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The National Disability Rights Network (NDRN) is the membership association of Protection and Advocacy (P&A) agencies located in every state, the District of Columbia, Puerto Rico, and United States territories.  NDRN authors amicus briefs and/or signs on to amicus briefs filed by other organizations in cases involving issues of significance to P&As.

NDRN accepts requests to participate in an amicus brief from P&As, as well as others. Persons wanting to submit a request need to fill out the NDRN Amicus Request form and submit it to NDRN’s amicus coordinator. Factors influencing whether NDRN can grant a request include the importance of the issues to the P&A network, the procedural posture of the case, and the amount of time available for preparation and review of the amicus brief before it needs to be filed.

Recent amicus briefs

Americans with Disabilities Act ( ADA)

US v AMC (9th Circuit Amicus Brief filed September 2006) (Argued November, 2007) [note: Table of Contents and Table of Authorities is at end of document]

Question: Whether District court exceeded its power to order nationwide remedial relief.

ADA accessibility case brought by DOJ involving movie theaters with "stadium seating." District Court ordered nationwide injunction finding that AMC's theaters violated ADA by providing wheelchair seating in only the front rows. Court approved remedial order. AMC appealed arguing that District Court erred in granting nationwide relief in light of contrary Fifth Circuit decision in Lara G. v. Cinemark.  Amicus argues that district correctly granted nationwide relief and if nationwide relief were not ordered, disability rights groups would be forced to “race to courthouse” to file and litigate before an unfavorable ruling in one Circuit precluded nationwide relief.

Bates v UPS (9th Cir. Amicus Brief filed April 2005)

Question: Whether UPS's use of the U.S. Dept. of Transportation (DOT) hearing standard, as a qualification standard for drivers of "light" delivery trucks (i.e., trucks not covered by the DOT rule) violates the Title I of the ADA.

On October 10, 2006, the 9th Cir. unanimously affirmed the lower court ruling against UPS, Bates v UPS, 465 F.3d 1069 (9th Cir 2006). UPS had used a Department of Transportation hearing test intended for vehicles weighing over 10,000 lbs to determine who would be eligible for positions driving vehicles that were under 10,000 lbs. Plaintiffs successfully argued at trial that UPS’s use of the test for vehicles under 10,000 lbs, such as brown package car vans, impermissibly screened out deaf applicants with safe driving records, seniority, and who were otherwise eligible to drive. The District Court had ordered UPS to individually assess deaf applicants for driver positions including what reasonable accommodations, if any, were needed to enable deaf applicants to drive safely and communicate effectively. UPS sought re-hearing en banc and on December 28, 2007, issued a new decision vacating and remanding for further proceedings applying different legal standards because the case involved a facially discriminatory qualification standard.

Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act

Loeffler v. Staten Island University Hospital , (2 nd Cir. Amicus Brief filed 3-17-2008)

NDRN joined an Amicus brief filed on behalf of eleven (11) national and local organizations concerned with health care access issues, language access for people of Limited English Proficiency and discrimination against people with disabilities including the National Association of the Deaf and the Alexander Graham Bell Association for the Deaf and Hard of Hearing on behalf of a deaf patient and his family who were not provided ASL interpreters for a scheduled in-patient surgery at the hospital. The suit sought damages for the discrimination resulting from the failure to provide ASL interpreters under Section 504 of the Rehabilitation Act. The District Court found that because the hospital had a policy for obtaining interpreters, its failure to actually provide ASL interpreting was not the result of deliberate indifference.

The Amicus provides supports for the argument that effective interpretation is critical in medical settings and that the lower court failed to recognize 2 nd Circuit precedent that deliberate indifference could be found when deprivation of rights results from the implementation of a flawed policy.

Sheely v. MRI Radiology Network (11th Cir. Amicus Brief filed 9-25-06)

Question: Did District Court erroneously dismiss case on ground that plaintiff may not recover damages for emotional or mental distress for violations of Section 504 of the Rehab Act

Woman with visual impairment and who uses service dog was denied entry past waiting room to accompany her 16 year old to imaging room because of her service dog. Facility implemented service animal policy after suit filed and claimed injunctive claim moot and no damages available under Section 504 for emotional damages. Amicus argues emotional damages remain available, only punitive damages claims under the Rehabilitation Act foreclosed by Supreme Court’s decision in Barnes v. Gorman .On October 24, 2007, the 11th Circuit Court of Appeals issued a decision agreeing, finding that damages for emotional distress are available for intentional violations of the Rehabilitation Act.

Criminal Justice

Shook v. The Board of County Commissioners of the County of El Paso, (10th Cir., Amicus Brief filed 2-20-07). (Argued January 23, 2008)

Question. Denial of class certification based on: (a) the inherent complexities in determining what persons present a need for treatment of mental disorders while confined; and (b) deference to corrections officials requires a separate evaluation of all of the circumstances surrounding each incident.

Clark v. Arizona (U.S. Supreme Court, Amicus Brief filed on Jan. 2006)

Question. (1) Whether the Constitution (14 th Amend. Due Process Cl.) requires States to offer a criminal def. the possibility of an insanity defense; if so, must the State allow Def. to claim that, because of mental defect, he could not know the nature & quality of the crime he is accused of committing.

(2) Whether a State may limit/eliminate the right of a Def. to offer evid. of mental defect to rebut the prosecution’s evid. that the Def. had the state of mind required by statute (knowledge that he was killing a police officer). [decision]

Education

Board of Education of NYC v Tom F. (U.S. Supreme Court)

Brief for the National Disability Rights Network and the New York Lawyers for the Public Interest as Amici Curiae in Support of Respondents (July 18, 2006)

D.S. v. Neptune Township, 3rd Circuit.  (Amicus Brief filed Feb 2007).

The issue before the court is whether the parents of a child who has not been classified as “a child with a disability” under IDEA can be reimbursed for attorneys’ fees for a successful claim under IDEA. 

The parents were successful in securing evaluations from the school system and independent assessments at school district expense through the hearing process.  However, because a state court resolved the issue of school placement for the child through a different proceeding, the determination of the child’s eligibility under IDEA was not fully litigated.  The District Court denied parents’ application for attorneys fees because neither the school district nor the Administrative Law Judge determined that the child was a child with a disability as defined under IDEA. 2-14-2008 Non-Precedential Decision 

Winkelman v. Parma City Sch., District (U.S. Supreme Court, Amicus Brief filed Dec. 2006; Case argued 2-27-07; decision issued 5-22-07 [oral argument] [decision])

Held:IDEA grants parents independent, enforceable rights, which are not limited to procedural and reimbursement-related matters but encompass the entitlement to a free appropriate public education for their child.

The parents of Jacob Winkelman sought to represent him in a federal court suit under the Individuals with Disabilities Education Act (IDEA) challenging the school district’s education plan for him. The Sixth Circuit ruled that non-attorney parents may represent their children in IDEA administrative proceedings but may not appear in federal court to assert their child’s substantive rights to a free and appropriate public education (FAPE) or their own procedural rights under IDEA.

On October 27, 2006, the Supreme Court granted certiorari to hear the case and resolve the split in the circuits on this issue. Four courts of appeals have held that parents can represent themselves to pursue their own procedural rights under IDEA, but may not represent their child in asserting the child’s substantive right to FAPE.  The First Circuit has held that parents may appear pro se (i.e., represent themselves) in federal court because the procedural and substantive rights are “inextricably intertwined” and, therefore, parents may proceed pro se to assert those rights.  

Bd of Ed v. S.G., a Minor by her parent and next Friend, N.G.(4th Cir., Amicus Brief filed on Sept. 2006)

S.G. is a child with schizophrenia and depression who was unable to stay in school with large classrooms and crowded hallways.  S.G. also had suicidal ideations and was hospitalized for causing self-inflicted injuries.  As an accommodation, the school based her grades only on the work she completed, not the work required to meet the curriculum of the class.  With this system, S.G. was passing her classes.  After leaving the hospital S.G. went to a non-public school with small classrooms and integrated therapy.  She felt comfortable in this environment and did much better in school.  However, the school system does not believe S.G. qualifies for special education services basing this argument in part on her passing grades.  The school is refusing to pay for the private school.  The hearing officer and the U.S. District Court ruled for the parents.  The school system appealed to the 4^th Circuit.  Currently we are awaiting an oral argument date.  The Council for Parent Attorney and Advocates were also on the amicus brief. 

Bd of Ed v. Michael R. (7th Cir., Amicus Brief filed on Feb. 2006)

Whether an 18 year-old student with Rett Syndrome should be given FAPE in a self-contained classroom, and were her parents given a meaningful opportunity to participate in the development of her IEP.

Mr. I., et al v. Maine School Administrative Dist .   (1st Circuit, Amicus Brief filed on August 2006)

Question.  Whether the school's limited definition of "adverse effect" on education was too narrow as applied to a child who has Asperger's and a depressive disorder but does well academically [the school refused to provide services but both the hearing officer and U.S. District Court found the child eligible for special education services]

Arlington Central School Dist. v Murphy (U.S. Supreme Court , Amicus Brief filed on March 2006)

Question. Whether IDEA authorizes payment of expert fees to parents who win special education cases in court [Case brought by parents to force a N.Y. public school district to pay for their son’s special education at a private school.) [decision]

Employment

See, Bates v UPS under ADA 

Housing

Garcia v. Brockway & Thompson v. Gohres (9th Cir. Amicus Brief filed January 26, 2008) (Argument set for March 2008)

Question: What is the proper application of the Fair Housing Act’s statue of limitations in design and construction cases?

In 1988, Congress amended the Fair Housing Act to require that new multifamily housing be designed and constructed to be more accessible to individuals with disabilities. However, voluntary compliance with the accessibility requirements has not been good, and thus private enforcement actions have been the primary method of enforcement. In its September 20, 2007 decision, the 9th Circuit Court of Appeals held in the consolidated decisions in Garcia v. Brockway and Thompson v. Gohres that private lawsuits to challenge violations of the Fair Housing Act’s accessibility requirements had to be filed within two years after completion of construction. On January 7, 2008, the Court vacated its September 20, 2007 decision and agreed to have the entire 9th Circuit reconsider the case. The Amicus Brief filed by 7 fair housing and disability rights groups (including NDRN and the Nevada and California P&As) and 3 law professors argues that when the language of a statute is susceptible to more than one interpretation, courts should adopt the interpretation that is most reasonable in light of the text, structure and purposes of the statute.

Immigration

Korneenkov v Mukasey, (5th Cir. Amicus Brief filed 2-20-2008)

NDRN, the Mississippi and Louisiana P&As joined in an amicus brief written by the Texas P&A and two law professors in an immigration asylum appeal on behalf of two individuals with disabilities including intellectual disabilities from Russia. Under U.S. immigration asylum law, individual must show they are in a protected class and that they have a well-founded fear of persecution. The amicus wrote in support that the individuals were both members of a “particular social group,” Russians with intellectual disabilities. The amicus provided the court with information about the history of discrimination against people with disabilities, particularly intellectual disabilities in Russia.

Medicaid - Durable Medical Equipment

Lankford v. Sherman (8th Cir.,Amicus Brief filed on Dec. 2005)

Question. Whether under Federal Medicaid law and regulations, durable medical equipment (DME) is a mandatory service that must be available to Plaintiffs.[Decision]

P&A Access

OPA v. Hartford Bd of Ed (2nd Cir., Amicus Brief filed on Sept. 2006)

Question. Whether the Dist. Court correctly held that P&A has a right to access parent & guardian info for students and to access to school facility, pursuant to PAIMI & PAIR. [ Dist. Ct found FERPA pre-empted by PAIMI.] [DOJ amicus supporting P&A access] [Decision dated 9-15-06 ]

Disability Rights Wisconsin, Inc. v Wis Dept of Pub Instruction (7th Cir., September 2006)

Question: Whether an elementary school can deny a P&A's request for names of parents of students who had been illegally secluded in school because the P&A had not obtained permission from the student's parents/guardians.   [Decision dated 9-15-06]

Autism Society of Michigan and Michigan Protection and Advocacy Services v. Fuller, (6th Cir.)

Question: Whether the P&A has associational standing on behalf of students with disabilities who are at risk of seclusion and restraint by local school district officials to seek injunctive relief to force the school district to adopt appropriate polices and procedures on seclusion and restraint and train school personnel.

OPA v. Kirk (2d Cir. Oct., Amicus Brief filed on 2005)

Question. In connection with the investigation of patient deaths at a State hospital, whether the Connecticut P&A has a right to access to peer review records under PAIMI.

Iowa P&A, Inc. v. Tanager Place (8th Cir., Amicus Brief filed on Oct. 2005)

Question. (1) the importance of P&A access authority in residential facilities for youth; (2) the constitutionality of the PAIMI statute
[order declaring moot]