A 'special chair' for Jayne Nathanson

When one looks for Samuel Alito's record on disability rights cases, one case turns up in the search engines more than any other: Nathanson v. Medical College of Pennsylvania. The blog Think Progress mentioned it early on. A lot of sites now have this exact sentence:

The court's majority in Nathanson v. Medical College of Pennsylvania (1991) explained that under Alito's restrictive standard for proving disability discrimination, "few if any Rehabilitation Act cases would survive summary judgement."

What that "summary judgement" comment means, in non-legal terms, is that most Rehabilitation Act cases would simply get thrown out of court. The two other judges were castigating Alito for that.

But it was only a harbinger of things to come with disability cases in the U.S. Perhaps Alito was head of his time. But not in a good way.

Aside from being able to tell that the quote is a condemnation of Alito, you don't learn much from it. What was this case about? What did Judge Alito rule, and why? And can this predict his future course?

It's a very very old case, decided by the Third Circuit almost 15 years ago, and brought by would-be medical student Jayne Nathanson under Section 504 of the Rehabilitation Act long before the Americans with Disabilities Act was a law. But much of the ADA was modeled on the Rehab Act, and Rehab Act cases are still being brought against places like colleges that get federal money. So the case is far from irrelevant today.

People for the American Way includes a brief description of the Nathanson case in their "preliminary report" on Alito -- here's an accessible html version of their pdf file. Their outline of the case starts like this:

In 1984 Jayne Nathanson applied for and was granted admission to the Medical College of Pennsylvania (MCP). Nathanson had several discussions with school officials regarding injuries she had sustained in a car accident and the barriers her injuries posed to pursuing studies at MCP. Nathanson asserted that she made clear to school officials that she would need certain accommodations -- chiefly a special chair -- in order to participate in the medical school training, but school officials argued that Nathanson never made her requirements clear. . . (read rest of PFAW analysis on Nathanson)

Several people were kind enough to send me the actual Third Circuit Nathanson ruling; later I learned that the University of Michigan Law Library has put online almost everything Alito has done or said, including his Third Circuit rulings (in PDF format, which, unfortunately, is inaccessible to people who use screen readers). Here's an accessible version of the Nathanson ruling.

I began reading it. It's quite a tortuous case, with a lot of turns and twists. But I found myself returning to the paragraphs describing an Aug. 21, 1986 meeting Jayne Nathanson had with Dr. Andrew Beasley, MCP's Associate Dean for Student Affairs, and Dr. Mary Ellen Hartman, another MCP administrator.

Nathanson stated that she required special parking privileges and seating accommodations in order to study at MCP.... In response, Beasley said that MCP "would do the best it could do to help her." However, Hartman became "extremely angry. . . . She gritted her teeth, her face became red and just at my suggestion ...that I would require something like [that]." ...

According to Beasley, "this was the first time [Nathanson] had indicated in any way that she wanted MCP to do anything for her [by way of] seating arrangements." ... Beasley stated that although he was aware that Nathanson had a problem before this time, he did not consider taking any action to assist her in dealing with it "because it related to medical issues and Mrs. Nathanson stated on multiple occasions that she was pursuing a course of action to deal with these issues, and I would not interfere with what she was doing."

I kept returning to these paragraphs because it seemed to me to indicate an attitude, still prevalent after nearly two decades, that the problems people with disabilities face are medical ones and they are pretty much responsible for taking care of them themselves. And that an elaborate set of procedures and requests and circumstances must occur before an outside entity, like a college or an employer, is required to do anything to "accommodate" the disabled person. And, of course, the disabled person must jump through all sorts of legal hoops to prove they're actually "disabled" and that they're "otherwise qualified."

Realize that people suing for race or sex discrimination do not have to prove "race" or "sex" and you begin to realize the hurdles that face a person who feels they've been wrongly denied an accommodation that would allow them to pursue a degree or to work at a job.

Samuel Alito is one of the many judges in the U.S. who have made it very hard for disabled plaintiffs to even get their day in court.

Note this, for it is the key point: What Samuel Alito wanted to do to Jayne Nathanson was to prevent her from being able to pursue her case against the College. She would never even get a chance to have her day in court, if he had his way.

When a person has their day in court, both sets of facts are presented, usually to a jury, who decides. Anyone who's gone to court knows that of course you can lose. But in this case, and in the vast majority of cases brought by disabled people over what they believe are rights violations, judges tell them they have no right to even bring the lawsuit. In legal terms, the suit is "dismissed at the summary judgement stage." They are turned away and not even allowed to make their case. To many disability rights watchers, it seems like a case of institutionalized discrimination at the hands of our court system.

Samuel Alito would have prevented Jayne Nathanson from having her day in court. The two other judges on the Third Circuit overruled him. But look at the current makeup of the Supeme Court and the ADA accommodation cases they've ruled on, and you see how bad an idea adding Samuel Alito to the mix is.

What did Samuel Alito actually say in this case to make the other two Third Circuit judges say that using Alito's "standard," "few if any Rehabilitation Act cases would survive summary judgement"? He said Jayne Nathanson had not really provided enough evidence to prove that the Medical College of Pennsylvania had failed to accommodate her.

The case is an odd one with a lot of twists and turns, but what I get from reading it all the way through is that Samuel Alito believed that since Jayne Nathanson as much as told college officials at one point that she'd need to defer her acceptance because her injuries were still too severe for her to attend class, that took the College pretty much off the hook when it came to accommodating her. "Her request for a deferral was dictated by health problems that could not have been solved simply by providing a different chair," he wrote. After all, by her own admission she couldn't do the work, he seems to be saying. So don't blame the College for failing to accommodate her! "She did not show that she could have continued attending classes if a suitable chair had been provided," he wrote.

"Her request for a deferral was dictated by health problems that could not have been solved simply by providing a different chair," he wrote.

The next year, when she again talked to College officials about attending, she mentioned she was looking into finding the kind of chair she needed that would allow her to sit during lectures in the lecture hall.

In order to attend classes it will be necessary for me to procure a special chair for lectures and conference. I am in the process of investigating whether lecture hall chairs that I have previously used elsewhere could be modified for use at MCP. I am especially concerned about the physical arrangements for conference and laboratory. In order to have a better idea of what type of installation would be appropriate, I would like to speak with you further.

This letter, and later testimony in the case, Alito says, "does not suggest that it was unreasonable for MCP to continue to rely on her to obtain the chair."

The case becomes very peculiar. As PFAW puts it in their analysis, "after deferring her acceptance, Nathanson applied to other medical schools. The parties also disagreed as to whether Nathanson intentionally misrepresented her relationship with MCP in her applications to other medical schools." The term "ethical" appears in the case a number of times.

But the issue before Judge Alito is not about which side is right. The case is about whether there can be a case at all -- a trial. It's about whether the case is allowed to go forward at all. Can Jayne Nathanson have her day in court to make her argument against the college?

The Disability Rights Education and Defense Fund's Arlene Mayerson estimates that during the 1990s, fewer than 5 percent of ADA lawsuits survived the summary judgment stage. ( Read Drawing Boundaries: The Supreme Court Is Siding With Employers and Narrowing the Reach of the Americans With Disabilities Act. Is That What its Drafters Had in Mind? by  William C. Smith, ABA Connection - ABA Journal, August 1, 2002) And law professor and ADA expert Ruth Colker looks at reasons why most ADA cases are won by the defendants -- that is, the companies that were sued. She too, looks at how many cases get dismissed prematurely.

Jayne Nathanson's case, brought against a college back the ADA was still just an idea in the minds of disability rights activists, is nonetheless very much like lawsuits for accommodation that get filed -- and dismissed -- and appealed -- every day. And some of them will make it all the way to the Supreme Court.

Alito argues in this appeal, like so many judges in the future will say about other disabled people, that Jayne Nathanson has no right to even sue the college. She can't even have her day in court to ask a jury to decide whether the college acted wrongly or not. She doesn't even get to take her case forward

In the final paragraphs of his dissent, I think I can see the same kind of blaming the victim language that one reads in so many rulings against disabled people trying to obtain "reasonable accommodation." It seems to me that a lot of judges take the position of a lot of employers -- and colleges in this case -- that no accommodation is really "reasonable."

Here's Alito:

I simply do not understand what MCP was supposed to have done ... Nathanson had communicated with a chair company about ordering an acceptable chair but had learned that none could be obtained in less than about a month. She presented no evidence that MCP could have obtained this chair from the company any sooner. She presented no evidence that MCP could have quickly obtained a suitable chair from any other source, and any such suggestion is belied by her own apparent inability to find any readier source of supply, although she had assumed the responsibility ... In short, the record is devoid of any evidence that MCP could have reasonably accommodated Nathanson's needs ... Nathanson herself acknowledged in her complaint that there was nothing that MCP could have done at this point to accommodate her needs. ... [She] advised MCP that she could not pursue her studies there because it would not be possible to modify in a timely fashion the facilities necessary for her to attend classes.

In my judgment, Nathanson failed to provide sufficient evidence that MCP acted unreasonably.... MCP should not be compelled to bear the expense and risk of further litigation in this case.

Note that last:

MCP should not be compelled to bear the expense and risk of further litigation in this case.

I've heard others say that Samuel Alito never met a corporation he didn't like. In this very old case, if we think of the College as a corporation, we see it at work here. He seems happy to take their side, protecting them from "expense and risk of further litigation."

And what about Jayne Nathanson? This wasn't about whether she was right or wrong -- it was simply an effort to let her have her day in court. Alito, it seems, wanted very much to deny her that.

Here's the entire paragraph from PFAW about the Nathanson ruling:

In 1984 Jayne Nathanson applied for and was granted admission to the Medical College of Pennsylvania (MCP). Nathanson had several discussions with school officials regarding injuries she had sustained in a car accident and the barriers her injuries posed to pursuing studies at MCP. Nathanson asserted that she made clear to school officials that she would need certain accommodations -- chiefly a special chair -- in order to participate in the medical school training, but school officials argued that Nathanson never made her requirements clear. Ultimately Nathanson deferred her acceptance. The parties disagreed as to whether MCP made adequate efforts to accommodate Nathanson so that she could continue her medical education. The record was further confused by the fact that, after deferring her acceptance, Nathanson applied to other medical schools. The parties also disagreed as to whether Nathanson intentionally misrepresented her relationship with MCP in her applications to other medical schools. Ultimately, Nathanson sued MCP for violations of Section 504 of the Rehabilitation Act of 1973 and for tortious interference with contract. The district court granted MCP's motion for summary judgment – essentially throwing out Nathanson's case. On appeal, a divided three- judge panel of the Third Circuit affirmed the grant of summary judgment on the tortious interference claim, but reversed the district court on the Section 504 claim finding that there were material differences in the assertions of the two sides which required a trial. Judge Alito dissented in part and would have thrown out Nathanson's entire case. He argued that Nathanson had not presented sufficient evidence to show that MCP had failed to adequately accommodate her. In response to Alito's dissent, the majority wrote that "few if any Rehabilitation Act cases would survive summary judgment if such an analysis were applied to each handicapped individual's request for accommodations." 926 F.2d at 1387. (From People for the American Way )

November 14, 2005 | Email this story

 

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Posted by: William Loughborough on November 14, 2005 03:01 PM

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