman Charles E. Grassley (R-IA) opened the hearing by citing reports released by the General Accounting Office (GAO) and the Office of the Inspector General (OIG) at the Department of Health and Human Services (HHS). The OIG report states that only about 13 percent of Medicare’s power wheelchair claims for the most common model (K-11) meet the specific benefit criteria, and approximately 33 percent of Medicare claims did not meet the criteria for any type of wheelchair. The OIG estimates that Medicare has spent $1.2 billion in 2003 for power wheelchairs (with a total increase of about 450 percent in the last four years).

During the hearing, Herbert Kuhn, director of the Center for Medicare Management, CMS, stated that his agency would focus on combating fraud and abuse and controlling current waste in the Medicare system. With the help of physicians and other professionals, CMS plans to develop new coverage guidelines that clearly outline eligibility requirements. It plans to revamp billing codes to distinguish between different types and price levels associated with various K-11 power wheelchairs — currently all are grouped under one billing code — and initiate competitive bidding authorized by the new Medicare Law.

Henry Claypool, co-director of Advancing Independence and a K-11 wheelchair consumer, testified that even though there is widespread abuse, the ambiguity and restrictive nature of the current policy denies access to power wheelchairs for many needy recipients. Claypool cited Medicare’s current “in the home” coverage criteria, which provides power wheelchairs only to individuals who need them to move about the “four walls of their home” and not in the community, school or workplace. Claypool reminded CMS that the term “in the home” was created when Medicare Part B began to cover durable medical equipment and wanted to differentiate between equipment used by the patient in a hospital and equipment used in the individual’s home. Claypool encouraged CMS to develop clear coverage criteria that values the functionality and independence of people with disabilities and complements other current policies such as Chairman Grassley’s Ticket-to-Work program.

[Adapted from a Justice-For-All e-mail news bulletin, 5/3/04.]

Senate Passes Family Opportunity Act

On Thursday, May 6, the Senate passed the Family Opportunity Act, a Grassley-Kennedy-Baucus bill (S 622) to amend title XIX of the Social Security Act to provide families with disabled children the opportunity to purchase coverage under the Medicaid program. The bill expands Medicaid coverage and allows middle-income families with annual incomes up to 250 percent of the federal poverty level, or $47,125 for a family of four, to buy into Medicaid for their children with disabilities.

Medicaid offers more comprehensive benefits than most private health plans, and supporters of the bill say that families with disabled children are often forced to limit their income to maintain Medicaid eligibility. Under the bill families would be charged premiums for Medicaid coverage on a sliding scale. Private insurance and Medicaid premiums combined could not exceed 7.5 percent of family income. Information centers will be established to help families obtain information about services and programs available to them.

The bill will cost approximately $7 billion over 10 years, and a House companion measure (HR 1811) sponsored by Rep. Pete Sessions (R-TX) may face strong opposition among fiscal conservatives. June 1 was the “National Call-In Day” for advocates to urge their representatives to pass the House companion measure.

[Adapted from the Kaiser Daily Health Policy Report, 5/7/04, and Justice-For-All e-mail news bulletins, 5/6/04 and 5/31/04.]

The National Coalition for Disability Rights Launches National Disability Tour

The National Coalition for Disability Rights (NCDR), working with nonprofit event organizer Active Music, will launch the National Disability Rights Tour in July with a benefit concert and other events scheduled in Boston during the week of the Democratic National Convention. Disability advocates hope to re-ignite the same grassroots support that was critical to the passage of the Americans with Disabilities Act (ADA) in 1990. The nationwide tour will mark the anniversary of the ADA and protest recent court and legislative decisions, which threaten this important civil rights legislation.

“People with disabilities need to understand the law and how their rights emanate from it,” said Nancy Starnes, vice president of the National Organization on Disability. “People think they have ADA and it’s a done deal,” says NCDR President and Founder Jim Ward. “We know that isn’t the case.”

Other major events will be held in Atlanta, Chicago, Dallas, Los Angeles and New York (during the week of the Republican National Convention in Manhattan). Smaller events will be scheduled in other areas around the country. The tour will conclude the following year in Washington on the ADA’s 15th anniversary.

[Adapted from a Disability Funding News E-Mail Alert 5/4/04.]

Appendix

Stairway to Justice: New York Times Magazine Essay on Tennessee v. Lane by Harriet McBryde Johnson

May 30, 2004: The Way We Live Now
Stairway to Justice
By Harriet McBryde Johnson

Monday, May 17, was an interesting day for civil rights. As the first same-sex marriages were performed in Massachusetts and people everywhere observed the 50th anniversary of Brown v. Board of Education, the U.S. Supreme Court delivered another important civil rights victory in Tennessee v. Lane. However, unlike Brown, the new ruling was a squeaker — 5 to 4 — and its terms conspicuously grudging and circumscribed. People with disabilities count it as a victory when rights simply aren’t rolled back as far as they might have been.

The legal question in Lane was whether Congress had authority under the equal protection clause to enact Title II of the Americans With Disabilities Act and ban discrimination based on disability by state governments. To make this mandate real, governments must make their programs accessible by removing architectural barriers or by other reasonable modifications, like relocating services to other facilities.

The facts in Lane involved access to courthouses. One paraplegic plaintiff had to leave his chair and crawl up two flights of stairs to get to his own hearing; after the court recessed for lunch without reaching his case, he declined to make the climb again or to be carried up the stairs, and was arrested and jailed for failure to appear. The second plaintiff, a court reporter who uses a wheelchair, can’t work in a number of courtrooms because of architectural barriers.

As a lawyer in a power wheelchair, I cannot take access for granted. I cannot even assume others have a basic comprehension of how I move around in the world. Because I cannot walk, crawl or safely be carried, even one step keeps me out as surely as would a sign saying “No cripples allowed.” People often offer to carry me, as if the offer itself discharges any duty to remove the unnecessary barriers in my way. When I decline to be carried, I am made to feel ungracious. Beyond that, I am rendered unable to do for myself and my community.

In light of such compelling facts, it seems hard to imagine how anyone could deny the plaintiffs a day in court. The issue should be what to do about the problem, not whether these plaintiffs have a right to be heard under the Americans With Disabilities Act. However, in 2001 the Supreme Court ruled that states may not be sued under the ADA for money damages for employment discrimination — regardless of the facts. That ruling raised the question of whether victims of disability discrimination may invoke the law when the aim is not to get money but to require states to provide access. In Lane, the court ruled yes, but only because another federal constitutional right — access to the courts — was at stake.

Associate Justice John Paul Stevens wrote for the majority: “Congress enacted Title II against a backdrop of pervasive unequal treatment in the administration of state services and programs, including systematic deprivations of fundamental rights.” The court noted a history of discrimination in such areas as voting, jury service, institutional conditions, public education, unreasonable zoning decisions and “a pattern of unconstitutional treatment in the administration of justice.” In a concurring opinion, Associate Justice David H. Souter pointed out that the history is even worse: courts themselves have promoted invidious discrimination. He wrote, “In sustaining the application of Title II today, the court takes a welcome step away from the judiciary’s prior endorsement of blunt instruments imposing legal handicaps.”

It is a step, and a welcome one. When a state’s refusal to accommodate interferes with some fundamental right, the ADA provides a vehicle to deal with it. A contrary decision would have been devastating. Had Title II been overruled, for example, the disability rights movement would have lost a key tool in its quest for a world in which states no longer require institutional confinement as a condition for receiving long-term care. But what if the issue is not freedom from lockup or access to a courthouse, polling place or public school? What if it’s about access to a state-run museum exhibit or concert? In such a case, the current court might not allow an ADA suit against a state, no matter how simple the remedy or how unreasonable the conduct.

The Supreme Court majority apparently sees no equal protection violation in the states’ routine exclusion of people with disabilities from services that other people take for granted. Three of the dissenters would go so far as to deny that inaccessibility precludes access. Apparently expecting people with disabilities to be carried up stairs, Chief Justice William H. Rehnquist, joined by Associate Justices Clarence Thomas and Anthony M. Kennedy, wrote, “We have never held that a person has a constitutional right to make his way into a courtroom without any external assistance.”

Statements like that illustrate the continuing gulf between the reality of disabled lives and others’ understanding, a gulf that is the natural consequence of the years of isolation and exclusion that the ADA targets. While I rejoice that Charleston’s state and federal courthouses have now been made accessible, other places remain inaccessible.

For many decades, long flights of stairs made statements about the grandeur and power of the law. They reflected prevailing assumptions about the abilities of the people who would be participating in public life. By design, they were humbling, even disempowering. Ramps, elevators and appropriate use of government spaces have the opposite effect. For people with disabilities, it is impossible to conceptualize equal protection of the law without them.
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