WATA Bulletin: Spring 2001

Contents:

New fund will help provide assistive technology for citizens with disabilities
Legal update: Supreme Court puts limits on remedies for state employees with disabilities
Calendar of Events

New fund will help provide assistive technology for citizens with disabilities

Frances E. Pennell, Washington Assistive Technology Foundation

The inability to pay for assistive technology (AT) has been consistently identified by Washington citizens with disabilities as a significant barrier to access. Here and elsewhere, funding of AT is provided through a patchwork of public and private programs, including Medicaid, Medicare, special education, private insurance and vocational rehabilitation. Unfortunately, as most readers know only too well, these programs do not meet the AT needs of many people.

Last year, WATA took an important first step towards addressing the unmet needs of AT users in Washington by establishing a non-profit entity, the Washington Assistive Technology Foundation. The Foundation's mission is to develop new financing arrangements to help people with disabilities acquire needed AT.

The Foundation's first project will be establishment of an Assistive Technology Access Fund to offer consumer loans at affordable rates and on flexible terms for purchases of AT devices and services for use in education, employment and independent living. Depending on the success of our fundraising efforts, the Foundation also hopes to offer loans for modified vehicles and home modifications. Loan applications and materials will be available on the web and at community organizations throughout the state. Other program specifics will be developed with input from stakeholders.

In addition to program design, the Foundation's major challenge during its start-up phase will be fundraising. WATA has generously agreed to support most of the Foundation's start-up expenses through December 2001. After that, the Foundation will be on its own. That gives us about eight months to raise the money needed to cover operational and lending expenses. This is a significant challenge but we believe we can do it.

Indeed, our first award-a $25,000 grant from the Washington Council of the Blind-was approved in March. The WCB grant will be used to address the particular assistive technology financing needs of individuals who are blind or visually impaired. The Foundation also is negotiating an agreement with a non-profit lending institution to provide between $500,000 and $1,000,000 in AT loans and to house the Access Loan Fund during its first year. If this negotiation is successful, we will still need to raise matching funds to guarantee the loans and buy down interest rates. We plan to do so through an active fundraising effort, seeking both public grants and private donations.

Although the Foundation will not be ready to offer its first loans for a few months, the reception from the community has been enthusiastic. We urge readers to help with planning and implementation of the Access Fund by completing the comment form on the web at http://wata.org/foundation (where you can also track our progress) or by calling WATA at 206-685-4181 to request a copy of our mailing packet.

Readers also can contact the Foundation's new executive director, Frances E. Pennell, at 206-523-2172 voice, 206-616-1396 TTY, or at fpennell @seanet.com. The Foundation's address is: PO Box 27109, Seattle, Washington 98125-1509.

Legal update: Supreme Court puts limits on remedies for state employees with disabilities

James Levy, J.D., Research Associate, UW Center for Technology and Disability Studies

Two employees of the State of Alabama who claimed discrimination on the basis of their disabilities sued the state under the Americans with Disabilities Act (ADA) in the University of Alabama v. Garrett, a case heard by the United States Supreme Court.

In its February 2000 decision, the Court held that the Eleventh Amendment to the U.S. Constitution bars lawsuits for money damages under the employment provisions of the ADA (Title I) by individuals on the basis of a state's inherent sovereign immunity, which bars an individual from suing the State unless it agrees to be sued. In recent years, the Court has greatly limited the ability of Congress to override a state's sovereign immunity. Prior case law has allowed Congress to override a state's sovereign immunity if it unequivocally intended to do so, and the federal law in question was legitimately based in the Equal Protection Clause of the Fourteenth Amendment ("No State shall . . . deny to any person within its jurisdiction the equal protection of the laws").

The Garrett Court decided that, although it explicitly intended to do so, Congress did not have valid Constitutional authority in this case. Congress can enact "appropriate legislation" based upon that the Equal Protection Clause, including prohibiting conduct that might not be unconstitutional itself. However, to allow private individuals to recover money damages against the States, there must be state discrimination that violates the Fourteenth Amendment and the remedy imposed by Congress must reasonably target the constitutional violation.

The Court had several reasons for ruling that Congress did not have adequate Constitutional authority in this case. First, the group of "people with disabilities" is so large and diverse that heightened constitutional protection by the Fourteenth Amendment was not warranted.

Second, the Court found that Congress had failed to show an adequate history and pattern of unconstitutional employment discrimination by state governments against people with disabilities.

Finally, the Court held that the rights and remedies of the ADA required too great a burden of proof by employers; and that allowing claims based on unintentional, adverse impacts on people with disabilities was not designed to reasonably target the limited goal of ending disability discrimination.

Four Justices disagreed with the five-member majority. The dissenters argued that Congress had compiled a vast history of "massive, society-wide" discrimination against people with disabilities, including in state employment, and that the Court had evaluated the Congressional record and findings supporting the ADA too narrowly. The dissent also noted that this decision further erodes the purpose of the Fourteenth Amendment, which allows federal power to intrude on state sovereignty to overcome state resistance and hostility towards minority groups.

The implications of this decision are troubling, but it is important to remember the limitations of the ruling. The holding of this case only applies to claims for monetary damages against a state by an individual for employment discrimination under the ADA. Despite this ruling, state governments are still required to comply with the employment provisions (Title I) of the ADA. The obligations of public agencies and private organizations to provide access and accommodation as required under Title II (affecting all 'public entities') and Title III (affecting private 'public accommodations') have not been changed under the Garrett decision. Also unaffected are private sector employers and municipal, county, and other local governments, because sovereign immunity protects only state governments.

In addition, state governments must still comply with their own civil rights laws protecting people with disabilities, including state workers. In Washington, RCW 49.60 gives state employees many of the same protections and remedies as Title I of the ADA, including damages and a requirement of reasonable accommodation.

The Garrett opinion is at www.supremecourtus.gov/opinions/00pdf/99-1240.pdf.

Calendar of Events

Summer Institute 2001

June 25-29, UWCTDS, Seattle
UW Center for Disability and Technology Studies will offer a series of Assistive Technology workshops in June on the UW campus. Workshops can be taken together to earn a certificate ($395) or separately at $75 for each half-day workshop and $100 for a whole-day workshop. For information and registration call 800-841-8345 V/TTY, email uwctds@u.washington.edu or visit the web site at http://uwctds.washington.edu/.

AT Workshops:
6/25 1-4 pm. Technology and Disability
6/26 9 am-4:30 pm. Computer Access
6/27 9 am-noon. Augmentative and Alternative Communication
6/27 1-4 pm. Seating, Positioning and Mobility
6/28 9 am-2:30 pm. Technology for People with Learning Disabilities
6/28 3-4:30 pm. Using the Internet as Assistive Technology
6/29 9 am-noon. Funding for Assistive Technology

RESNA 2001 Annual Conference
June 22-26, Reno, Nevada
RESNA 2001, sponsored by the Rehabilitation and Assistive Technology Society of North America, brings together people who use, develop, manufacture and deliver assistive and rehabilitative technologies. Topic of the Annual Research Symposium is Telecommunications. Information: RESNA, 1700 N. Moore Street, Suite 1540, Arlington, VA 22209-1903, 703-524-6686, info@resna.org or www.resna.org/.

AAC in the Mountains 7th Annual Conference
July 19-20, Park City, Utah
Featured Workshops include: "Autism, AAC and Positive Behavior Support" and "Literacy, Play, and Autism." Information: Creative Communicating, P.O. Box 3358, Park City, UT 84060, 435- 645-7737, aac@creative-comm.com, or www.creative-comm.com/aac00.html.

For calendar updates, visit the Web at
http://wata.org/calendar.htm
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The WATA Bulletin is supported by grant H224A3006 from the National Institute on Disability and Rehabilitation Research, U.S. Department of Education, to the Division of Vocational Rehabilitation, Olympia, WA.