By Kevin Fitzsimons Ruth Colker delivers her University Distinguished Lecture.

Poor enforcement hurts impact of disabilities act

Ten years after becoming law, the Americans with Disabilities Act has not lived up to its promise of creating equal opportunity for people with disabilities, according to Moritz College of Law professor Ruth Colker.

In her University Distinguished Lecture Oct. 17, Colker outlined her study of appellate court decisions concerning the ADA, a study that paints a "bleak" picture for those seeking help under the federal statute.

"The language of the Americans with Disabilities Act is filled with good intentions but, unfortunately, despite misreports in the popular media, it has not lived up to those standards," said Colker, who holds the Heck-Faust Memorial Chair in Constitutional Law.

Enacted in 1990, the ADA was designed to protect the rights of people with disabilities in employment, public entities and public accommodations.

Colker's study focused on the employment title of the ADA. Specifically, she looked at federal appellate court outcomes that involved ADA employment-related cases.

In general, she found that plaintiffs -- those who brought suit to protect themselves under the ADA -- did not fare well in federal courts. "My research on the ADA suggests that litigation -- particularly appellate litigation involving employment issues -- has not been an effective vehicle for ADA enforcement," she said.

In examining appellate court cases from 1994 to 1999, she found that between 83 percent and 89 percent of the decisions favored the defendants. In other words, those who claimed discrimination because of disabilities won fewer than 17 percent of the cases on appeal. This included all cases Ñ those in which the defendants prevailed in the original trial court and those in which the plaintiff prevailed.

It is particularly surprising that ADA plaintiffs are losing on appeal even when they won in the original trial court, Colker said, because the rules of law are biased toward affirming lower court decisions.

"Despite this bias toward affirmances on appeal, plaintiffs are losing their ADA cases on appeal at an astonishing rate," she said. "The high rate of reversal of pro-plaintiff trial court judgments suggests a hostility to ADA plaintiffs by the courts of appeals rather than poor litigation judgment by plaintiffs."

Colker said that if the ADA were consistently enforced, plaintiffs would likely do better in court as time went on because plaintiff lawyers would learn which cases have the best chance of success based on previous court decisions.

However, she said appellate and Supreme Court decisions "have been a moving target for the plaintiff bar, but that target has only been moving in one direction -- a pro-defendant direction."

Compounding the problem is the fact that Congress has been unable or unwilling to amend the ADA to make its legislative wishes stand up in court.

"Despite some wonderful language with tremendous potential to assist plaintiffs, we have seen a consistent line of decisions which moves the statute in a pro-defendant direction with little chance for legislative correction.

"We pride ourselves on our system of checks and balances, and separation of powers. The ADA story that I'm telling today may reflect what happens when the system of checks and balances is not working sufficiently well."

However, Colker found some factors that did seem to help plaintiffs if their cases made it to appellate courts. Plaintiffs were more likely to have positive outcomes if they prevailed at the original trial, if they alleged discriminatory demotion on their job, or if they had specific types of impairments. (Those who had diabetes or who had impairments of their arms or legs, such as arthritis or amputated limbs, had more favorable outcomes.) Plaintiffs also did better if the Equal Employment Opportunity Commission filed an amicus (friend of the court) brief on their behalf.

The best predictor, however, appeared to be in which circuit court the lawsuit was heard. "Unfortunately, my data can give little help to plaintiffs' lawyers in trying to predict what types of cases to appeal because the circuit in which they are litigating is rarely a factor within their control," Colker said.

But the bad news doesn't end with the poor treatment of ADA claims in the appellate courts. Colker said the adverse results with the ADA may have hurt the enforcement of another, pre-existing statute designed to help people with disabilities: Section 504 of the Rehabilitation Act. This statute prohibits discrimination on the basis of disability within entities that receive federal funds. The language of Section 504 was used as a blueprint for enacting the ADA.

However, the passage of the ADA has resulted in the "narrowing of rights that had been understood to exist under Section 504," she said.

In appellate court cases decided before 1994 -- shortly after the ADA was enacted -- defendants accused of employment-related discrimination under Section 504 were successful in court 64.9 percent of the time. In 1994 and after, the success rate of defendants jumped significantly, to 87.5 percent.

While the news about the ADA in appellate courts is not good, Colker said there are other avenues open to those who have been discriminated against because of disabilities. Colker said she has heard that mediation rather than litigation has had some success.

"I am increasingly trying to get my students involved in helping to mediate disputes involving accessibility and am hopeful that efforts short of litigation can help attain positive results," she said.

The University Distinguished Lectureship recognizes outstanding faculty at Ohio State, giving recipients the chance to discuss their work with the community and a $5,000 award to support an academic program or project of the lecturer's choice. Colker is using her award to help make the auditorium at the Michael E. Moritz College of Law more accessible to people who use wheelchairs.

OSU promotes community building among faculty

Opportunities for faculty at Ohio State to work together to enhance their teaching have received a boost from a federal grant that will allow the University to expand on pilot projects and create new teaching programs based on faculty interests.

Three such projects already exist under the Ohio State Teaching Enhancement Programs (OSTEP): one designed to benefit early-career faculty, a program in its second year, and initiatives targeting graduate teaching fellows and faculty interested in improving the academic experience for first- year students, programs that began this summer and autumn, respectively.

"What we're doing is adapting a model that brings groups of faculty together both to work on specific problems and to build community across campus," said Alan Kalish, director of Faculty and TA Development (FTAD), which administers the programs.

Miami University is the principal investigator on the grant, and other institutions across the country function as dissemination sites that provide adaptations of the Miami teaching community model. Ohio State will receive approximately $50,000 over three years as a dissemination site under the grant, provided by the U.S. Department of Education's Fund for the Improvement of Postsecondary Education (FIPSE).

If evaluations of the early-career faculty program's first year are any indication, the projects are welcome by faculty at Ohio State. Participants in the first year reported appreciation for a program that so clearly valued teaching excellence, and one described the program as "probably the most efficient and valuable way to achieve my goal to be the best teacher I can."

The early-career group supports teaching enhancement endeavors of eight pre-tenure faculty in different disciplinary areas. Tenure-track assistant professors in their second and third years at Ohio State are eligible to apply for the program.

The graduate teaching fellows program assists select senior TAs in tailoring activities to address specific needs of their departments, with a goal of enhancing the teaching of many other TAs and thus the learning of undergraduate students. Participants are nominated by departments, schools and colleges.

The faculty seminar on the first-year experience promotes structured exploration of the needs of first-year students, current practice in courses many of them take and possible enhancements to the way these courses are taught that would foster connection to the academic enterprise. Invitations were extended by FTAD, the Office of Academic Affairs and the assistant vice president for the First Year Experience to departments that teach large numbers of introductory courses, asking them to select faculty fellows.

The early-career program was supported previously by a Board of Regents grant that enabled its launch last year. The FIPSE grant will allow for 12 iterations of enhancement programs, Kalish said.

"This year's topics will be repeated two or three times, and if they're successful, we will try to institutionalize them," he said. "The programs starting next academic year haven't been determined, but decisions about them will be based on faculty interests and need."

A faculty advisory group will recommend other kinds of community-building faculty groups with a focus on sharing experiences across disciplines and building on the success of others, Kalish said. Topics under early consideration are peer review of teaching and diversity/multicultural teaching.

Participation is likely to be based on a competitive application process, and groups typically will have no more than 10 members to ensure that participants can get to know each other well over the course of the program. The grant money is dedicated to providing professional development funding for participants to pay for travel and registration fees associated with attending conferences and/or to develop programming appropriate to their pursuit of teaching enhancement.

To date, faculty and graduate students from the following units have taken part in OSTEP: departments of economics, political science, psychology, history, sociology, theatre, geography, agricultural, environmental and development economics, chemical engineering, linguistics, microbiology, veterinary preventive medicine, health services management and policy, and industrial, interior and visual communication design; the schools of public health, teaching and learning, and physical activity and educational services; and the College of Engineering.

Faculty interested in current programs or those who wish to suggest other group topics are invited to contact FTAD at 292-3644.

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