Disabling the prisons
THOMAS, ANDREW PEYTON
Disabling the Prisons by Andrew Peyton Thomas What happens when a vague, sweeping civil-rights law is put at the disposal of antisocial citizens famous for the variety, multiplicity, and...
...The Americans with Disabilities Act has enough problems without applying it to inmates...
...The court is likely to find in favor of the inmate...
...Deliberately open-ended, the ADA invites exploratory litigation...
...And while judges do from time to time unveil "judge-made statutory exceptions so weakly rooted in the statute as to be fairly described as judicial amendments," the Seventh Circuit would not do the same on posner's watch...
...On April 28, the Supreme Court will hear oral argument on whether the Americans with Disabilities Act applies to a prisoner...
...Last year, Gov...
...Last year, Judge Richard Posner of the Seventh U.S...
...If the Supreme Court endorses this view, the ADA may turn out to be the greatest wellspring of prisoner litigation since the invention of habeas corpus in the Middle Ages...
...In July 1997, the Third U.S...
...In September 1992, as one of its last acts, the Bush administration published a regulation that applied IDEA to educational programs in "state correctional facilities...
...Pete Wilson of California fired off a letter to Education secretary Richard Riley excoriating the Clinton administration for enforcing IDEA in prisons and mandating "special education for death row inmates and violent criminals...
...And the blame for this legal absurdity lies not with our imperial judiciary but with Congress and the Bush administration...
...of Corrections v. Yeskey, the high court will consider the appeal of a pennsylvania inmate who was denied admission to a "motivational boot camp program" because of a history of high blood pressure...
...The ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity...
...The state of Indiana conceded that the ADA applied to prison employees but contended that inmates fell outside its ambit...
...California has more than 700 such inmates sentenced to life without parole and two currently on death row...
...The court ruled that when Congress wishes to regulate prisons, a "core state function," it must express this intention unambiguously...
...we may be about to find out...
...Congress should make it clear that rights under the ADA and IDEA are among those that convicts leave behind when they pass through the prison gate...
...The Individuals with Disabilities Education Act of 1975 (IDEA) guarantees a "free appropriate public education" to all disabled Americans through high school or age 21...
...It is therefore ripe for abuse when placed in the hands of criminals practiced in barratry...
...Disabling the Prisons by Andrew Peyton Thomas What happens when a vague, sweeping civil-rights law is put at the disposal of antisocial citizens famous for the variety, multiplicity, and shamelessness of their lawsuits...
...The two circuits that have refused to apply the ADA to inmates, the Fourth and the Tenth, have done so with rulings that seem strained and result-oriented compared with Posner's opinion...
...Congress, the courts noted, drafted the law so broadly as to apply even to prisoners...
...Yeskey sued the state prison system for violating his rights under the Americans with Disabilities Act...
...Wilson pointed out that the youths transferred to adult prisons typically are hardened criminals...
...The Clinton administration seems poised to celebrate such a ruling with attempts to expand further the rights of convicts...
...By 1990, when Congress passed the ADA, the courts had interpreted the Rehabilitation Act as applying to prisons and prisoners...
...Congress, he found, seemed to regard disability-based discrimination as so "unfair and even odious" that it designed the ADA to penetrate even the walls of penitentiaries...
...While these cases were wending their way through the courts, the Clinton administration was aggressively pursuing a second front in the campaign to extend prisoners' rights...
...The act defines "disabilities" as including "serious emotional disturbances," which under the regulations cover "inappropriate types of behavior or feelings" and "a general pervasive mood of unhappiness or depression...
...In White v. Colorado, the Tenth Circuit ruled tersely that the inmate's ADA claims were not "viable...
...The case that thrust the issue before the Fourth Circuit, Torcasio v. Murray, had as its star plaintiff an inmate pressing an ADA claim based on obesity...
...Circuit Court of Appeals ruled that Yeskey and his fellow prisoners should not be barred from bringing disabilities lawsuits...
...of Corrections that the ADA doles out rights to all "qualified individual[s] with a disability" who are denied access to "services, programs, or activities of a public entity...
...The difficulty" with this interpretation, pos-ner noted, "is that the statute furnishes us with no implement for drawing the line there...
...In Pennsylvania Dept...
...Both the Seventh and the Ninth Circuits have agreed with this portentous interpretation...
...The disabilities act, the court said, "must be held to apply to state and local correctional facilities...
...Andrew Peyton Thomas is an attorney in Phoenix...
...Failure by the Golden State to provide this costly instruction could lead to the loss of over $300 million in federal special-education funding...
...The statute's language is generous indeed—much of it borrowed from the Rehabilitation Act of 1973...
...Since then, the Department of Education has scoured the country for scofflaws, citing at least 20 states for non-compliance and threatening to withhold federal education funds in retaliation...
...posner noted in Crawford v. Indiana Dept...
...when Indiana urged a different interpretation of the ADA, it was effectively "asking us to amend the two statutes," noted posner...
...Circuit Court of Appeals handed down a compelling analysis of the ADA's application to prisons, on which the Third Circuit relied heavily in Yeskey...
Vol. 3 • April 1998 • No. 32
