Blawg Review #274

Welcome everyone to Blawg Review #274! Blawg Review is still the place to find out where the best law blogs are posted, and because today is the 20th anniversary of the Americans Disabilities Act of 1990 (ADA) I am going to share some informative and interesting stuff about the ADA. But I will also try to point your browser at a few excellently written posts by Blawgers.

Although the legal community may be thinking of other things on July 26, 2010 I thought I would let you know that this particular piece of legislation signed into law on July 26, 1990, by President George H. W. Bush advanced the rights of a large segment of the citizens of the United States of America.

The ADA was enacted by the U.S. Congress in 1990 to “establish a clear and comprehensive prohibition of discrimination on the basis of disability.”

Even though George H.W. Bush signed the act into law, it is Justin Dart, Jr., who is thought of as the “father” of the ADA. Stephanie Woodward, Transportation Systems Advocate commemorates this in a nice Center for Disability Rights blog post  A Short History of Justin Dart, Jr., “Father” of the ADA.

The protection of the rights of individual United States citizens has come a long way since John F. Kennedy was president, I believe that he was our moral compass and set this country in the right directiWe are confronted primarily with a moral issue, it is old as the scriptures and is clear as the American Constitution.

The heart of the question is whether all Americans are to be afforded equal rights and equal opportunities? Whether we are going to treat our fellow Americans as we want to be treated?

“The ADA is kind of like our own civil rights act,” said Rick McWilliams, program manager for the Westmoreland County Disabilities Task Force to Cody Francis of the Pittsburgh Tribune. “We liken it to the Civil Rights Act of 1964. We like to not only make people with disabilities aware but also increase public awareness that people with disabilities are like everyone else.”

I don’t think anybody really wants to be like everyone else. Today kids get tattoos so as to separate themselves from the crowd. But being separated from the crowd because of something negative is not what anybody strives for. I like the idea of taking pride in who you are, knowing that no matter the level of your ability you can help make society a better place.

Jonathan R. Mook writes a comprehensive history how the act came about as well as how it evolved through the courts in the past 20 years in the Workers Compensation Law Blog:

This month, therefore, is a time for celebration of what has been termed the “declaration of independence” of individuals with disabilities. For far too long, individuals with disabilities had remained largely hidden due to discriminatory attitudes and misconceptions which prevented them from working, taking mass transit, going to theaters, museums, and restaurants, and other places where the public gathers.

There were many events to commemorate the ADA that occurred in the past week and are planned for today.

Seriousinjurylaw Blog  reminded us that The Christopher and Dana Reeve Foundation called on people to help it smash the Guinness World Record for the most wheelchairs in a moving line.

Disability pride parades were held this weekend in Chicago and San Jose. I think the idea of not hiding in the closet because you have any disability but to revel in who you are is wonderful. The theme in San Jose was “Say it loud, We’re disabled, and we’re proud.”

A guest post for the Fehribach Group Blog Juli Paini, the director for the City of Indianapolis Office of Disability Affairs, says that “The ADA helped raise my comfort level talking about my disability, as well as the comfort level of the people around me.”

The Americans with Disabilities Act (ADA) prohibits discrimination on the basis of physical or mental disability. The ultimate goal of the ADA is to break down the stigma associated with people with disabilities and to “to promote equal opportunities for persons living with disabilities” in all major life activities such as:

1. Employment: Employers may not discriminate against an individual with a disability in hiring or promotion if the person is otherwise qualified for the position. Employers must provide “reasonable accommodation,” such as job restructuring and modification of equipment when necessary.
2. Public Entities: State and local governments must remove communication and physical barriers that restrict people with disabilities from using their services and activities.
3. Public Accommodations (and Commercial Facilities): Auxiliary aids and services must be provided to individuals with hearing or vision impairments.
4. Telecommunications: Telephone companies must provide telecommunications relay services for hearing-impaired and speech-impaired individuals 24 hours per day.

The Deaf News Today Blog has a nice breakdown of what The Americans with Disabilities Act covers and does not cover in Getting to Know.. ADA.

In a guest post at Disability Blog, Harvard Law school graduate, Carrie Griffin Basas, Esq. stated that

“When I asked Harvard if it tracked disability as a diversity category among alumni, and how I might reach others with disabilities, I didn’t receive a lot of support, let alone understanding. Why would we track disability? Isn’t that a bad thing, one we don’t talk about?”

Generally speaking, “Disability” under the ADA means a person with a physical or mental impairment that substantially limits one or more major life activities. While it is important that the act defines the term “disability” in the end it is just a matter of semantics.

FWD/Forward Blog FWD (feminists with disabilities) for a way forward has an ongoing FWD/Forward series called “Ableist Word Profile “in which they explore ableism and the way it manifests in language usage. Are you an Ableist?

What’s in a name anyway? The term “retardation,” once viewed as clinical and neutral, is now considered so demeaning that it required “Historic” legislation signed by Gov. David Paterson to remove the term “mental retardation” from the title of the New York’s agency “Office of Mental Retardation and Developmental Disabilities” and from anywhere in the state statutes and regulations. Now it is the Office for People With Developmental Disabilities.

You may be wondering by now why a patent and trademark attorney was asked to host Blawg Review. I lost my hand and part of my right arm in an accident in 1972. But I continued to participate in many sports. People that know me don’t consider me disabled. But believe me there is a stigma with name calling as children and it carries over as discrimination in the job market and other areas of life when we become adults.

Although Rick McWilliams says he wants to be like everyone else, I think what he really means is he wants to be treated like everybody else. Click on the picture below and take a look at the video of me demonstrating how to catch and throw a ball with one arm with my daughter and let me know if you think I’m disabled or if you have an opening for me on your softball team.

Are you disabled? Think of a number in your mind. How many times do you need to fall before you give up? What about Aaron Fotheringham? There is no number of times for this guy, he doesn’t know how to give up. Watch the number of times he falls in the beginning of this video and then go and get your in-line skates or bike and try to do what he does in the wheel chair. Not too many takers? I thought so.

What about just getting community-based services to help you bathe, dress and eat?

Michele Haddad, a 49-year old mother, was in a motorcycle accident with a drunk driver which caused a spinal cord injury that left her paralyzed. Michele needed community-based services for the bare necessities of life.

The state of Florida would only provide her the services if she would first enter a nursing home for 60 days even though it would have been less expensive just to provide the services. Haddad’s lawsuit argued that by failing to provide community-based services to Medicaid-eligible individuals with spinal cord injuries who are at risk of institutionalization, the State of Florida violated the ADA because it would deprive her of her right to live in her community.

The ADA requires that individuals with disabilities be provided services in the most integrated setting appropriate, as determined by the Supreme Court in the landmark decision Olmstead v. L.C.

What do you do if you are refused access to a RV park because of your disability?

Charles Glover was undergoing treatment for late-stage non-Hodgkin’s lymphoma. He and his wife, Sylvia, were in the process of adopting their two-year-old foster-child, C.G., who was born with HIV.

The Glovers reserved an RV campsite at Wales West RV Resort for the month of July. After one day in the park they were asked to leave because of their medical conditions even though no one else was put at risk.

The Justice Department’s Civil Rights Division filed a lawsuit against Wales West LLC, alleging that it violated Title III of the ADA when it unlawfully denied full and equal services. In January 2010, the Department and Wales West reached a settlement under which Wales West agreed to pay $36,000 in damages to the Glover family and $10,000 to the United States as a civil penalty. Wales West also agreed to adopt nondiscrimination policies at its RV resort and will annually train all staff on these policies.

While the Justice Department has had its share of success stories and Walter Olson‘s blog post at Cato@Liberty lists a few large monetary recoveries, he points out that it shouldn’t be immune from criticism. Like any other well-intentioned act, there is no such thing as perfect.

Accessibility in the Digital Age

What we take for granted in the digital age is an obstacle for many with disabilities. With the high cost of print text books, colleges and universities nationwide are eliminating traditional print text and replacing it with electronic course materials. But in order for some individuals with disabilities to take full advantage of new technologies, those technologies must be accessible.

On June 30, Assistant Attorney General for Civil Rights Thomas E. Perez and Assistant Secretary of Education for Civil Rights Russlyn Ali jointly issued a letter to colleges and universities expressing concern over their use of electronic book readers that are not accessible, and soliciting the assistance of university leadership in ensuring that emerging technologies used in education are fully accessible to individuals with disabilities in the future.

This resulted in a series of settlement agreements that the Department of Justice entered with colleges and universities using the Kindle DX in the classroom as part of a pilot study with Amazon.com Inc.

The Justice Department is fully committed to ensuring that all individuals, including those with disabilities, have equal access to new technologies in the digital age. Samuel R. Bagenstos, Principal Deputy Assistant Attorney General for Civil Rights testified before the House Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties where he stated

“…access to the Internet and emerging technologies is not simply a technical matter, but a fundamental issue of civil rights. As more and more of our social infrastructure is made available on the Internet – in some cases, exclusively online – access to information and electronic technologies is increasingly becoming the gateway civil rights issue for individuals with disabilities.

What about pro-golfer Casey Martin, who was unable to compete at a high level of golf without the aid of a golf cart (which was prohibited by the rules of the Pro Golfing Association for tournaments). “Without the ADA I never would have been able to pursue my dream of playing golf professionally.”

What about something as simple as walking up the stairs? AT Program News (ATPN) blog created to serve the common mission of the State Assistive Technology Act Programs bloged about how there  “Ain’t No Mountain High Enough.”

“Twenty years ago this past spring, a group of ADAPT activists demonstrated the need for the passage of the Americans with Disabilities Act (ADA) by abandoning their wheelchairs at the foot of the United States Capitol and crawling up the steps that, at the time, afforded the only means of access to the legislative branch of the U.S. government.

This action, which is now an iconic part of U.S. civil rights history, was just one of a series of protests the group organized that week in D.C. As with previous civil rights movements, protesters were arrested for acts of civil disobedience; unlike scenes typical to earlier movements, however, the authorities had trouble carrying out their law enforcement obligations. At the time, few court houses, jail cells, or even elevators were accessible to law-breakers with disabilities.

See Tom Olin’s photo of ADAPT members climbing the Capitol steps at DisabilityMuseum.org

One of the things you should note when you go to AT Program News (ATPN) blog is that there’s a gadget to click labeled “listen now.”

I guess I should apologize to all the disabled readers that need this in order to participate in Blawg Review and read my blog. I will look into having this technology added to my blog.

In case you’re wondering the construction of the U.S. Capitol began in 1793 and since that time, the U.S. Capitol and its stately dome have become international symbols of our representative democracy. But as a result of ADA people with disabilities have equal opportunities to visit

So you don’t want to climb a mountain? What about being prevented from crossing the street because the curb is too high? Take a look at Media dis&dat blog where they are changing landscape of disability “news.”

Nearly five years after a federal judge ordered the City of Detroit to comply with the Americans with Disabilities Act by installing curb ramps at intersections, several streets still have not been fitted with properly constructed access ramps.”

Some businesses and building owners wrongly believe that “we are ‘grandfathered in’ so we don’t have to do anything to make our buildings accessible.”

But  Kyle Glozier posted on the Center for Disability Rights Inc. blog that they may do less than what’s required for a newly constructed or significantly renovated building, but they are still required under Title III of the ADA, that ”Public Accommodations Built Before the ADA Must Make Readily Achievable Access Improvements.

Dog Law Reporter blog reported that the U.S. Supreme Court held that ADA requirements regarding disabled passengers applied to a foreign-flag vessels, so if you want to go on the cruise and your dog is considered a service animal you are covered under the ADA.

Unfortunately, the ADA does not guarantee access for emotional support animals in public places. The ADA and other federal and state laws do, however, support the right to emotional assistance animals in housing according to the Animal Law Attorneys blog.

It must be difficult to figure out what you can do and what you can’t do to make sure you are in compliance with the ADA. That’s why employment law blog posted a link to an online tool to help you figure out the dos and don’ts of the act entitled DOL Offers Disability Law Advisor Tool Online.

Because of the ever changing landscape in electronic technology, the Department of Justice announced Plans to Prepare a New ADA addressing:

• the accessibility of websites,
• the captioning and video description in movies shown in theaters,
• accessible equipment and furniture, and
• the ability of 9-1-1 centers to take text and video calls from individuals with disabilities.

Review of Other Blawg Posts

Well I guess that’s enough of the ADA regulations for one blog post. There were some pretty good blawg posts this last week to review.

Intellectual Property (Patents, Trademarks, Copyright)

Starting with Erik Heels post about the Supreme Court decision in Bilski versus Kappos,  A Mere Mortal’s Guide To Patents Post-Bilski (Or Why §101 Is A Red Herring). God I wish I posted this one. Great job Erik! This post concludes the Supreme Court blew a chance to define what is patentable method of doing business, instead all we end up with is a bunch of questions.

I think that by simply ruling an abstract idea is not patentable (presumably including any business method) whether or not it (1) produces a useful, concrete, and tangible result, (2) is applied in a useful way, or (3) is reduced to a practical application may allow many legitimate new internet based methods of doing business go unprotected.

Doesn’t the Supreme Court understand that many abstract ideas (such as virtual ways of doing business on the Internet) aren’t tied to any machine or transformation?

Patently-O  has a nice 3 part series Patenting by Entrepreneurs: The Berkeley Patent Survey (Part I of III) where Guest Posters Robert Merges and Pamela Samuelson, UC Berkeley School of Law and Ted Sichelman, University of San Diego School of Law answer the question “Why do entrepreneurs and startup companies file for patents?”

Legal Tech (iPad etc)

In Technology’s Effect on the Legal Profession, by Law Sites Blog, he looks back at some old stuff… right now writing this I feel enslaved but I do hope to feel empowered by the time I’m done.

What electronic portable electronic device do you bring to work with you? When Everyone Has Their Own Smart Phone, What Does That Mean for the “Workplace”? It means that today’s companies should know that the firewalls on the workplace computers will not keep them “protected” from social media.

Do you think you can anonymously make comments on a blog or on an Internet webpage regarding a product ? Well you better be careful what comments you make on the Internet because as the Citizen Media Law Project will tell you in Internet Anonymity cases the federal courts have recently created an expansive category of “commercial speech” which is not entitled the same freedom of speech protections afforded to US citizens in the Constitution.

JD Supra Powers New LinkedIn Legal Updates, JD Supra content will now be seamlessly integrated into Linkedin. I haven’t tried this but it looks promising. I think I’m going to play around with it if I ever finish this Blawg review.

Flipboard Wades Into Murky Copyright Waters Where Google Lives points out Flipboard as a cool app for your I-pad, but does it violate copyright law?

Other Interesting Stuff

In the Blog of Rights post entitled Our Secret Security Establishment: the Big Picture, Jay Stanley tells us the government is spending $75 billion to obtain information and that much of  the information is obtained in violation of our civil liberties. As usual the US government is drowning in a sea of information…”it is no exaggeration to say that our secret intelligence establishment has spun out of control.”

I hope we don’t get nuked while the government protects Shrek, but if you want laugh at or cry about what the government is doing take a look at Department of Homeland Security Deploys Ogre-Protection Force.

The Influence of Law Blogs (2006-Present) gives blawgers evidence of their relevance in solid numbers. In fact you can download an excel spread sheet of all law blogs that have been cited in law journals since 2006.

Getting into blawging late in the game, I ‘m still trying to wrap my head around what it is all about.  Kevin O’Keefe calls it “sipping from the fire hydrant.” But I think Kevin’s got it right when he says it’s all about Relationships. I met Kevin in Toronto this past December when I started on this Social Network path and I understand why he is such a success, I feel as he is a friend I’d like have beer at a Cubs game with, because I know he will help me succeed and he’s a cool guy. Relationships is again the reason Why blogs ought not drive traffic to your law firm’s website.

Please comment on this post if you would like expand your network of relationships…I will reply.

Now  I would like to “handoff” the baton to the next host of Blawg Review, this month’s host of Carnival of Trust, Charlie Green, author of The Trusted Advisor, at his blog Trust Matters. Good luck.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.