RIIL Web cast No. 12 August 7, 2002 Presenter: Aaron Mccullough RACHEL: good afternoon, and welcome to the web case on using state laws to protect the rights of people with disabilities. Today's Web cast is the second in a three-part series and this series is designed to help participants really understand what legal avenues are open to people with disabilities who are wishing to pursue claims of discrimination by states or locales. My name is Rachel Kosoy, I'm here at the disability law resource project, which is located at ILRU, and we are your host for today's program. This disability law resource projector we're sometimes known as DLRP, is the new name of what many of you have known us as the Southwest DBTAC, so that's just our new name, same folks, new name. Before we get started, I would just like to recognize the sponsors of this program and review a couple of technical details. So first today's activity is a result of and funded by the commitment of NIDRR, the National Institute for Disability and Rehabilitation Research to make research and information readily accessible to all people who have a stake in the information. And NIDRR funds to disability law resource project, your host for this program. And just a couple of technical things to go over. If anybody out there encounters any problems, technical problems during the Web cast, you can call in for technical assistance and we've got people here who can help you out. The number is (713)-520-0232. And that's both voice and TTY. Next I want to just remind you that we will be taking questions during the Web cast. So to submit a question, if you look at the bottom of your RealPlayer screen or your realone screen, there should be a link there to submit a question or you can always go to your e-mail program and send something to webcast@ILRU.org. Now, I'd like to introduce our speak are for today, Aaron Mccullough, is an attorney with the disability law resource project. Aaron is a former social worker, and he has worked in the interest of people with disabilities for at least 12 years now. And he's currently going for even more education, and is going for a masters degree in political social work. The format of today's presentation is going to be Aaron doing some presenting, but a lot of discussion between Aaron and Vinh Nguyen, who is another legal specialist here at the DLRP. So Vinh and Aaron, thanks for being here today and I'll turn it over to you. AARON: thanks for the kind intro. VINH: thanks, rachel. AARON: at the beginning of this Web cast, I want to thank a few people who intentionally are unbeknownst to them have aided me in this ongoing research project on state laws protecting the interest of people with disabilities, and first of all, Vinh Nguyen, who is my colleague here today who is kind enough to call the square dance and to assist me with discussing some of the more intricate legal issues. In addition, his Web cast on Title II and the eleventh amendment, the ADA and the post Garrett arena, was the first in this three part series and his materials in the actual Web cast have been of immense use to me and are valuable, archived on the ILRU site. Vinh, having handled most of the complex legal issues in that presentation, left me with all the cool stuff, the softball research, and I want to thank him for that. Further, I'd like to thank Brian East who will complete this trilogy this coming Monday, August 12th at another Web cast at 2 p.m. when he presents the Power and Scope of Section 504, the Rehabilitation Act, using it to advocate for your rights as a person with disabilities. His earlier and excellent Web cast also archived on our website, the ILRU website, was the inspiration for this series. I'd also like to thank Diana Hoenig who is a staff attorney in California. And Christina Glenndo who is an attorney, for their interest in and incredible assistance in this research. I'd also like to begin with a warning. We are going to speak in some generalities and I'm going to touch on specifics of state law and recall there are 50 states we're covering and the laws will, of course, not be applicable in all 50 states and are quite unique, in fact. And thus the blessing of some state laws and the curse. And thanks to one participant we're going to be discussing the Washington, D.C. ordinances, but I warn you I have developed no material on the Commonwealth of Puerto Rico, the Virgin Islands or the far western district, so I'm sorry if you're out there calling in. Vinh, you want to say something at this point? VINH: yeah, if you're done with your shout out. AARON: okay. VINH: in the first part of our presentation, we had talked about Garrett and how it affects the ADA in that it limits the incentive for people to use the ADA to seek remedies under both Title I and Title II. We had speculated on Garrett's effect on Title II, but we're not sure if Garrett means that Title II's remedies are now limited to just injunctive relief against the states, you know, rather than monetary revenues, and one of the alternatives that we mentioned in our previous presentation was that people could look to state law to see if they could somehow get some type of monetary remedy out of a state through the state court system. Aaron, could you give me an overview of -- and the audience -- an overview of just what kind of state laws out there that affect people with disabilities? AARON: well, okay, good, thank you for making a smoother segue than I was probably going to be capable of. We are going to be discussing a variety of types of state laws, anti discrimination laws, and we're going to start with omnibus civil rights laws or large scale widely applicable civil rights laws. VINH: comparable to the ADA? AARON: not only to the ADA, but in some constructed much like the civil rights act of 1964. And we're also going to be discussing some stand-alone laws that are known as white cane statutes, even though a significant amount of them don't deal with providing protection for people who utilize white canes or have vision impairments. That's just what they're known as. We're also going to talk about some advocates' efforts at acting within the state to change state law and make it more broadly applicable and protective of people with disabilities, and acting within the state governmental system to increase the effectiveness and enforce ability of the ADA in the face of some of these court decisions. So I guess back to the point, the common thread in our three Web casts is that there have been judicial decisions that have weakened some of the available remedies available under the ADA, and there is a prevailing attitude -- I think vinh put it best -- that states have become emboldened by Garrett to be more defensive and to seek to assert strong sovereign immunity protection when the state is the defendant, when the state is accused of committing prohibitive discrimination as defined by the ADA or other civil rights laws such as the a.d.ea. And at this time we should let Vinh thumbnail quickly what sovereign immunity is as he discussed in more in depth in his last presentation. VINH: as I mentioned in the first presentation, sovereign immunity is the idea that the state is immune to the federal law in the federal court system. Because of the eleventh amendment of the constitution, states cannot be sued in federal court for money, for money damages, unless they give their consent. And in Garrett, the supreme court had to look, as in every rule, there has got to be exceptions, and in Garrett itself the supreme court looked to see whether congress had waived their sovereign immunity for them. Sovereign immunity can also -- actually I'm not sure -- but the states can use the sovereign immunity against their own state laws in case -- AARON: they certainly can. VINH: but I don't know much about how they use their sovereign immunity in their own courts. AARON: that's good, because I'm going to discuss that and that was the heart of some of my research. VINH: to me, that sounds kind of ludicrous that a state would think that it's above its own laws, but they have a right to limit their own revenue should they choose to. I guess that's as best as I can sum up what we had talked about last time about sovereign immunity. AARON: and again, this assertion of sovereign immunity and some other attacks on the enforceability of the ADA, to many, especially those in the advocacy community, is scary. There is pressure being placed by litigation on the ADA. It has been pretty intimidating. One of our roles as a disability technical assistance center has been to relay information to those who ask and information that accurately depicts the state of the law and its enforceability, and this has been increasingly necessary in light of the fact that the popular press has at times had some poor reporting of the impact of the most recent supreme court decisions, and have invoked a lot of fear in the community of people who self-advocate or advocate the interest of people with disabilities. Another task of our technical assistance centers has taken upon ourselves to offer guidance and alternative toss enforcement on the rights of the ADA and why Brian East is going to be coming on Monday to offer his presentation. And this is really important. Consider that as I detailed in my materials, that the U.S. Supreme Court has taken nine cases on the ADA since the year 2000 and five this year. That's a significant amount of cases considering the court probably hears -- I want to say 75 to 100 cases in a year total. Consider also that the -- and that's a big number. They'll take sometimes considerably less. Consider also that there has been a reintroduction in each of the past -- I want to say three legislative sessions of the ADA notification act, and this continues to occur for those who don't recall what the notification act is, it was a proposal supported by a number of congress's concerns and by famous actor Clint Eastwood and the notification law would require that defendant business owners, Title III entities, be given an opportunity to remediate the cause of the complaint for a person with a disability who was discriminated against. Let's just say because of a policy or an architectural barrier, and it would require, again, that a statutory period lapse that allowed for this to occur before this person could bring their case before a federal court. Essentially denying them access to justice until this statutory period had lapsed. Now, of course opponents to this act claims they had 10 or 11 or 12 years notice, but be that as it may, you know, it's clear that to a certain extent the ADA is trouble, at least as it's currently conceived. That this incarnation, and it's a valuable civil rights act is at risk. As I asked in the hand out material what do you do about it if you're someone who cares, if you are among the many disability rights advocates, and I maintain one thing you should consider is using some of the stronger state laws that are available. VINH: now, Aaron, I understand from our last presentation that every state in the union has a similar type law to the ADA. AARON: well, I'd say every state in the union has addressed disability in civil rights in some manner and have done so since the passage of the ADA, if not before. VINH: would you say they were inspired by the ADA or would you say that they wanted to get in line with what's out there in the mainstream? AARON: I would say -- I would say both. In fact, some state law in fact inspired the ADA. And clearly, you know, states tend to pass civil rights laws in response to an effort at increasing civil rights. I mean, some -- but then you get some lagers as well. There are some states that did not pass civil rights statutes until 1990, even in the face of the passage of the 1964 civil rights act. But I think it's an accurate statement that a significant amount of states did pass their laws in response to or inspired by the americans with disabilities act. I think most clearly, I think the Indiana state law which is the hoosiers with disabilities act. Federal civil rights laws create the floor or a minimum standard beneath which the conduct of the state as state actors and potential discriminate tores and their citizens are not allowed to fall, and they must at least do as much as the current judicial interpretation of a particular federal rights law requires, but the kicker is though that the state can do much, much more. And they can offer stronger protections and broader applications of those protections. For example, under some state laws, the definitions of coverage are different and the available remedy is different. And under some state law, it's even allowable for lesser governmental entities like cities to pass civil rights ordinances that provide extra protections and I'm most familiar with some of these in texas, and that is the case here under the texas constitution, lesser governmental entities such as counties, which are enormously powerful politically in texas, and cities, are both allowed to pass state laws that provide additional or I mean rather county and city ordinances that provide additional protections for people with disabilities or people of color or in regard to gender. In addition, one of our participants asked me to review some of washington, d.c.'s ordinances and they are in a unique position, so we're also going to discuss that. And I found that an interesting prospect because the last time I studied the function of the washington, d.c. government I think I was a first-grade errand they had not had home rule and I was still playing with plastic army men. So that was some interesting inquiry, and I appreciate the caller who asked me to do some research in that area. VINH: Aaron, when you say that the federal civil rights law creates a floor, which is a minimum standard that all the states must adhere toshings when the states pass their own laws addressing similar concerns, does that mean that all of their laws at least meet this minimum or... AARON: that's a great question actually. VINH: or is it just hasn't been tackled yet? AARON: well, some civil rights laws, both because of construction and interpretation, do fall below the federal standards, at least in part of their application inasmuch as they're not as strong or they don't have as broad a coverage. And that's perfectly permissible because you always have the federal -- you always have the federal protection as a floor. VINH: with sovereign immunity, you know, in the shadow, where people are trying to get a certain amount of remedies, I mean a certain amount of money, and now it's been shown that they're probably not going to likely to be able to sue a state under the ADA for a certain amount of money. Now, it's important that we look to the state and see I guess if the protections they offer is lessening the ADA. I think that's very important to consider. Would you agree? AARON: well, yeah, but they also can offer different protections. The advantages in seeking enforcement in states' civil rights law rather than the ADA are many and they're varied. One advantage may be, you know, nonmonetary, but it may be the locale because you can bring an action in a local state court. Some state laws that offer protections for people with disabilities require that a complaint be heard by a council or a commission that will seek to resolve the dispute between the two parties outside of a judicial setting and for many people without resources to litigate, that might be an advantage, although I'll acknowledge, I'm aware of a situation where that's allowed for incredible half decade stalls in getting some change made in the face of credible evidence of discrimination. But in certain circumstances, it's much more efficient. And another potential advantage is that some of the state laws take an expansive view of who is a covered individual with a disability, and as I detailed in my material, in mm for example, included people with a serious medical condition as a covered individual under their law and as we'll detail more later in the presentation, california, you know, has an expanded view. They don't consider mitigating measures when defining if a person is eligible or an eligible person with rights under the law. VINH: Aaron, can you tell the audience what you mean by mitigating measures? AARON: mitigating measures -- mitigating measures basically refer to any effort, be it medical or prosthetic, therapeutic in some ways that's going to reduce the impact of an impairment. VINH: we're having technical difficulties right now. AARON: for those of you who noticed a gap in the presentation, we've had some technical difficulty and I understand, again, that we're now broadcasting again. So let's back it up just a piece in case we missed this. Vinh had asked me to explain mitigating measures, and as I had gone on probably to dead air, the mitigating measures refer to any therapeutic, property thet particular, medical, treatment that lessens the impact of a disability. Under the Sutton decision, a Supreme Court case in 99 I think -- VINH: yes, in 99. Along with I think Albertson and Murphy. AARON: yeah, a whole line of cases where the Supreme Court considered that there was a positive impact on certain individuals or there could be a positive impact on the use of say aye glasses or a property thet particular leg or a chemo therapeutic agent that would so reduce the negative impacts of the disability or impairment on the individual that they were no longer significantly impaired. This met with a great deal of controversy among advocates for people with disabilities. VINH: because before everybody thought that you were supposed to look at people with disabilities in their uncorrected state to determine whether there actual sli a disability? AARON: absolutely, and in the California law, for example, does that, and it was amended in direct response to the Sutton decision. VINH: so there is some clear language in the California legislation that says that a person must be viewed in their uncorrected state? AARON: yes, certainly. And that, again, we'll discuss that more in detail a little bit later. I'm going to be using to a certain extent part of the California -- half of the big body of California civil rights laws as an example. Additionally, other state laws, you know, that do continue to apply to both private and state actors who discriminate, and still allow recovery of monetary damages that are now excluded under the ADA due to the -- certain monetary damages now excluded under the ADA due to the Garrett decision. So, you know, there are some remedies in some states. Now, I'm not -- I'm going to say that it's the minority of states that do allow for recovery in an employment discrimination case where the state is the employer. But where that law is in force, it's going to be a powerful tool for advocates to still seek to recover monetary damages in that situation. Let's see, do we have any questions from the web, any additional ones? VINH: no, right now we don't have any questions. AARON: I hope everybody is getting a chance to e-mail in. VINH: I haven't received any questions. AARON: or they're so raptured by the presentation. RACHEL: well, one question actually was brought down to my end of the hall by mistake. Let me throw that one in. And that question has to do with can people sue and like pursue some remedies under both state and federal law or do they need to choose and seek remedies under one or the other? AARON: well, actually, that's an interesting question. They can do both. They can pursue remedies understate and federal laws. They can't double recover, but you can bring -- VINH: Aaron, do you know which court they have to go to if they want to do both? AARON: if they want to do both -- well, depending on the state, some states will hear a federal issue if it's tied to a state issue, but often you're going to see that released to a federal court. VINH: and they will often look at a state issue if it's intertwined with the federal issue? AARON: absolutely. VINH: okay. RACHEL: so then what you're saying is that in putting together the suit, they should name all of the different laws. AARON: they certainly can, and it may be -- RACHEL: and even if both laws say you're entitled to 100 dollars because of what happened to you that they could only receive that 100 dollars once? AARON: typically, yes, there is only so much difference between the recovery, but you're not going to be allowed to double recover sort same offense. VINH: if the state were to claim sovereign immunity under the ADA, and this lawsuit had combined both the state law and the ADA, what would normally happen, and Aaron, you can disagree with me if I got this wrong, is that the federal court will kick it back to state court to handle the state law issues; is that right? AARON: I'm going to guess that most federal judges would do that to resolve the state law issue in the face of that assertion. But you know, you're taking me back to the fall of 1997. I think would have been the last time I studied that particular issue. I think the lesson though is you want -- you want to seriously consider both and you don't want -- because you can typically in a federal suit name both, you know, both violations, and there may be some advantages to it, but there may be advantages to merely seeking your state remedy. Again, that is kind of the spirit of this discussion, especially in those states that have, you know, that have no sovereign immunity bar against the state as defendant and typically in an employment situation, you might not even want to mess with the federal court concern. There could be some real advantages just to pursuing your state remedies. Let's see, let's discuss the stand-alone statutes or what again are the white cane statutes. VINH: Aaron, by stand-alone, you mean laws that don't have any equivalent at the federal level or not... AARON: well, they're not part of broader civil rights protections and I think what they are will become more clear as we discuss some of them. But they're nort part of, let's say, the Arkansas civil rights act. VINH: okay, which tackles everything, not just people with disabilities. I understand now. AARON: exactly, so it's a stand-alone law that for whatever reason, you know, caught fire and was passed, and oftentimes they're not really well known. And I think they offer -- they offer some interesting enforcement issues as I think you'll see. Like I said addition to state law protections under broad civil rights laws, many states have these stand alone protections, and many of these laws deal with motorized and pedestrian traffic and its requirement to yield when a person is using a white cane or guide animal, and that's why near a roadway and that's why they're often called white cane statutes. Other laws create criminal penalties for people who deny access to people and their service animals or who injure or harass the service animals. For example, texas, under the ADA, it's a civil wrong to interfere with someone's service animal or to not allow that person and their service animal into your place of public accommodation. In Texas, it's a crime to do so. VINH: when you say a crime, what kind of penalties are we talking about? AARON: you know, it's a class c misdemeanor. It's a fine, but it is a criminal offense. VINH: when you say a fine, obviously the person will have to pay a certain amount of money. The person that's been discriminated against, will he see a dime of that? AARON: typically, no, it's like a traffic offense or some other crime. I mean, of course if someone is injured a service animal, then ear ee going to have to pay restitution and recovery statutes existing understate law. VINH: so the person being discriminated against to the point where it's a criminal offense, they will still have to pursue a civil action if they want to recover some type of remedy, right? AARON: well, I mean, yeah. Or when you think about it, what is the remedy most people in that parallel situation are seeking? VINH: some type of compensation. AARON: is it compensation or I would argue it's not compensation, it's -- the remedy that they seek is for that person to stop discriminating against them and people who are similarly situated, and you know, I hate to say it, but it may be a ticket or a fine is a good tool for that. So that's another reason why these are kind of slippery and divvy think statutes, but they have some value to discuss. However, I don't know anybody who has ever been convicted of this law in texas, and I've discussed this with a number of police officers or police departments in the area as well as the attorney general's office. VINH: well, I don't think most people are aware that some of these laws actually exist. AARON: and I think that's why it behooves interested advocates to look at the array of state laws and a good source -- I gave a link to a disability resource page where you can go to state law sites, including governor's commissions, councils and committees, protection and advocacy organizations, state legislative databases, and I think an opportunity to review some of the laws that may be listed there are available through search engines there would be valuable for advocates because encourage your police department to enforce this law or another set of laws could really improve things. And for example, we have a new law in Texas which allows for the issuance of two different types of disability parking placards, two different colors that basically allow for different parking situations and it's a fairly confusing law and it's a fairly new one. But a local police department with the assistance of our -- of our -- one of our technical assistance staff, Lea Marek, reviewed that law, got the officer to understand how it was enforced, work with him until he developed a policy that he pushed on the rest of the department, and now they've increased the amount of ticket that is they're writing. They've stepped up their enforcement of van accessible only parking, and this has become something of a mission for this officer who was honest in talking to me on the phone, had never considered doing this before, had used his discretion and avoided ticketing most offenders who parked in disabled only parking spaces in the past. A little bit of assistance from somebody who was interested and informed, and now we have a policy that's going to affect a fairly large town outside Houston. Pretty powerful, I think. VINH: we have a question from the audience. AARON: okay. VINH: somewhat relevant to the discussion. Could a person with a disability sue a person who hurts or kills their service animal? The question doesn't say anything about intentionally or negligently or whatever, but do you know anything about that? AARON: well, I'm going to say under Texas law you would be allowed to because we have strong protection laws and despite the fact that a service animal may be more than just property, it is valuable and expensive property. And in most states that would be the case, especially if the person acted with negligence or deliberation in theorien juring or killing of that animal. VINH: but what would the claim be? AARON: what would the claim be? VINH: there is actually a statute in Texas that addresses that? AARON: there is a statute in Texas for somebody who does so intentionally or in a grossly negligent way and in many states there is also. VINH: okay, and what kind of remedies can they get? I mean, I'm assuming that they'll be compensated AARON: actually, I was discussing the criminal law which has huge fines. Now, in terms of recovery, my guess would be -- it would be like any other civil suit for the loss of property. VINH: and, I mean, it's hard to put a price on the value of a service animal. AARON: well, emotional value, but we know that there are experts who can place a value acceptable in evidence on almost anything. VINH: and also I guess the pain and suffering because, you know, a lot of people form an emotional attachment to their service animal. AARON: I don't believe that there is -- I don't believe there is a cause of action in Texas for ien flex of emotional distress. I'm not sure. VINH: even if it's blatantly intentional. AARON: I think that's the case. That's really kind of aside issue. People might consider their civil remedies when they've been -- their civil remedies outside of antidiscrimination laws. You got another question? VINH: we have two more questions. AARON: okay. Why don't we -- do they deal with stand-alone statutes? Why don't we save those. VINH: more on your discussion on where to find some of these resources. AARON: let's ask those -- let's ask those more towards the end and I'll give you a signal for that, but I want to make sure that we do discuss that, and I'm grateful for the audience actually being interested enough to ask. So Vinh, if you could cue me more toward the end, I don't want to get too far afield so as to bore the audience to tears. VINH: you were talking about the stand-alones. AARON: the stand-alone statutes, some other state laws provide for protection specific to one type of activity and thus totally separate from the more omnibus civil rights act. An important one to me in some recent research I discovered was voting a secret ballot. VINH: now, why would someone do that? I can see in the case of -- I guess back in the 60's, you want to a secret ballot for people of different races, but what about a disability? How would that benefit a person with a disability? AARON: everybody else has the right to a secret ballot. That's guaranteed under most state laws. There should not necessarily be a voting official who is often a partisan official assisting someone with that voting, and since the -- just as an equal protection notion, other people without disabilities, typically we're talking about severe vision impairment or blindness or people without those impairments are allowed to and guaranteed a secret ballot, but under federal law, under the federal voting rights law for people with disabilities, they're not guaranteed a secret ballot. They're guaranteed some effort be made toward accessibility in voting, although I would question how effective the law has been. VINH: so a state secret voting law, would that also affect federal elections? AARON: well, since states administer state and federal elections, absolutely. So there are a number of state laws that have required that the state create accommodations for somebody with a wide variety of impairments to ensure that they can have a secret ball o. now, you can imagine -- imagine how this occurs. In Europe, they send voting officials with ballot boxes to people's homes who are invalid and in the states my guess that's not going to occur, but they have in certain states required that counties, for example, who administer voting purchase equipment that allows for a tape play back of the offersing or a braille ballot or an electronic machine that allows for a person with vision impairment to plug in ahead set and listen to and respond electronically to the choices on the ballot. The opportunity to vote in private and to be free from potential influence is an important one, and it confronts, you know, a significant right of citizenship, and I feel very strongly about this and some of these laws are fairly impressive in the absence of good federal law. Another powerful Texas stand-alone law, I think, is the Texas visibility law. And Vinh and I discussed this last night and I had actually found out that it had broader applications than it did. This law establishes that certain accessibility requirements for the construction of state and federally subsidized single-family dwellings be enforced. Essentially that single-family homes and townhomes that were not affected by the federal fair housing act amendments of 1988 will be covered under this law and will be required to have an entrance off of grade or a ramp, certain accessibility provisions such as a wider front door, interior door and access to a bathroom, and some modify-ability, the ability to modify them and make them more accessible later, but this is tied to the construction that is, you know, at least co-funded, enhanced, encouraged with the use of state and federal funding. VINH: with the use of state and federal funding and this is just for construction of new buildings? AARON: this is new homes. New homes. And so for example, Habitat for Humanity receiving some state grant from a state commission, in partial fulfillment of the cost would have to make in Texas this home visitable as the language is used. Basically for somebody using a mobility aid to be able to enter, access the main floor and at least one of the bathrooms and certain other issues, modify-ability, which refers to future modifications will be eased because certain issues and constructions were looked at such as reinforced walls in bathrooms to allow for future grab bars and a few other issues. That's a pretty powerful law, and I think in something however that's vulnerable to not being enforced really well. VINH: well, I mean, once -- last night when Aaron had talked to me about it, I thought there might have been some constitutional concerns. AARON: but no. VINH: now that you've clarified it, now that it's conditioned on federal funding, that those constitutional issues are not as prominent. AARON: well, you and your constitutional issues. VINH: I know. AARON: you know, as detailed in the handout, and not strictly a rights protection notion, many states have added people with disabilities as a protected class within their hate crime statutes. And these hate crime statutes provide sentencing enhancements for someone who is convicted of a crime that targets people with disabilities. And Vinh and I have discuss this at length and there are a variety of approaches. Either it's a separate crime where you target somebody because of race, gender, sexual orientation, disability, age, or with its own set of penalties; or they've add sentencing enhancement where if the prosecution further proves in a sentencing phase that the crime was motivated by animus towards or ease of victim -- or ease of victimization on one of these people within the protected groups, then there is going to be enhancements to the sentencing. For example, convicted of an armed robbery, if you're targeting let's say elderly people, there may be an additional ten years you serve or a mandatory minimum you serve. Now, the reason that I bring this up is where the states have included people with disabilities not always are these laws readily pursued. And that seems strange to me because -- these enhancements are not always readily pursued and the reason it seems strange is because prosecutors tend to go for the jugular. VINH: for a second I was confused myself. AARON: I have been in Texas for a while. I'm not sure if I'm speaking more clearly or less every year. Prosecutors typically go for the most appropriate sentence or the harshest sentence, but there has been some hesitance to use some of the hate crimes laws in certain jurisdictions, and -- VINH: now, you say there are hate crime laws, and I'm guessing, you know, that there are a bunch of states out there who have included people with disabilities in their hate crime legislation. AARON: certainly. VINH: are there that many instances? I, myself, have a hard time that people could have such animosity towards people with disabilities? AARON: well, I mean, I have a hard time believing that most people commit -- that most crimes are committed, but there certainly have been instances of people who target people with disabilities out of animus, but a lot of these laws cover people who are targeted because they're easy or perceived as easier victims. VINH: okay. AARON: particularly elderly, single women, and people with disabilities because they are or they're perceived to be easier marks or easier takes. And this has been construed to meet the requirements in some jurisdictions for sentencing enhancement under hate crime law, and I want to encourage -- advocates are interested in the safety of people with disabilities to encourage the prosecutors in their areas to use these enhancements. Because a lot of these laws include issues surrounding sexual orientation, I think may explain some of the hesitation because there are some concerns about the way some of these laws are written in their enforce built has caused some hesitation, but I think for the most part they're good law and certainly advantage the community of people who want to be safe from crime. I find it remarkable that after law school I find myself on the side of law and order more so than before, but I do like the way these laws work because there is just something, I think, more offensive about a crime that targets a particular class of people because of a trait that they have. VINH: you know, we've talked quite a bit about stand-alone laws by the states. I want to steer this discussion back to the things that are covered by the ADA, areas that are covered by the ADA that might also be covered by state law. AARON: we're going to get into that real quick. I know we're coming up against the wall. I also want to mention however that there are also state laws that have some tax advantages for people with disabilities. I think while it may be perceived as somewhat paternalistic, I think the realities of the ien equity in the system of employment, distribution of wealth between people with disabilities and the community of people without disabilities VINH: so when you say tax advantages, are states giving tax preferences to people with disabilities merely for the fact that they have a disability? AARON: well, it's typically -- we're not talking about income tax, we're talking about ad valorem or property tax. VINH: Texas doesn't have an income tax, but there are many states that do have an income tax. Are there any -- AARON: well, I'm unaware of any state that provides preferences for -- well, that's not true actually. VINH: I know the federal income tax gives preferences to people with visual disabilities. AARON: there are some laws that do, but I'm not talking about income taxes per se. VINH: okay. AARON: I'm touching upon this ad valorem tax or property tax because I know VINH: do they mean the same thing? Ad valorem and property for the audience? AARON: yes, they do. We're talking about real property here typically. And a lot of people haven't taken advantage of this and I think it merits mentioning because anything that reduces the tax burden, and in Texas it's fairly significant because of the lack of income tax, property tax is fairly expensive and what the enhancement in Texas and most other states does or the law in Texas is reduce the taxable value of the property by a set amount, but you have to register with your taxing authorities, you know, typically the county or a school district or in Texas utility districts, and make sure that they have your application on file and they approve you. You're generally looking at a procedure no more complicated than getting approved for disabled parking tags or hang tags, and in terms of allowing people with disabilities to maintain their home and own their home, I think it's an incredible advantage. Getting back to -- getting back to I guess broader issues, there are some disadvantages and barriers to enforcement that exist when you're trying to use state law to enforce the rights of people with disabilities, and I think first there has also been a notion that in matters of civil rights law the federal judiciary is more sophisticated and more likely to take a balanced view, and towards such laws and this is born out of the belief that lifetime appointees do not fear voter retaliation in the next election, so they tend to take a more philosophical view of the cases before them and not one based on popular it polls. Face it, in several jurisdictions, every judge is elected and they are vulnerable. Another disadvantage is that many state laws define disability more narrowly than the ADA. Many state anti discrimination laws only cover people with a physical disability or exclude people with a record of disability or who are regarded as having disability, which is covered under the ADA. A significant number of state laws don't provide for reasonable accommodation specifically dirpb their laws, and some others prohibit the use of jury trials oral how no judicial review of a chicagoings or council review of a claim of discrimination. You know, other state laws exempt large classes of defendants from coverage under the law that the ADA does not exclude, and other states civil rights laws may not allow for enforcement against the state because as we discussed earlier, they reserve sovereign immunity where they a certain sovereign immunity. In fact, a review of recent legislative sessions that I made show the number of efforts at state legislatures to limit all sovereign immunity loop holes or to enforce -- I guess to reiterate the sovereign immunity protections of the states. So many advocacy organizations are not going down this existing state law protection route, and -- VINH: because basically they're running into the same trap at the federal level that states are asserteding sovereign immunity at the federal level also; is that correct? AARON: yes, and there has been a good deal of grassroots movements to work in the state to operate one of two types of changes, and we'll go into that. Essentially to either reduce sovereign immunity, you know, through statute, and an effort in california recently was made, and however it failed in the California assembly, while other efforts which are analoged to the other way that state advocates are pursuing rights, they seek to amend existing law to enhance coverage. Just using California, in the last couple of sessions while an effort to eliminate the bar of sovereign immunity in all issues -- and all protections under the two major civil rights laws, the fair employment housing act and the unrest civil rights act while an effort to eliminate the statutorily the sovereign immunity bar failed, efforts in response to other supreme court decisions such as Sutton passed, and they amended their civil rights laws to enhance coverage to the point wherein many ways the fair employment and housing act and the unrest civil rights act are much more robust protections than the ADA. One of the groups that is behind this effort and seems to be kind of organizing this effort, I detailed in my handout is the ADA watch at ADAwatch.com. That group is tracking efforts to reduce sovereign immunity protections and to amend omnibus civil rights acts within the states, and they're seeking to organize those efforts on line. And I think maybe it's time to discuss some of the things that were done within, you know, within the states that I have observed in the last session. Missouri legislature had an effort similar to -- had an effort similar to the california effort to reduce the strength of their state sovereign immunity law as it would apply to both the Americans with Disabilities Act and state civil rights laws. That effort failed. In a similar effort in opposition to it to strengthen missouri sovereign immunity protections also failed. And so I think you're going to be seeing this kind of battle fought. Like I mentioned, the California law, the sovereign immunity effort failed but they changed the law where they -- I'm going to go down the list because it's pretty incredible actually. In the fair employment and housing act, they defined mental disability as mental or psychological disorder or conditions that limits a major life activity. Not substantially limits as under the ADA. And this applies also to physical disabilities or any physiological disease, disorder, condition or cosmetic disfigure meant or anatomical loss that affects bodily functions that limits, not substantially limits, that reduces the burden of proof that you are a recovered individual in that state. As we had mentioned before under the fair employment and housing act in california, they look at disability viewed in its uncorrected state. Under the ADA after Sutton, we look at mitigated or corrective measures and under the California law, they have defined what limits mean stat torely which means difficult to achieve. And under the ADA, substantially limits has been found to mean unable to perform or significantly restricted in a much more steeper burden when you're trying to prove your coverage. In addition, another issue before the supreme court is what is a major life activity? And certain major life activities under the California law have been stat torely defined, such as working as a major life activity. And under the law, one may be limited in their ability to work if they are bared from a particular employment. However, under the ADA, you must prove that you're bared from a broad range or class of jobs because of our disability. So as you can see, even though they haven't basically opened up the state to the full force of the law, they have provided some enhancements and had some successes in the state legislature in enhancing the rights of people with disabilities. And while the efforts -- while some of these efforts have been successful in California and surely future efforts will be successful in other states, you know, it remains to be seen how successful to me these efforts will be in states with more repressive civil rights attitudes or strong penchants for sovereign immunity. Arkansas as opposed to California -- the Arkansas civil rights act is very expansive, and it provides a great deal of protections and specific protections that are absent dirpb the 64 civil rights act and under the ADA and is very generous in its application to every one but the state when the state is a defendant. Arkansas has probably the strongest sovereign immunity protection that I have encountered in discussing it with protection and advocacy attorneys and some people from the attorney general's office, you know, again, this is just -- this is part of a cultural notion, if you will, VINH: so that means in Arkansas it's much harder to sue the state of Arkansas if they assert the sovereign immunity? AARON: it will be much harder to sue the state of Arkansas for violation of these laws and of their own state law and of the ADA. However, you could launch a legislative initiative to turn that around. Because right now, there is a statutory bar within their act. Their act could be amended, in fact, because within the Arkansas civil rights act it says nothing in this act shall be deemed to limit sovereign immunity. The act could be amended to reduce the impact to sovereign immunity and deliver some available remedies when the state is acting in a discriminatory manner. Again, I'm not going to bet on how successful the effort is going to be in every state in the union, but it merits -- it merits looking at as an option. You know, and again, it's note worth that I each state does have some of these laws. Every state has some laws that at least purport to further the rights of people with disabilities and I think often do offer enhanced enforcement mechanisms and a lot of the laws offer agencies or avenues of enforcement that are more readily accessible than the federal counterparts. And I really think -- I believe that this is -- state laws are not going to be the answer for every advocate in every arena, and against every act of discrimination, but in several states, and in several circumstances, there is going to be an appropriate and available remedy and it merits looking at. Now, you had some questions regarding resources on state laws? VINH: yeah, you had previously mentioned in the presentation and also in your writing about the existence of resources. One of the questions asked how can I find out about the existence of any of these state laws in my state? AARON: simple, simple answer to that. There are some people who in every state who are charged with assisting the interest of people with disabilities. And most every state that I'm aware of has a governor's committee, council or commission on the rights of people with disabilities or on the employment of people with disabilities. And many such as our own in texas have a list, key laws that affect people with did yous abilities, for example in texas. A link to which I provided in the materials. Contacting your governor's commission is a good way to start. In addition, contacting your protection and advocacy organization. Every state has -- basically has a public interest law firm that exists to further the rights of people -- of individuals with disabilities and any number of these have engaged in or a part of research efforts to catalog available state protections and to -- in certain cases -- lobby for change at the state level. Such as in our own case, an arm of or a project of advocacy, inc. in this state, which is the disability policy consortium, I believe, actually advocates for change in the state legislature. So those are good resources to locate state law. Absent that, the internet is just a great resource, and using free legal research tools such as find law, or going to other resources available at the link I provided, disabilityresources.org. VINH: okay, I guess on a similar note, we have another question from an advocate, as an advocate, you know, what is the process they should take if they feel the law -- the state law is being violated? And you know, you mentioned about going to a commission. AARON: it depends -- and again, you need to identify what state law is that you believe is being violated, and the mechanism of enforcement. And they do vary greatly. I had mentioned that there are some state laws that don't allow you a judicial hearing, that it has to be dealt with within a commission or committee. And I promised to talk about Washington, D.C. for example, now, Washington, D.C. is not a state obviously, although it's got to population of several western states and Rhode Island, I believe. But they act almost like a state in their state government and their ordinances are fairly robust and they protect the rights of individuals regardless of -- anti discrimination ordinance, prohibits discrimination based on race, color, religion, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, disability, political affiliation. Now, for example, enforcement there though is before a commission. However, if you're aggrieved, you can appeal to a DC district court, unless -- unless the claim is against the state -- or the city government in DC. In which case the mayor or his appointee is going to be the final ash I tore of whether or not you're going to have a remedy. So it's important to look at the mechanisms or the procedures of the remedy. And you should be able to get some assistance on what that is once you've identified the law from your governor's commission. But you must acknowledge of course that they are an arm of the government. So how much assistance you're going to get, you know, is going to vary greatly. I'd say enormous assistance from some and at least some from any governor's commission. And of course you can also contact your protection and advocacy organization. VINH: okay, we also have a number of other questions, but unfortunately they're outside of the scope of our discussion today. Well, a lot of them are. AARON: we want to get to them though, but not over VINH: yeah, I believe that we'll answer these questions, but we'll do it off line. AARON: so expect some e-mails, I'm assuming they have e-mail addresses? VINH: yeah, although one of the questions presented -- I'm not sure about the scope, but we haven't talked as much. Earlier, I had attempted to steer you back to the area of state laws that cover areas that are also covered by the ADA. AARON: and I danced away from that. VINH: employment, public accommodation, government programs, one of the questions was actually given to us was actually about transportation. Do you know of any state laws that affect accessibility or prohibits discrimination in transportation? AARON: I mean, clearly there are some that would depending on who is providing the transportation. You know, again, this is pretty fact-based. What state and who is providing -- what kind of transportation. Any number of these laws look a lot like the ADA, so even in the face of sovereign immunity if you've got a private provider of public transportation, which does occur, a contractor, then they're vulnerable under those state laws as they would still be under the ADA. But I mean, I'd just have to have more facts. So if that person wants to offer more information via an e-mail, we will get back with them. That sound about right? VINH: yeah. That sounds about right. AARON: well, we've gone over an hour, and unless there are some other questions VINH: I'm trying to read a question right now and trying to comprehend it, but we must respond to this individual by e-mail to clarify the question. AARON: I tell you what, I was really impressed at some of the questions we received that were so detailed. VINH: I believe that -- Aaron, some states -- I mean, some states have I guess state laws that are more expansive than the ADA, but in our next presentation in this area we're going to be talking about the rehabilitation act or not we, but Brian East will, and can you say a little about, you know, what the rehabilitation act does? Does it prohibit discrimination in things that are federally funded. Can you just give a comment on how much of state services or how many things are impacted by federal funding that are also... AARON: an incredible amount of behaviors of the state can be linked to assisted federal funding, and again, as a close to this three-part series, while we went a field of the narrower notion that the state is a defendant, a clear cap to this three-part series is a discussion of Section 504 of the Rehabilitation Act. Where you're able to link federal dollars to the behavior of a state in the performance of its duties and the offering of it iser advice es, they are still vulnerable to a host of remedies that, you know, may be excluded under -- because of Garrett or feared maybe excluded because of Garrett. And to be honest, there was a period of time when 504 was kind of ignored and I know Mr. East is going to get into this material and I think if you're looking for alternatives, or you're fearful about the growing limitations or your concerns about the growing limitations of the ADA, it behooves you to attend to this Web cast, two o'clock, man Monday, August the 12th. He's a great speaker. VINH: who will be hosting? AARON: I believe I'm going to be taking Vinh's role in introducing and posting and asking questions of Mr. East. I encourage you all to tune in. VINH: I want to stress to the audience that fear -- that road block of sovereign immunity which may be a road block to the ADA as covered in our first presentation, and also may be a road block to the state laws, you know, sovereign immunity is going to be more shaky when it comes to the rehabilitation act because in order to receive federal funding, a person AARON: you agree to waive sovereign immunity. VINH: a state is supposed to waive sovereign immunity. Now, what Brian East will probably talk about is whether that waiver is valid or not. AARON: but, you know, we don't want to step on his scholarship, but we do want to encourage people to tune in. Rachel, are you going to send us out? RACHEL: yeah, I'm going to send you out. You guys did a really good job. This audience is now much more enlightened about some really potentially powerful resources in state laws. I think a lot of people didn't really know about. So thank you. And today's presentation will be archived as is Vinh's presentation that was the first part of this series. So if anybody wants to go back and tune in to that first one or share this one with somebody who wasn't able to tune in today, that will be available. And I think that Vinh and Aaron have done a good job of letting you know that this series will conclude this coming Monday when Brian East will be presenting on the rehabilitation act. So we would love to have your feedback on today and our series, so if you look on our website, the way that you link to get into the Web cast, there is also a link on that page to fill out evaluations. We would be most appreciative and lastly just want to thank some people who made this possible. Of course as I mentioned before, NIDRR, which funds this Disability Law Resource Project, and this Web cast would not be possible without the efforts of our in-house staff, which includes Marj Gordon, Sharon Finney, Dawn Heinsohn, and Mark Richards, as well as the technical expertise of both Rob Dickehuth and the services of our realtime captioner, Marie Bryant. So thank you everybody. And we look forward to chatting with you again this coming Monday. Take good care. Bye-bye.