Claims And Issues

ACCESS FROM THE BEGINNING.

Here's a thought from Ron Buliung, Professor at the University of Toronto, that Despite Legislative Progress, Accessible Cities Remain Elusive:

        Disability as an afterthought makes platform and vehicle retrofit an inconvenient, costly necessity. The technical part of this problem can likely be solved with existing technology, like platform gap fillers and bridge plates. Waiting around for disabled passengers to engage in class-action litigation is not an effective strategy.

There's a lot here that I would like to unpack, as they say.

        Some people attend meetings on how to implement access for all people with the attitude that access belongs to the able-bodied, and that people who are not able-bodied have to accommodate themselves to the way things are.  The first thing I draw from the quote above, is that the law has already been written and it says the opposite.

        One such law among many is the Americans With Disabilities Act.  What the ADA says is that reasonable accommodations have to be made for disabled persons by the people and businesses covered by the Act.  People who are not able-bodied do not have to accommodate themselves to the world built by able-bodied people for themselves; rather, the world we live in, our country, the United States of America, must reasonably accommodate the disabled, not the other way around, by including disabled people in making the decisions that rule our lives including but not limited to decisions involving accessibility.

        And the emphasis of the ADA, it must always be remembered, is on reasonable accommodations, not just accommodations for accommodations' sake.  This is not what you would call a zero-sum game in which some win and many lose.  When reasonable accommodations are made, everybody wins – and that's the first point.

        Without being unkind to people who still demand that everyone else must accommodate themselves to things as they are, it is often the right thing to say that the law has already been written, and they lost.  A neutral way to mention this when you are in a meeting where some people express these views is to say that the reason we are in these meetings is to help implement what the law requires.  The law requires reasonable accommodations.  The law certainly does not require anything like preferential treatment (let alone the preferential treatment they are advocating for themselves, still).   (You may not want to add that last part if you want to be completely neutral about it.)

        Now to return to this quote I have input, above.  The second thing it brings to my mind is it reminds me that there are consequences to blocking input and the consequences include cost.  There is usually if not always a greater cost to fix something after it was implemented without input, than by encouraging, even inviting input from the beginning.

        Third, those same consequences can also act up front, so to speak.  When the costs of fixing things are really high, we tend not to fix them because the costs are so high.  It is a pretty well-known feature of group dynamics that if the costs will be too great to fix an activity or a decision later, then doing the activity or taking the decision now will effectively kill all opposition now or in the future.

        To be aware of this tactic is to be able to recognize it if and when it occurs.  Here is a suggestion on how to counter this tactic.

• Do not engage.
• Raise your own issues. For example, where the discussion is focused on the general issue of the costs of accessibility to public places,  you can raise the more specific issue of accessibility to restaurants, hotels, and other businesses that depend on the public for their existence.
• People with disabilities also have money. They can either spend their money in public places that make it possible for them to be there and spend their money, or they can withhold their money and go somewhere else that is actually accessible.

In the end, issues of accessibility are often decided by issues of money.  The purveyors of inaccessibility are not the only ones with money, and likely they do not even have most of the money involved in a given situation, something which we would all do well to remind them.

I began this article with a quote from an article by Ron Buliung which was published in an online magazine called The Conversation on January 22, 2024.  Buliung is a Professor at the University of Toronto and The Conversation describes itself as a nonprofit, independent news organization that draws on academics, researchers and other experts to write on topics of interest to the general public, in language that the general public can understand and not in academic jargon:  "We publish trustworthy and informative articles written by academic experts for the general public and edited by our team of journalists."  I am really pleased to have found this site, and by going to the link to the Buliung article above, I hope that you are pleased to find it, too.

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved.

CRUELTY IS THE POINT: ESPECIALLY CHILDREN AND THE POOR IN FLORIDA.

They can't fight back.

The State of Florida's Agency for Health Care Administration reportedly has filed a federal case so that it can kick children off a federally subsidized children's health insurance program when their parents do not pay premiums.

The Federal Centers for Medicare and Medicaid issued Guidance in 2023 that said the opposite.  (As I understand it, Guidance is not binding, but it is a statement by a Federal agency of how it intends to enforce a law.)  Well the Agency for Health Care – Health Care, seriously? – Administration was having none of that, so they filed their lawsuit to be able to stop children from receiving benefits under the program, called KidCare, because the children's parents did not pay the premiums.  This in the context of a program where the parents and children are already poor, which is why the children were signed up for the benefits in the first place.

These reports may not be accurate, but on the other hand, this is Florida under a regime.  So there should be no surprise if the reports are true.

BTW:  In the meantime, Florida is reportedly one of 10 States that have rejected the expansion of Medicaid benefits to poor people.  Call it all Florida Exceptionalism.

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved.

TWENTY NUMBERED ISSUES, TAKE 3 FOR NOW: END DISABILITY DISCRIMINATION.

For the past week, you have received and read about opportunities for Comments on rules to help make Medical Diagnostic Equipment accessible to all people:  The identifier for the Federal government is RIN 1190-AA78, and you can submit your Comments at the Federal eRulemaking website:  https://www.regulations.gov.

The MDE rules proposed by the Civil Rights Division of the U.S. Department of Justice follow similar rules proposed earlier by the U.S. Department of Health and Human Services.  Between them, these Departments will cover most if not all of the State and local governments, hospitals, physicians' groups, and other people that take Federal money, such as from the Medicare and Medicaid programs.

The Department of Justice has written twenty (20) specific invitations on Issues for Comment, within its proposed Notice of Proposed Rulemaking which you can find at Volume 89 Federal Register, pages 2183-2195 and at the Americans With Disabilities Act website:   https://www.ada.gov.

Take 3 of these specific issues to help frame your thoughts for now:

1. The Department seeks

public comment on whether different

scoping requirements should apply to

different types of MDE (e.g., requiring a

higher percentage of accessible exam

tables and scales than accessible x-ray

machines).

Has it been your experience that there is a need for more accessible exam tables than accessible X-ray machines?  (That's what they mean by "scoping requirements":  how many should be required.)   Whatever your experience may be or whatever you may think about this, take their invitation to Comment and tell the Department!

2.           The Department seeks information

             regarding:  The burdens that the rule’s

proposed approach to dispersion may

impose on people with disabilities e.g.,

increased wait times if accessible MDE

needs to be located and moved;

embarrassment, frustration, or

impairment of treatment that may result

if a patient must go to a different part

of a hospital or clinic to use accessible

MDE).

Again, they are looking for information about YOUR experience, not theirs.  And not someone else's theoretical daydreams, but YOUR EXPERIENCE.  Tell them in a Comment!

3. The Department seeks

public comment on this proposal, as

well as any specific information on:

The effectiveness of programs used

by public entities in the past to ensure

that their staff is qualified[.]

Have any experience with or thoughts about whether hospital workers today can operate Medical Diagnostic Equipment so that the equipment is accessible, and so that you receive the kind of good medical examination that you deserve?

How about physicians' staff, what is your experience and what are your insights about them in this regard?

Should job postings, employment applications and job interviews match the new dynamics of operating Medical Diagnostic Equipment and, if so, how?

After employees are hired, will more and better MDE training help?  More and better training on interacting with People With Disabilities?

Whatever your experience, and whatever your insights, once again:  SHARE them in your Comments!

To quote the Civil Rights Division of the DOJ:  "All comments must be submitted on or before February 12, 2024."

SHARE YOUR COMMENTS!

Please read the disclaimer.  This blog article is offered to the public domain to make clear that leaving Comments is cool!

MEDICAL DIAGNOSTIC EQUIPMENT: THE MEANING OF ACCESS FOR ALL.

The Department of Justice as it was run in 2017 withdrew previous attempts to look at whether equipment and furniture in "services, programs, and activities provided by State and local governments and public accommodations, are accessible to people with disabilities."

In 2021, this effort was restored.  The results of a change in approach include proposed new rules for Nondiscrimination On the Basis of Disability concerning Medical Diagnostic Equipment used in or with medical settings for medical specialists to make diagnoses.  The HHS was the first to propose new rules for all entities receiving Federal financial assistance.

The Civil Rights Division of the U.S. Department of Justice is proposing much the same new rules for Medical Diagnostic Equipment to be accessible to all of the public in "the services, programs, and activities offered by State and local governments" and by "public entities," under Title II of the Americans With Disabilities Act.  As the Federal government itself has written in its proposal for these new rules, "there are likely no public entities in the healthcare sector that do not receive some form of Federal financial assistance."  89 F.R. at 2192.

The need for new rules and Standards for Medical Diagnostic Equipment is no longer open for debate, if it ever really was.  What is open for discussion are your own Comments on how these proposed rules and Standards can work best.  Based on information provided by the Department of Health and Human Services and the Centers for Medicare and Medicaid Services, the Department of Justice estimates "that this title II ADA proposed regulation would affect 6,905 public entities."  Id. That's a lot of public entities.

Before you, your family, or anyone you know goes to any medical exams for diagnosis, help make these proposed rules and regs the best that they can be!  You can submit your Comments online at the Federal eRulemaking website, https://www.regulations.gov, with the identifying information "RIN 1190-AA78" which will help the people processing your Comments match them with the proposed rules.  They are called rulemaking for Nondiscrimination on the Basis of Disability; Accessibility of Medical Diagnostic Equipment of State and Local Government Entities.  To read them, you can internet search that name, or if you prefer to search with a cite, you can input 89 Federal Register 2183-2195, or last but not least, you can check out the notice of this proposed rulemaking on https://www.ada.gov.

Comment now!  The Civil Rights Division is waiting to hear what you've got to say.

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved.

PERFECTION IS NOT REQUIRED. "REASONABLE MODIFICATIONS": THAT'S WHAT'S REQUIRED.

He rolled into the examination room in his wheelchair.  There he stayed for the whole exam, in his wheelchair, while his doctor listened to his heart and lungs, looked inside his ears and throat, and then announced:  "I assume everything below the waist is fine."  The doctor was done with his exam.

          She rolled into the examination room in her wheelchair.  With the help of her doctor's staff, she transferred to a standard exam table but the staff had to stand by to make sure she did not fall off, as the table did not have guardrails.

          These are experiences reported to the National Council on Disability.  They are a big part of the reason that the Civil Rights Division of the U.S. Department of Justice is proposing to overhaul rules and adopt Standards for the use of Medical Diagnostic Equipment or "MDE."

          These and similar experiences are also a big part of the reason that the U.S. Department of Health and Human Services proposed new rules last September that would apply to healthcare providers that take Federal money like Medicare and Medicaid.  The DOJ and the HHS are operating in tandem, together.

          Perfection is not required under any of these proposed rules and Standards.  "Reasonable modifications" are what they require, and what Title II of the Americans With Disabilities law requires.

          Share your own experiences, and your thoughts and ideas.  You can Comment on the rules proposed by the Civil Rights Division and the Department of Justice on the Federal eRulemaking website:  https://www.regulations.gov, writing "RIN 1190-AA78" on your Comments so that they are sure to match up with these proposed rules.  You can find the proposed rules at https://www.ada.gov, or by internet searching "Nondiscrimination on the Basis of Disability:  Accessibility of Medical Diagnostic Equipment of State and Local Government Entities" (the HHS rules apply to providers who receive Federal funds, while the DOJ rules will apply to State and Local Government Entities), or if you prefer citations, at 89 F.R. 2183-2195.

          Share your Comments!  Tell them what you have lived through and what you think! 

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved.  

MAKING YOURSELF HEARD WITH COMMENTS ABOUT YOUR EXPERIENCES.

The "stakeholders" made themselves heard for years.  They told the Architectural and Transportation Barriers Compliance Board ("Access Board") what they thought about technical standards for Medical Diagnostic Equipment before the Access Board published Standards for that Equipment.  The last time Standards were published was 7 years ago, in January 2017.

         Since then we have examining tables that are too high for disabled people to climb up on in order to get a medical examination by their doctors.

         We have examining chairs that some ophthalmologists use in examining diseases of the eye – except that they cannot examine the eyes of disabled people who cannot get in ordinary exam chairs without reasonable modifications.

         And we have so many other features of Medical Diagnostic Equipment that were not made for Disabled People.  But they were supposed to be, if Title II of the Americans With Disabilities Act has any meaning.

         The new rules proposed by the Civil Rights Division of the U.S. Department of Justice do NOT require your doctor to purchase all brand-new equipment to accommodate the Disabled.

         Like the rules previously proposed by the Department of Health and Human Services for all health care providers that take Federal money, only "reasonable modifications" are involved here.  Reasonable modifications – that's what Title II of the Americans With Disabilities Act requires.  And that's all that the rules proposed by the Department of Justice for State and local governments and by HHS for takers of Federal funds would require too:  Reasonable modifications.

         This time, don't leave it up to the commercial "stakeholders" to Comment on Medical Diagnostic Equipment.  Share your own Comments with the Civil Rights Division and the Department of Justice – they're waiting for your Comments!

         You can submit Comments at all hours of the day and night at the Federal eRulemaking website:  https://www.regulations.gov, putting "RIN 1190-AA78" on your Comments so that they can be identified with the proposed rules you want to Comment on.  And here is a link to the Notice of Proposed Rulemaking by the Department of Justice:  https://www.ada.gov.  You can also find the proposed rules by internet searching "Nondiscrimination on the Basis of Disability:  Accessibility of Medical Diagnostic Equipment of State and Local Government Entities," or if you prefer to enter citations in your browser's search bar, you can find the proposed rules at 89 F.R. 2183-2195.

         Thank you for your leaving a Comment!

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved. 

PUTTING THE SQUEEZE ON DISCRIMINATION ON THE BASIS OF DISABILITY.

The Centers for Disease Control and Prevention estimates that approximately 61 Million adults have a disability in this country, and that 13.7% of them have a mobility disability,  including serious difficulty walking or climbing stairs – but also including serious difficulty in getting a medical diagnosis or a dental exam or an eye exam.  That translates into more than 8.5 Million adults with a mobility disability.

        The Civil Rights Division of the U.S. Department of Justice is proposing to revise its rules, alongside rules previously proposed by the U.S. Department of Health and Human Services, in an effort to make Medical Diagnostic Equipment as accessible as possible to Persons With Disabilities.

        Their notice of proposed rulemaking is available at https://www.ada.gov, or by internet searching "Nondiscrimination on the Basis of Disability:  Accessibility of Medical Diagnostic Equipment of State and Local Government Entities," and for the citation-minded, at 89 F.R. 2183-95.  (This isn't just about State and Local Government Entities.  It's about you.  Remember that Health and Human Services is proposing similar rules for various health care providers that take Federal money such as Medicare and Medicaid.)

        Medical Diagnostic Equipment (or MDEs, the people writing these rules work in Washington, D.C., remember) is equipment used in or together with medical settings for the purposes of medical diagnosis by health care providers.       

        Examples of this definition may help to make it clear.  Medical Diagnostic Equipment includes:

• Medical examination tables.
• Examination chairs (including for eye exams and for dental exams).
• Weight scales.
• Mammography equipment.
• X-ray machines and other radiological diagnostic equipment.

      Have you or anyone you know ever had difficulty getting on a medical exam table because of a disability?

      Or having your weight taken at a doctor's office?

       Or had trouble with a mammogram (notoriously difficult to encounter for everyone), because of a disability?

      If the answer to any one of these or similar questions is "yes," then the people that work at the Civil Rights Division of the Department of Justice want to hear from you!  Think that they are working there because the money is so good?  Not likely.  More like they work there because they want to work on rules like these.

      Even if they didn't want to listen to you, they have to.   It's the law that they are required to read every single Comment.  So Comment about your own experience or that of your friends, neighbors, and family.  The people at the Civil Rights Division want to know about your personal, lived experience along with the data and briefs and memos paid for by others who are sure to Comment.  Add your voice and your experience.

      Make the resulting rules true because the rules take account of true experience.

      You may submit any and all Comments on the Federal eRulemaking website at https://www.regulations.gov, making sure to put "RIN 1190-AA78" on them so that your Comments get hooked up with the proposed rules that concern you.  The deadline for submitting Comments is February 12, 2024.

      And remember:  The United States Department of Justice, through its Civil Rights Division, invites your Comments.  Take them up on it and Comment!

Please read the disclaimer.  ©2024 Dennis J. Wall.  All rights reserved.

NONDISCRIMINATION ON THE BASIS OF DISABILITY: CIVIL RIGHTS DIVISION'S PROPOSAL.

The Civil Rights Division of the United States Department of Justice has issued a Notice of proposed rulemaking about Nondiscrimination against Disabled people, which has been officially published at 89 Federal Register 2183 (Friday, Jan. 12, 2024).  Here is the pdf format:  Download Notice of Proposed Rulemaking Civil Rights Division Dept of Justice Nondiscrimination on the Basis of Disability (Jan. 12 2024).

All Comments must be submitted on or before February 12, 2024.  I intend to submit a Comment or two, never having been shy about expressing my opinions, like most people in the United States.

It's quick.  My Comments and yours do not need to be written for lawyers.  Quite the opposite.  Just write your Comments for people.  If you have personal experience to share, please share it.  In any case, feel free to share your thoughts and points of view about the many subtle forms that even well-meaning decisions bring discrimination against the disabled as well.

It's easy.  AND they are required by law to read your Comments!  It doesn't get any better than this.

You may submit Comments, identified by RIN 1190-AA78, on the Federal Rulemaking Website at https://www.regulations.gov.  Just follow the website's instructions for submitting Comments.  No worries.

Besides finding the Notice of Proposed Rulemaking in the officially published Federal Register, you can also find this "NPRM" as the people in Washington, D.C. call it at https://www.ada.gov.

Comments are good!

GO FORWARD

Please read the disclaimer.  This article ©2024 Dennis J. Wall.  All rights reserved.

ANTI-CATHOLIC DISCRIMINATION AT THE BORDER?

The treatment of immigrants at the border is not completely understood but it is well-known to be bad. Many if not most of the immigrants are Catholic. Are they being discriminated against because they are Catholic?

Centuries ago this country gave shelter in some places to the “Know Nothing Party.” The Know Nothings hated immigrants and minorities, and just about anybody that was not white. They made some exceptions to their hatred of people who were not white, though.

They reserved a lot of their hatred in particular for Catholics.

It deserves asking again, then: Are the actions of the occupiers of the current federal government unjustly discriminating against immigrants because they are scared of Catholics?

The Know Nothings ride again. On the same hatreds.

Download CI 07.22.19.

Please Read The Disclaimer. ©2019 Dennis J. Wall. All Rights Reserved.

NEW COMMENTS DEADLINE ON SEX DISCRIMINATION IN EDUCATION! PLUS SUMMARY.

The Federal Government just extended its deadline for comments on its proposed Sex Harassment in Education regulations until January 30, 2019!  Take this as a good sign and leave your comments now at www.regulations.gov.  If the people speak, then even the current Administrative State has to listen by law.  Speak up, leave your comments on Sex Harassment in Education now!

We have been looking at comments since January 25, 2019 through articles posted from time to time since then down through today, January 28, 2019 on Claims and Issues Blog and on Claims and Bad Faith Law Blog.  To summarize them all for ease of reference, we have reviewed comments that:

1. The Department of Education does not have authority to change the statutes Congress voted into law which is what the Department proposes to do with these changes,
2. The proposed new standard of liability which would be imposed on a claimant in order to make a case for sex discrimination in education is so hard to meet that it is inconsistent with the Congressional prohibition in the first place,
3. Not only the Department of Education, but all Federal agencies need to have every tool in their toolkits that they have now in order to enforce the Congressional prohibition on sex discrimination, including in the rare case as it happens, of seeking damages from sexual harassers in education,
4. Keeping the law in place that concerns "religious organizations with contrary religious tenets" having to say how prohibiting sex discrimination is inconsistent with their "religious tenets," instead of letting them keep quiet about this including for example letting them keep quiet during the entire time that they are recruiting students and also not even requiring them to speak before they extend admissions offers, presumably until they get sued if they ever do, and
5. Last but certainly not least, a host of issues with the Department's newly invented Formal Grievance Procedures.

Parenthetically, what is with these people that they have to invent their own justice systems and not use the Courts?  President George W. Bush set up tribunals in Guantanamo from scratch, rather than try the inmates in Federal Courts in public.   Now the Department of Education wants to set up its own tribunals rather than have sexual harassment in education tried in the Courts.  Why don't they want the public to know what they are up to in these cases?  Oh, wait ....

So, make them make it public!  Take advantage of the extra time this extended deadline gives, and leave your comments on Docket ID ED-2018-OCR-0064 at www.regulations.gov.

If you don't do this, who will?

Please Read The Disclaimer.  ©2018 Dennis J. Wall.  All Rights Reserved.

SEX HARASSMENT TRIALS IN EDUCATION ... WHY NOT IN FEDERAL COURTS?

The following article is a combination of comments I left on www.regulations.gov earlier today.  Leave your own comments too!  The Docket ID is on this article, immediately below, and GOOD NEWS!  The Federal Government has just extended the deadline for comments to January 30, 2019!   Take this as a good sign and leave your comments now!

 

January 28, 2019

Department of Education

www.regulations.gov

 

RE:    Comment to Docket ID ED-2018-OCR-0064

          RIN 1870-AA14

To the Department of Education:

This concerns your proposed changes to Title IX regulations that were published in the Federal Register at 83 F.R. 61462-61499.  Your stated authority for them is "20 U.S.C. 1681 et seq., unless otherwise noted."  83 F.R. at 61495.  These particular comments address the Formal Grievance Procedure you have introduced in your new 34 C.F.R. § 106.45, published in 83 F.R. at 61497-99.  There are a number of problems with this new Formal Grievance Procedure.

Your new Section 106.45(a) provides that "[a] recipient's treatment of the respondent may also constitute discrimination on the basis of sex under Title IX."  83 F.R. at 61497.  However I am not aware of any Court that has ever declared that to be the correct interpretation of Title IX.  To the extent that you introduce this idea in your proposed new regulation, it is contrary to the expressed purpose of Title IX.  Section 1681 is the beginning section of Title 20, United States Code, otherwise known as Title IX.  Section 1681 sets the standard for discrimination in education on the basis of sex.  Subsection (a) could not be more clear:  "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]"  This language clearly does not include your proposed education tribunals conducting your new Formal Grievance Procedures.  It is therefore contrary to the statute passed by Congress and, although the law can be changed by vote in Congress, this proposed rewrite of the law cannot be lawfully enacted by a mere administrative agency such as the Department of Education.  Your proposal in this regard is void and cannot be enacted.

You propose a new regulation that "credibility determinations may not be based on a person's status as a complainant, respondent, or witness" in 106.45(b)(1)(ii), published in 83 F.R. at 61497.  Credibility determinations, as you call them, are made all the time in Court by judges and juries based on the bias of the person presenting the evidence.  You did not provide any evidence to support this change.  This change is contrary to the Administrative Procedure Act for that reason and, on its face, it is contrary to law.  It cannot lawfully be enacted and should be withdrawn.

Your proposed new 106.45(b)(iii) requires that certain personnel at academic institutions be given training in "how to conduct an investigation and grievance process, including hearings," among other things.  Yet you do not prescribe what the training will entail nor who is supposed to provide it.  For example, you do not state whether providers of this training will be required to have experience in presenting evidence or conducting hearings in other administrative proceedings.  This proposal too is contrary to the Administrative Procedure Act for that reason and, on its face, it is contrary to law.  It too cannot lawfully be enacted and should be withdrawn.

You propose a new regulatory requirement that academic institutions conducting a Formal Grievance Procedure must give the alleged sex perpetrator "sufficient time to prepare a response before any initial interview."  § 106.45(b)(2)(B), published in 83 F.R. at 61498 (emphasis added).  This is wrong (and unauthorized) policy-making and bad administrative procedure on your part.  As highlighted by the italicized language, your concern is not with the fundamental fairness of any required hearing, but instead you are fixated on the initial interview.  No person accused of misconduct in any other setting is given advance notice that they are going to be investigated for their alleged misconduct.  The alleged perpetrator may elect to be silent or to assert Constitutional rights of one kind or another, or anything in between, but no person accused of misconduct has ever been given rights to prepare for the initial interview of the investigation against her or him.  Your proposal to the contrary in this regard is not supported by any evidence in any case.  This proposal too is contrary to the Administrative Procedure Act for that reason and, on its face, it is contrary to law.  It cannot lawfully be enacted and should be withdrawn.

You propose that your new Formal Grievance Procedures must "provide for a live hearing" for institutions of higher education.  § 106.45(b)(3)(vii), published in 83 F.R. at 61498.  Your proposal does not clarify to institutions of higher education what if any procedures they must provide in the course of their providing for the "live hearing" that your regulation would now require.  Your regulatory guidance is absent in this regard, including to advise institutions of higher education whether any part or proceeding of this "live hearing" is to be kept secret, or whether "live" includes the keeping of a record of the proceedings, or whether these administrative proceedings that would now require a "live hearing" import the Federal Rules of Evidence or any other rules of evidence, to mention only a few examples among many.  This proposal is unauthorized, and it is contrary to law, and should not be enacted.  It should be withdrawn.

You propose that your new Formal Grievance Procedures must "provide for a live hearing" for institutions of higher education.  § 106.45(b)(3)(vii), published in 83 F.R. at 61498.  Your proposal does not clarify to institutions of higher education what if any essential procedures they must follow in the course of their providing for the new "live hearing."  Your regulatory guidance is absent in this regard, including to advise institutions of higher education whether any part or proceeding of this "live hearing" is to be kept secret, or whether "live" includes the keeping of a record of the proceedings, or whether these administrative proceedings that would now require a "live hearing" import the Federal Rules of Evidence or any other rules of evidence, to mention only a few examples among many.  This proposal is unauthorized, and it is contrary to law, and should not be enacted. 

Your proposals regarding new treatment of "evidence of the complainant's sexual behavior or predisposition," also published in § 107.45(b)(3)(vii), are unfounded, unsupported by evidence, and contrary to law.  In particular, "sexual predisposition" is not a valid category of evidence in any judicial or administrative proceedings at this time.  You do not present any evidence to support your rewrite of this category of evidence.  This is bad public policy because the law has always focused on whether an act has taken place and not on whether the person who allegedly committed the act was predisposed to commit it.  This particular proposal also suffers from inequality itself for you did not also make it apply to evidence of the alleged sex perpetrator's "sexual predisposition" to sexually harass other people.  Your proposals in this regard are again contrary to the Administrative Procedure Act, are again substantively contrary to law, are contrary to law applied to facts, are unauthorized, and void.  They should not be enacted.

A judge does not have to explain the basis of her or his rulings on evidence, yet once again also in your new § 106.45(b)(3)(vii), you would require "[t]he decision-maker" at your live Formal Grievance Procedures hearing to "explain to the party's advisor asking cross-examination questions any decision to exclude questions as not relevant."   Your proposal in this regard is contrary to substantive law.  Further, you provide no evidence in support of your proposed change, which is in violation of the Administrative Procedures Act.  The change you propose in this regard is void and should not be enacted.

Your proposed change in the standard of evidence applicable to Title IX proceedings misses the mark completely.  The standard of evidence you propose should apply to Title IX proceedings to determine only whether a person is being excluded from participation in or being denied the benefits of or being subjected to discrimination under any education program or activity receiving Federal financial assistance, "on the basis of sex[.]"  20 U.S.C.A. § 1681(a).  You are not authorized to propose a shifting standard of evidence for determining Title IX claims based on whether the recipient uses the preponderance of the evidence standard, or not, "for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction."  That is however what you propose to do in your new 34 C.F.R. § 106.45(b)(4), 83 F.R. at 61499.  University "code violations" are simply not your concern.  Your concern is strictly with Title IX claims.  Your proposals in question are not authorized and contrary to law.  They should not be enacted.

Similarly, your proposed § 106.45(b)(4)(ii)(C) & (D), 83 F.R. at 61499, would require the academic institution to make a written determination including findings of fact, and conclusions "regarding the application of the recipient's code of conduct to the facts[.]"  (Emphasis added.)  To say again, whether the recipient's code of conduct applies is not your concern.  To say it another way, you are not authorized to impose requirements on a recipient based on its own code of conduct.  Your authority is strictly restricted to the application of Title IX to the facts.  You recognized this yourself in your new 34 C.F.R. § 106.45(a) when you stated at the outset that you were addressing sexual harassment that "may constitute discrimination on the basis of sex under Title IX."  Your proposals that follow including in § 106.45(b)(4)(ii)(C) & (D), 83 F.R. at 61499, are again contrary to the Administrative Procedure Act, are again substantively contrary to law, are contrary to law applied to facts, are unauthorized, are void, and should not be enacted. 

Thank you for your consideration.

Sincerely Yours,

Dennis J. Wall

The Federal Government has just extended the comments deadline through January 30, 2019!  I urge you to leave your own comments on www.regulations.gov.  The Docket Number that the Government wants us to use is at the top of this post.  These comments will be made available today both to the readers of Claims and Issues Blog and to the readers of Claims and Bad Faith Law Blog.

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PUTTING "RELIGIOUS OBJECTIONS" TO SEXUAL HARASSMENT OUT IN THE OPEN.

I left the following comments on www.regulations.gov earlier today concerning the proposal of the Department of Education to enable sexual harassment in education without fear of the Department asking for damages to enforce the law.  You can leave your own comments at any time between now and the end of the deadline on Monday, January 28, 2019.  If you speak up and leave a comment, then by law even the current Federal administrative state is required to hear you.  I urge you to make your voice heard!

January 27, 2019

Department of Education

www.regulations.gov

 

RE:    Comment to Docket ID ED-2018-OCR-0064

          RIN 1870-AA14

 

To the Department of Education:

This concerns your proposed changes to Title IX regulations that were published in the Federal Register at 83 F.R. 61462-61499.  You claim the authority to make these proposals as "20 U.S.C. 1681 et seq., unless otherwise noted."  83 F.R. at 61495.  This comment addresses in particular your proposal to delete existing subsection (b) from 34 C.F.R. § 106.12, published in 83 F.R. at 61496.

Although I have not found any reference to it in your proposed changes, the statute which authorizes religious organization exemptions is 20 U.S.C.A. § 1681(a)(3):

(3) Educational institutions of religious organizations with contrary religious tenets

this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization;...

Although the statute does not speak to how the Department or any other Federal agency is to know in advance whether "the application of this subsection would not be consistent with the religious tenets" of any "educational institution which is controlled by a religious organization," the existing regulations do speak to that issue.  Advance knowledge of an organization's "religious tenets" claim can be determinative of whether Federal enforcers of Title IX's mandate will file or proceed with a Title IX enforcement action.

The regulation you want to eliminate is the regulation which provides that advance knowledge.  It is 34 C.F.R. § 106.12(b).  Subsection (b) provides in full as follows at the present time:

(b) Exemption. An educational institution which wishes to claim the exemption set forth in paragraph (a) of this section, shall do so by submitting in writing to the Assistant Secretary a statement by the highest ranking official of the institution, identifying the provisions of this part which conflict with a specific tenet of the religious organization.

In contrast to the obviously desirable result of preventing unwarranted Title IX enforcement actions to be filed by a Federal agency, thus reducing the respondents' costs and time necessary to defend enforcement actions which might otherwise be unnecessary, you recite that the current regulation is "confusing or burdensome[.]"  83 F.R. at 61482.  This assertion is absurd, in the face of the obviously desirable results that are likely if not certain to follow from the current regulation.  No law should be made including regulatory law which leads to an absurd result.  For this reason alone, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.

Further, you do not support your proposed changes with evidence either that the current regulation "impose[s] confusing or burdensome requirements" or that your proposed elimination of the current regulation would eliminate those unevidenced "confusing or burdensome requirements[.]"  For that reason, i.e., your failure to comply with the Administrative Procedures Act in this regard, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.

Moreover, it does not seem on the face of it that a letter to the Assistant Secretary would ever justifiably be characterized as either "confusing" or "burdensome."  That outcome is inconceivable and, in any case, is not supported by facts.  For this reason alone, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.

Finally, you are mistaken in your seeming belief that the current regulation specifies when an organization needs to make a written statement of the organization's "religious tenets."  The existing regulation does not speak to when.  It speaks to how.  The claim must be "in writing."  For example, the claim cannot be made verbally.  The claim must be made in writing.

The written claim must also identify "a specific tenet of the religious organization."  For example, a written claim based on nothing more than a claim to religious liberty without identifying a specific tenet of the religious organization, would not seem to be nearly enough to assert the "religious tenets" claim.

Nothing about these current requirements of the existing regulation appear to be "confusing" as understood by reasonable persons.  Nothing about them reasonably appears to be "burdensome," either.

For all of these reasons, whether taken separately or together, your proposed change to 34 C.F.R. § 106.12(b) should be withdrawn or if not withdrawn, should be struck down by the Courts.

Thank you for your consideration.

Sincerely Yours,

Dennis J. Wall

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.  Copies of these comments are being published on Sunday, January 27, 2019 both on Claims and Issues Blog, and on Claims and Bad Faith Law Blog.

SEXUAL HARASSMENT SHOULD ALWAYS BEAR A PRICE, IF PERMITTED. PERIOD.

I left the following comment on www.regulations.gov earlier today concerning the proposal of the Department of Education to enable sexual harassment in education without fear of the Department asking for damages to enforce the law.  You can leave your own comment at any time between now and the end of the deadline on Monday, January 28, 2019.  If you speak up and leave a comment, then by law even the current Federal administrative state is required to hear you.  I urge you to make your voice heard!

January 27, 2019

Department of Education

www.regulations.gov

RE:    Comment to Docket ID ED-2018-OCR-0064

          RIN 1870-AA14

To the Department of Education:

This concerns your proposed changes to Title IX regulations that were published in the Federal Register at 83 F.R. 61462-61499.  You claim the authority to make these proposals as "20 U.S.C. 1681 et seq., unless otherwise noted."  83 F.R. at page 61495.  In particular, this comment addresses your proposed changes to Section 106.3 of the regulations, titled Available Remedies, also published in 83 F.R. at page 61495.

Your proposed changes to Section 106.3 of the regulations are not sustainable as a matter of law and as a matter of law applied to fact. 

First, your proposed changes to Section 106.3 would prohibit the "Assistant Secretary" of the Department of Education (i.e., "the Department") from seeking damages in any proceeding to enforce Title IX.  The purpose for which Congress enacted this statute is clear on its face. 

Section 1681, the beginning section of Title 20, sets the standard for discrimination in education on the basis of sex.  Subsection (a) of 20 U.S.C.A. § could not be more clear:  "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]"

There is nothing in the language chosen by Congress to effectuate its purpose that leads to the conclusions you propose as law in your changed Section 106.3, including taking away one of the powers of the Federal Government agencies, which is to seek damages in an appropriate case in order to compel enforcement of the Congressional mandate.  For this reason, your proposed changes to Section 106.3 are not supported either by law or by the law applied to any facts, and they should not be enacted.

Second, as you are aware the Federal Courts are currently instructed to defer to the interpretation given by Federal agencies to the statutes they are called upon to administer.  Your recently suggested interpretation, that Title IX does not allow your Department to seek damages in any proceeding to enforce Title IX, is contrary to the interpretation taken by the Federal Government since Title IX was first enacted nearly 50 years ago.  The existing interpretation is like the statute itself:  If Congress has not affirmatively spoken, one way or the other, about the recovery of damages as a tool in the administrative process of enforcing the mandate of Title IX, then the Department should remain silent itself and not interfere with Congress's own interpretation.  In other words, it is a job for Congress and the Courts, not the Department of Education.

If anything, 50 years of existing interpretation should be given judicial deference over your opportunistically recent one.  For this reason, your proposals to change Section 106.3 of the regulations should be rejected.

Third, your proposals in all of these proposed regulation changes which you published in 83 F.R. from page 61462 through 61499 inclusive, are internally inconsistent.  Your proposed changes would change the standard of liability to "actual knowledge" coupled with "deliberate indifference" in any administrative action brought to enforce the law.   However at the same time you would purport to take away the Department's ability to seek damages.  This is internally inconsistent.  It is also inconsistent with and contrary to the purpose of Title IX, which is quoted above from the statute itself in 20 U.S.C.A. § 1681(a).  For this reason, your proposed changes, including your proposals to change Section 106.3 of the regulations should be rejected as contrary to law and as contrary to law applied to the facts.

For all of these reasons, whether taken separately or together, your proposed changes to Title IX and its existing attendant regulations should not be enacted.  They should each and all be withdrawn or, if not withdrawn, then they should each and all be rejected as contrary to the law and contrary to the law applied to facts.

Thank you for your consideration.

Sincerely Yours,

Dennis J. Wall

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.  A version of this article was previously published at Claims and Bad Faith Law Blog.

THE CURRENT ADMINISTRATIVE STATE CANNOT IMMUNIZE DISCRIMINATION.

This is my second comment on changes to Title IX proposed by the current Department of Education.  The deadline for leaving comments is this coming Monday, January 28, 2019.  You can leave comments 24/7 between now and the end of the deadline at www.regulations.gov.  I am.  You can too.

January 25, 2019

Department of Education

www.regulations.gov

 

RE:    Comment to Docket ID ED-2018-OCR-0064

          RIN 1870-AA14

 

To the Department of Education:

This concerns your proposed changes to Title IX regulations that were published in the Federal Register at 83 F.R. 61462-61499.  You claim the authority to make these proposals as "20 U.S.C. 1681 et seq., unless otherwise noted."  83 F.R. at 61495.

There is nothing in Sections 1681 et seq. of Title 20 that authorizes any of these proposals.  To the contrary, they prohibit the standards you are proposing to govern every form of liability under Title IX.

Specifically, you would require liability for every claim of sexual harassment under any education program or activity receiving Federal financial assistance to depend only on the recipient's (shorthand for our purposes, the school's) "actual knowledge" and the school responded with deliberate indifference.   § 106.44(a), published in 83 F.R. at 61497 (emphasis added).

Your proposed changes would also add a definition of "actual knowledge" which would mean "notice of sexual harassment or allegations of sexual harassment" made "to a recipient's Title IX Coordinator or any official of the recipient who has authority to institute corrective measures on behalf of the recipient," meaning on behalf of the school, in basic and simple terms.  Your proposed new definition is in your proposed Section 106.30.  It is published in 83 F.R. at 61496.

You say that your proposed changes track Federal case law.  See, e.g., 83 F.R. at 61466-67.  You also expressly make the claim that "[t]he Department's proposed regulations significantly reflect legal precedent[.]"  83 F.R. at 61466.  Yet this is not true.

The standard of liability you propose for all relief is the standard of liability limited by Federal Courts to the issue of liability for money damages.  When a claimant in a lawsuit seeks recovery of damages for a violation of Title IX, then the claimant must show that the recipient, i.e., school, had actual knowledge of the alleged sexual harassment and responded with deliberate indifference.  The Federal Courts do not follow that standard when the claim is for injunctive relief or otherwise to compel compliance with the law, in this case with Title IX.  Your suggestion that your proposed changes "significantly reflect legal precedent" is false and misleading.

You do not have the authority to propose regulations that would not further the expressly announced purpose of Title IX which is to prohibit discrimination on the basis of sex in "any education program or activity receiving Federal assistance," purely and simply.  20 U.S.C.A. § 1681(a).  These words were chosen by Congress to express its intent in enacting Title IX.  You do not have the authority either to change the Congressional intent or to change the statute passed by the representatives of the people of the United States in their Congress.

For these reasons, whether taken separately or together, the administrative standards of liability you propose for any and all forms of liability under Title IX, including but not limited to liability under Title IX for any and all forms of non-monetary relief, are inconsistent with Title IX's mandate that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]"  20 U.S.C.A. § 1681(a).

Your proposed standards of liability are therefore contrary to law.

Moreover, you lack the statutory authority to promulgate these standards in any rules or regulations.

As a result, your proposed standards are a nullity.  They should be withdrawn before they are overturned on judicial review.  See 20 U.S.C.A. § 1683.

Thank you for your consideration.

 

Sincerely Yours,

Dennis J. Wall

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.

 

MAKING SEX DISCRIMINATION EASIER WITH YOUR MONEY AND MY MONEY.

This is my first comment against the current administrative state's proposals to immunize discrimination in education  programs and activities funded with money from Federal taxpayers.  You can leave your own comments on these proposals at any time, 24/7, between now and the deadline on Monday, January 28, 2019.  I encourage everyone to go to www.regulations.gov and leave your comments.

January 25, 2019

Department of Education

www.regulations.gov

 

RE:    Comment to Docket ID ED-2018-OCR-0064

          RIN 1870-AA14

 

To the Department of Education:

This concerns your proposed changes to Title IX regulations that were published in the Federal Register at 83 F.R. 61462-61499.  You claim the authority to make these proposals as "20 U.S.C. 1681 et seq., unless otherwise noted."  83 F.R. at 61495.

There is nothing in Sections 1681 et seq. of Title 20 that authorizes these proposals.

Section 1681, the beginning section of Title 20, sets the standard for discrimination in education on the basis of sex.  Subsection (a) could not be more clear:  "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance[.]"  Section 1681 does not authorize your proposals.

Section 1682 provides that "[e]ach Federal department and agency which is empowered to extend Federal financial assistance to any education program or activity ... is authorized and directed to effectuate the provisions of section 1681 of this title with respect to such program or activity by issuing rules, regulations, or orders" that are "consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken."  Your proposals (1) are not based on any statute authorizing any financial assistance in education; (2) do not even mention any statute authorizing any financial assistance in education, and (3) are not consistent with the achievement of the objectives of any statute authorizing financial assistance in education.  Section 1681 and Title IX taken together is not a single "statute" and even if they were, they do not confer any authorization for any financial assistance in education or otherwise.  Therefore section 1682 is not a grant of authority to you for your proposals, either.

Section 1683 provides for judicial review.   There is no basis to mis-interpret it as a grant of authority to you to make these proposals.

Title 20 of the U.S. Code finishes with these sections: 
§ 1684. Blindness or visual impairment; prohibition against discrimination; § 1685. Authority under other laws unaffected; § 1686. Interpretation with respect to living facilities; § 1687. Interpretation of “program or activity,” and § 1688. Neutrality with respect to abortion.

None of these provisions are statutes that authorize any financial assistance in education or at all.  Section 1685 appears to come closest to conveying authority based on a quick mis-reading of its title, but upon examination what section 1685 actually says is that your authority under other laws is not affected by Title IX.  That clearly is not a grant of authority in and of itself in any way.  Moreover, you do not base your authority to make these proposals on any law other than Title IX.  To quote your proposals again, you base your authority to make these proposals only on "20 U.S.C. 1681 et seq., unless otherwise noted."  83 F.R. at 61495.

To summarize, Congress has not given the Department of Education or any other administrative agency the authority to make the proposals to change the law of Title IX that were published at 83 F.R. 61462-61499.  Put another way, Congress did not confer the authority to the Department of Education or any other administrative agency to change the law of Title IX as these proposals would change it, not under "20 U.S.C. 1681 et seq.," and not under any other statute enacted by the representatives of the people of the United States in their Congress.

Thank you for your consideration.

Sincerely Yours,

Dennis J. Wall

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.

RESIST THE CURRENT ADMINISTRATIVE STATE. COMMENT AGAINST PROPOSALS THAT MAKE DISCRIMINATION EASIER.

They shouldn't be permitted to change laws when they don't have the votes in Congress or in the Courts.

The current administrative state is trying to change the law without Congress and without the Courts.  A good example is any and all of the Department of Education's current proposals to dismantle the law against discrimination in education programs or activities that receive assistance from your Federal tax dollars.

The law is Title IX.  The proposals are published at 83 Federal Register pages 61462-61499.  Monday, January 28, 2019 is the deadline to leave your comment opposing them.

Many people are intimidated when they think about leaving a comment on a Federal agency proposal.  I was intimidated myself before I left my first comment.  The thought of it can stop you from doing it.  Don't let it.

By law, even the current occupiers of the Federal administrative agencies are required to consider everybody's comments before they impose their rules and regulations in final form.  If they don't, then the Courts will make them, at least so far.

So, for these particular proposals here is some information to show you how simple it is to leave your comments:

1. The place to leave your comments electronically is at regulations.gov.
2. Somewhere on your comments refer to these numbers: Docket ID ED-2018-OCR-0064 and, just to be on the safe side, also refer to RIN 1870-AA14.
3. That's it. If they ignore you after that, they intend to.

I will post some of my own comments here so that you can have something to go by.  But do not let my comments get in your way, either.  Remember that my comments, for good or ill as they say, will be comments that are made by a lawyer for that is what I am.  It is enough to say that you are against certain proposals because for example they make it easier to discriminate in education programs that are paid for with your money.  To again be on the safe side, this time take the advice of the Federal Government and mention the specific section or sections of the proposed regulations that your comments address.  This particular proposal is published on the regulations.gov website and you can access it using the Docket ID above.  But if you don't refer to a specific section or sections in your comments, you know what?  The Federal Government is the one making the proposals in the first place, not you.  If the Feds can't figure it out, they shouldn't be proposing changes to the law.

Please Read The Disclaimer.  ©2019 Dennis J. Wall.  All Rights Reserved.