HOW TO HELP

Financial Literacy Classes

The third series of classes will begin in April. Participants will learn how to make decisions about spending their money, to make hard decisions between what they need and what they want, between flexible costs and hard costs, to make a budget allowing them to live within their means. They will also learn about savings programs that will match their savings to enable them to make a down payment on a home.

Participants who attend every one of the ten classes during the five-week course will receive a free monthly transit pass on CTA or Metra. Attendees will receive certificates at a closing ceremony.

Call Charito at the CDR office as soon as possible to enroll in the class as class size is limited.

Employment Services: If you are looking for a job or have a Ticket To Work, please call Dorie Stewart at the CDR office. She will explain the employment services we offer and get you started with our agency. Or she may refer you to another agency that provides similar services, but has additional expertise in your particular disability. If you want guidance about a career choice or need information about how a paycheck will affect your benefits, Dorie can also get you hooked up with a counselor so that we can provide services to you. Please call us and let us help you find a job.

Housing Packet: Our new packet of information about housing will be available this month for a small cost of $3. Those readers who have already called should have received their copy by now. The packet includes a list of housing provided by IDHA and CHA, a list of affordable rental units (some of which are wheelchair accessible), information about housing rights (federal and local), a list of emergency transitional housing units, etc.

Gargoyle Banquet: We will mail nomination applications; please call the office. Awards are Winged Gargoyle for Lifetime Achievement, Razzberry Gargoyle for Self Advocacy, Gnawing Gargoyle for Public Policy, Crane Gargoyle for Unique Achievement, Hooded Gargoyle for a Young Professional, and Dragon Gargoyle for Child Advocacy. Save the date Friday, September 12th.

Supreme Court Considers State-level Application in Nevada Case

By Linda Greenhouse

WASHINGTON, Jan 11 — Eight years into the Rehnquist court’s federalism revolution, it is almost routine for the new year to bring a new Supreme Court test of the limits of federal authority over the states. But there is nothing routine about the federalism case the justices will hear on Wednesday, potentially the most important of the half-dozen cases so far in which the court has shielded the states from the full reach of federal law.

The new case, an appeal by the State of Nevada seeking immunity from suit under the Family and Medical Leave Act (FMLA), on the surface resembles others in a series of increasingly caustic 5-to-4 rulings. In 2000, for example, it held that employees could not sue states for violating the federal law against age discrimination. The next year, it ruled that states were immune from employment discrimination suits under the Americans with Disabilities Act.

Now the question is whether state employees can sue for damages under the FMLA’s family leave provision, which gives both men and women the right to take up to 12 weeks off without pay to care for a seriously ill family member. A Nevada state worker, William Hibbs, sued the state after being denied the full 12 weeks he requested to care for his ailing wife.

There is no doubt that Congress meant the 1993 law to apply to state employers. Congress included language that explicitly removed the immunity from private damage suits that the states would otherwise enjoy under the 11th Amendment, which bars suits in federal court against states that have not given their consent to be sued. As in the earlier cases, the constitutional question is whether Congress acted within the scope of its authority when it removed the states’ 11th Amendment shield.

The recent precedents have made this a very complex conceptual issue and a heavily freighted one in terms of the relationship between the court and Congress. Through a series of incremental and highly technical decisions, the court has placed Congress in an increasingly tight vise.

The question now is whether in the new case, Nevada Dept. of Human Resources v. Hibbs, No. 01-1368, the court will put a stranglehold on the ability of Congress to pursue its own constitutional vision. For that reason the case has drawn enormous attention not only from civil rights organizations but also from dozens of current and past members of Congress, who signed a brief arguing that Congress acted within the core of its constitutional authority in applying the family leave requirements to the states. In its brief on behalf of Congress, the Bush administration says the implications of a ruling in favor of state immunity would be disturbing the civil rights enforcement generally.

The basis for that assessment lies in the route the court has taken to reach this point. Decisions in the late 1990’s held that Congress lacked authority to abrogate the states’ immunity when acting within its ordinary power to regulate interstate commerce, the basis for most federal legislation.

Those cases did not shut the door completely. They left one potential source of Congressional power over the 11th Amendment: Section 5 of the 14th Amendment which gives Congress authority to “enforce, by appropriate legislation” the amendment’s twin guarantees of equal protection and due process.

Both age discrimination and disability discrimination implicate equal protection, and the defense of Congress’ application of the Age Discrimination in Employment Act and the Americans with Disabilities Act to the states was that Section 5 empowered Congress to act. But in Kimel v. Florida Board of Regents, the age case, and Board of Trustees of the University of Alabama v. Garrett, the disability case, the court rebuffed the argument.

The 5-to-4 majority in both cases gave several reasons for its disapproval, essentially concluding that Congress had not come up with enough evidence of unconstitutional discrimination by state employers and so could not justify opening the states to lawsuits by their employees. The legislation was not “appropriate” under Section 5, the court held.

But the FMLA is different, or at least that is the argument of its defenders. It was passed, after eight years of debate and two presidential vetoes, in an effort to combat the lingering effects of sex discrimination in the workplace by creating a level playing field where the duties of providing care at home were no longer “women’s work” that made women less reliable, and therefore less desirable, as employees. …

Under the Supreme Court’s equal protection doctrine, sex discrimination is in a separate category from age and disability discrimination. Official policies that treat people differently on the basis of age, disability, income and unless the court says otherwise in a case that is currently pending sexual orientation are presumed to be constitutional, as long as the government presents a “rational basis” for their defense. But sex and race discrimination are presumed to be unconstitutional. Further, Congressional measures to prevent or cure these types of discrimination have traditionally received the court’s deference, even if the justices would not themselves have defined the problem as Congress did or designed the remedy it chose.

That history of deference, and of constitutional interpretation as an enterprise to be shared between the court and Congress, is now at stake. The implications are both practical and symbolic. The practical impact would be felt by the 4.8 million people who work for state governments. If the states win, there would be no direct impact on private-sector workers. Even if the court finds that the FMLA is not valid under Section 5 of the 14th Amendment, the law would remain unquestionably valid as legislation under the Commerce Clause, binding on private employers.

But a ruling that the act was not “appropriate” 14th Amendment legislation would entail the court’s rejection of Congress’ vision of what equal protection means. It would import into the core constitutional area of civil rights enforcement the muscular approach to judicial review displayed in recent cases: that the Constitution is only what the Supreme Court says it is.

To hold that civil rights laws could be justified only as economic measures under the Commerce Clause, rather than the Equal Protection Clause, “would be a huge symbolic turn in American politics,” Prof. Robert C Post of the Univ. of California at Berkeley said in an interview.

The states are of two minds about the case. Fourteen have joined Nevada’s brief, while Connecticut and others have joined a brief filed by New York’s attorney general Eliot Spitzer, in defense of the law. Nevada maintains that the application of the law would be nothing less than a constitutional insult.

Source: The New York Times, 1/12/03.

Family and Medical Leave Act Debated in Major Federalism Case

By Linda Greenhouse

WASHINGTON, Jan.15 — Listening to the Supreme Court argument in the term’s major federalism case today resembled nothing so much as eavesdropping on one hour of a year-long conversation. People spoke in a shorthand that rendered complex constitutional concepts into a kind of code. Shared history was taken as a given. Premises were assumed, not stated.

At the end of the hour, it was evident that all the participants knew the full import of the question: whether Congress acted within its constitutional power when it applied the Family and Medical Leave Act (FMLA) to the states and authorized state employees to sue states for damages for failing to give them the required 12-week unpaid leave to care for a seriously ill family member.

But it was much less clear whether the court was likely to shift course from a series of interrelated decisions immunizing the states from the full reach of federal law. Only one member of the consistent 5-to-4 majority in those cases, Justice Sandra Day O’Connor, offered a hint that she saw this case as perhaps different in a significant way. …

Supporters of the family leave provision describe it as an effort to overcome stereotyped assumptions in the workplace about the roles of men and women, with women assumed to be the employees who will take time off for family emergencies. By requiring employers to grant up to 12 weeks of unpaid leave for both male and female employees, Congress wanted to “narrow the gap between men’s and women’s leave rates” and to remove a factor that made women less attractive as employees, Prof. Cornelia T L Pillard of Georgetown University Law School told the justices.

Prof. Pillard represented William Hibbs, a Nevada state employee who sued his state agency under the statute when it refused to give him the leave he requested to care for his ailing wife. Nevada responded by arguing that it was entitled to immunity from suit because Congress lacked authority to abrogate the immunity provided by the 11th Amendment. Nevada appealed to the Supreme Court when the US Court of Appeals for the Ninth Circuit, in San Francisco, rejected that argument in December 2001.

Under the Supreme Court’s precedents, Congress can remove the states’ constitutional shield against private damage suits only in one limited circumstance, by invoking its power under the 14th Amendment’s guarantees of equal protection and due process. Section 5 of the 14th Amendment authorizes Congress to enforce those guarantees through “appropriate legislation.” The court’s recent decisions have held that efforts to permit suits against the states under federal laws against age discrimination and disability discrimination were not “appropriate.”

The current case, Nevada Dept. of Human Resources v. Hibbs, No. 01-1368, is important because the court has traditionally given substantial deference to Congressional efforts to remedy discrimination on the basis of sex and race. Joining Prof. Pillard in defending the statute today, Assistant Attorney General Viet D Dinh referred to Congress’ “unique remedial power under Section 5.” As Justice O’Connor’s early question indicated, there is a sense among some justices that the court has now reached an important fork in the road. Mr Dinh, who was a law clerk to Justice O’Connor during the court’s 1995-96 term, was making his first argument in any courtroom.

Mr Taggart, Nevada’s lawyer, argued that in passing the Family and Medical Leave Act, Congress was enacting ordinary workplace legislation under its power to regulate interstate commerce, and was not even trying to rely on its Section 5 power.

“Congress should not be allowed to do indirectly what it’s prohibited from doing directly,” Mr Taggart said. Justice David H Souter objected. “It doesn’t sound to me like simply an end run, a phony Commerce Clause argument,” he said after giving his view of the state’s anti-discrimination purpose.

Source: The New York Times, 1/16/03

ADA Compliance in Des Moines Rapped

By Jason Clayworth

A group that monitors the city's compliance with federal disability laws says Des Moines has not fully complied with the Americans with Disabilities Act, more than a decade after the government ordered that all public buildings be made accessible.

The Access Advisory Board, appointed by city leaders, says it's ready to blow the whistle on the many city-owned buildings that lack wheelchair ramps, wider entrances and other requirements. The City Council is expected today to hire a consultant who will map out all the spots that require work. The plan could cost millions.

The problems range from restrooms that are too cramped and drinking fountains that are too tall to a lack of handicapped parking spaces.

“Sometimes I won't even go into some of the buildings because I know there are accessibility problems,” said Jeff Jasper, a 23-year-old Des Moines man with cerebral palsy. Advisory board members have threatened to report the city's shortcomings to federal officials. That has prompted a council vote today on whether to spend $75,000 for a review of nearly 80 buildings.

Parks and Recreation Director Don Tripp said city leaders outlined a plan a decade ago to fix many of the deficiencies. “It's been, to some extent, followed,” said Tripp, who represents the city on the advisory board. “Our hope with this plan is that it's more complete.”

The Americans with Disabilities Act, pushed by U.S. Sen. Tom Harkin, D-Ia., protects people with disabilities from discrimination in employment, public accommodations, state and local government services, telecommunications and transportation. About 10 percent of Iowa's population has some type of physical disability.

Cities of more than 500 people were to outline needed updates by the end of 1992, with completion within five years. “There are some tremendous deficits that still exist in city buildings,” said Robert Jeppesen, executive director of the Central Iowa Center for Independent Living.

Des Moines is not alone.

“There's been a lot of action taken already, but I'm sure there are those who say we haven't gone far enough,” said Tom Bredeweg, executive director of the Iowa League of Cities. “Generally speaking, I don't see a lot of litigation.”

Des Moines doesn't face fines for its failure to meet federal requirements, but inaction could open the door to a slew of lawsuits, Bredeweg warned. He said many Iowa cities continue to wrestle with accessibility issues and tight budgets don't help the matter.

Studies in 1994 and 1996 by Peter Blanck, co-director of the University of Iowa Law, Health Policy and Disability Center, showed that most accommodations cost cities, states and businesses less than $1,000. Costs typically are related to the age of the building. For example, Iowa taxpayers spent about $2.7 million to make the Capitol Complex in Des Moines handicapped-accessible.

Judy Hoit, coordinator of Ms. Wheelchair Iowa, a nonprofit advocacy group, said the problem is national in scope. “Somebody has missed the boat somewhere, because they're not following through with plans,” said Hoit, whose group in July will host for the first time in Iowa the Ms. Wheelchair America pageant. The event will bring competitors from as many as 30 states to Des Moines.

The study will take about four months and include cost estimates and a completion date, Tripp said. City Councilman Frank Cownie said the city has no choice but to bite the bullet, even amid a budget crunch that has forced layoffs and proposed increases in fees from parking rates to zoo admissions.

Talk about it. The Des Moines City Council will meet at 4:30 p.m. today at City Hall, 400 E. First St.

Source: The Des Moines Register, 12/16/02.

HIV-Positive Blood Handler Fired : Discrimination Charged

DENVER, Dec. 13th — On Thursday, December 12, two civil rights groups filed a lawsuit in Federal District Court in Denver alleging that Belle Bonfils Memorial Blood Center violated the Americans with Disabilities Act (the ADA) by engaging in employment discrimination.

The lawsuit asserts that Bonfils illegally terminated an employee from his position as a phlebotomist (blood donor technician) on the basis of his HIV positive status. HIV is the virus known to cause AIDS.

The complaint also alleges that Bonfils' termination of the HIV positive employee violated Section 504 of the United States Rehabilitation Act, as well as the Colorado Anti-Discrimination Act.

The Legal Center for People with Disabilities and Older People and The Center's Legal Initiatives Project (CLIP) jointly filed the suit on behalf of the employee.

The Legal Center for People with Disabilities and Older People, a nonprofit organization established in 1976, uses the legal system to protect and promotethe rights of individuals with disabilities and older adults through direct legal representation, advocacy, education and legislative analysis. The Center's Legal Initiatives Project (CLIP) is a program of the Gay, Lesbian, Bisexual and Transgender Community Center of Colorado (The Center). CLIP, founded in 1992, led the successful legal challenge against the anti-equal rights measure commonly known as Amendment Two.

Contact: The Legal Center for People with Disabilities and Older People, Eric Maxfield, 303/722-0300 X234 or The Center's Legal Initiatives Project.Andrea Faley, 303/733-7743.

Source: Business Wire, 12/13/02

IT Accessibility Campaign Launches Educational Web Site

The Federal IT Accessibility Initiative has produced a Section 508 Awareness program. The program has several “lessons” than contain information regarding the Section 508 Standards as well as the reasons behind the standards. It is a useful tool to raise awareness regarding the accessibility requirement of Section 508 for staff, procurement officers and others who are involved in making decisions regarding the design, purchase or use of electronic and information technologies.

Section 508 aims to provide Federal employees with disabilities access to office systems and information equal to their non-disabled colleagues. It also assures that people in the general public who have disabilities, have equal access to government information.

Program details

Sacramento Reverses Refusal to Fix Damaged Sidewalks

By Dwight Daniels

City Attorney Casey Gwinn yesterday said the city is withdrawing from a Sacramento lawsuit that challenges federal requirements to repair cracked and broken sidewalks. To the applause of about 25 advocates for people with disabilities, Gwinn said he had decided to reverse course after listening to the group, studying the law and doing some soul searching.

“It was said at our last meeting that this is a civil rights issue, and I agree with you. This is about civil rights,” said Gwinn as he met with the disabled activists in a City Hall committee room.

Sacramento City Attorney Samuel Jackson could not be reached for comment about Gwinn's decision. The city is appealing a lower court ruling that would require Sacramento to fix damaged sidewalks under the Americans with Disabilities Act.

The lawsuit, which Gwinn had originally joined with many other municipalities and the California League of Cities, is generally seen by local governments as a stand against unfunded federal mandates.

“It has nothing to do with cities being for or against the issues the disabled community is raising,” said Megan Taylor, the league's spokeswoman. “It's a question of resources.” With local governments expected to absorb revenue cutbacks as the state makes up a budget deficit of more than $30 billion, the problem could be exacerbated,” Taylor said.

“Governments have to make sure bridges don't fall down and children go to school in public buildings where the toilets flush,” she said.

Yet people with disabilities don't see it that way. Unlevel or broken sidewalks, they say, are barriers to their participation in daily life. They say their basic rights to move freely about or assemble are hindered without repairs to sidewalks being made. “It's a great day for the whole community,” said Michael Eden, president of Visually Impaired Peoples Services of San Diego County.

“Mr. Gwinn is showing that you can move forward. He is showing California and the nation that San Diego is a leader on disabled issues.”

In November, a group of about three dozen disabled advocates protested in front of City Hall to call attention to their opposition to Gwinn supporting Sacramento's lawsuit. Gwinn did not promise a panacea for the group, noting he is only an adviser and does not set policy.

Yet in his role as city attorney, Gwinn said, he will “do everything (I) can to consistently advise and advocate for greater accessibility, for greater support, for greater service, not for lesser.”

“I do have the ability to say this is the right thing to do,” he said. Gwinn did not need the City Council's approval to reverse his decision, though he consulted with city leaders on his planned action.

Dwight Daniels

Source: Union-Tribune,12/20/02.

Advocacy Strategies for Accessible Housing

By Steve Gold

While most housing issues are local to your city or county, there are State-wide housing handles that disability advocates could use to increase the supply of Affordable, Accessible, and Integrated Housing. These State-wide issues offer a good opportunity to unite different sections of your State disability community around a common problem.

Every State has a State housing agency that, at least, allocates the Low-Income Housing Tax Credits (LIHTC). Most State housing agencies receive Community Development Block Grants that are used for low-income housing, and many states allocate Section 8 rental housing vouchers and have a HOME program, whether for new construction or rental assistance. Quite a few have some responsibility for housing codes.

Here are some advocacy suggestions:

Force your State housing agency to comply with applicable accessibility requirements of Section 504 and the federal Fair Housing Act Amendments. Does your State housing department require all developers who receive federal funding to comply with 504 and FHAA? Why not?

2. Amend your State’s Low-Income Housing Tax Credit Allocation Plan to require compliance, by all recipients of these tax credits, with Section 504 accessibility requirements. Make sure your State Housing Agency then monitors LIHTC compliance.

3. Remember that recipients of LIHTC are prohibited from discriminating against Section 8 voucher holders. If your State housing agency has received Section 8 vouchers, make sure that it requires that recipients of the LIHTC do not discriminate against Section 8 voucher recipients.

4. Do your State’s Community Development Block Grant and HOME funding recipients comply with Section 504 and FHAA? Does your State agency monitor this compliance. Look into whether your State is using its CDBG funds for a Home Modification program. Some states are.

5. Ask your State Welfare Department how they have tied Section 8 vouchers with Home and Community-Based Waiver programs to ensure that housing is not a barrier for disabled persons to move from nursing homes.

6. Review the State agency's Consolidated Plan and present testimony twice a year to focus on the needs of the disability community.

Do not be surprised if both your elected State officials and your State housing agency officials have never focused on the disability issues. It’s a great opportunity to put Affordable, Accessible, Integrated housing issues on the State agenda.