[nfbmi-talk] the ada case against shelterred shops integration mandate

[joe harcz Comcast]

THOMAS E. PEREZ 

                            Assistant Attorney General 

EVE HILL 

Senior Counselor to the Assistant Attorney General 

ALISON BARKOFF 

Special Counsel for Olmstead Enforcement 

ALLISON J. NICHOL 

 Chief 

SHEILA FORAN 

Special Legal Counsel 

ANNE RAISH 

Deputy Chief 

MAX LAPERTOSA 

Trial Attorney 

Max.Lapertosa at usdoj.gov 

Civil Rights Division, Disability Rights Section 

U.S. Department of Justice 

950 Pennsylvania Avenue NW 

Washington, DC 20530 

Telephone: (202) 305-1077 

Facsimile: (202) 514-1116 

 S. AMANDA MARSHALL, OSB #95347 

United States Attorney 

District of Oregon 

ADRIAN L. BROWN, OSB #05020 

adrian.brown at usdoj.gov 

Assistant United States Attorney 

United States Attorney’s Office 

District of Oregon 

100 SW Third Avenue, Suite 600 

Portland, Oregon 97204-2902 

Telephone: (503) 727-1003 

Facsimile: (503) 727-1117 

  Attorneys for the United States of America 

  UNITED STATES DISTRICT COURT 

 DISTRICT OF OREGON 

  Table with 3 columns and 1 rowPAULA LANE, et al, 

  Plaintiffs, 

 v. 

 JOHN KITZHABER, in his official 

capacity as the Governor of Oregon, et al., 

  Defendants. 

           Case No. 3:12-cv-00138-ST 

 STATEMENT OF INTEREST OF THE 

UNITED STATES OF AMERICA IN 

SUPPORT OF PLAINTIFFS REGARDING 

DEFENDANTS’ MOTION TO DISMISS 

Table endI. INTRODUCTION 

The United States respectfully submits this Statement of Interest pursuant to 28 U.S.C. § 

5171 regarding Defendants’ Motion to Dismiss (ECF Nos. 29-30), in order to clarify to the Court 

the proper scope and application of the integration regulation of Title II of the Americans with 

Disabilities Act (ADA), 42 U.S.C. § 12132, to Plaintiffs’ claims of unnecessary segregation in 

sheltered workshops by Defendants. The integration regulation provides that “a public entity 

shall administer services, programs, and activities in the most integrated setting appropriate to 

the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).2 The “most 

integrated setting,” in turn, means one that “enables individuals with disabilities to interact with 

1 Under 28 U.S.C. § 517, “[t]he Solicitor General, or any officer of the Department of 

Justice, may be sent by the Attorney General to any State or district in the United States to attend 

to the interests of the United States in a suit pending in a court of the United States, or in a court 

of a State, or to attend to any other interest of the United States.” 

2 Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, contains an identical regulation 

issued by the Attorney General. 28 C.F.R. § 41.51(d). These regulations have been read in 

tandem to provide similar protections to persons with disabilities. See Olmstead v. L.C., 527 

U.S. 581, 591 (1999). 

nondisabled persons to the fullest extent possible …” 28 C.F.R. Pt. 35, App. B at 673. Based on 

these regulations, the Supreme Court has held that the “unjustified isolation” of persons with 

disabilities by States constitutes discrimination under Title II. Olmstead v. L.C., 527 U.S. 581, 

600 (1999). As authorized by Congress, see 42 U.S.C. § 12134, the U.S. Department of Justice 

enacted these regulations to implement the ADA’s broad mandate to end the pervasive 

segregation of persons with disabilities in all facets of life, including employment, public 

accommodations, and services, programs and activities of state and local governments. See 

42 U.S.C. § 12101(a)(2) (“[H]istorically, society has tended to isolate and segregate individuals 

with disabilities, and, despite some improvements, such forms of discrimination against 

individuals with disabilities continue to be a serious and pervasive social problem.”). Consistent 

with this mandate, the integration regulation, by its own terms, applies to all “services, programs 

and activities” of a public entity, including segregated, non-residential employment and 

vocational programs such as sheltered workshops. See 28 C.F.R. § 35.130(d). Accordingly, the 

Department has interpreted the integration regulation to prohibit the unnecessary provision of 

such services to persons with disabilities in segregated sheltered workshops, in which persons 

with disabilities have little to no opportunity to interact with non-disabled persons. See, e.g., 

“Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of 

the Americans with Disabilities Act and Olmstead v. L.C.” at 3 (June 22, 2011), available at: 

http://www.ada.gov/olmstead/q&a_olmstead.htm. 

As the agency charged by Congress with enforcing and implementing regulations under 

Title II, the Department’s interpretation of both Title II and the integration regulation has been 

accorded substantial deference. See Olmstead, 527 U.S. at 597-98; M.R. v. Dreyfus, 663 F.3d 1100, 1117 (9th Cir. 2011). The Department’s interpretation of the integration regulation must 

be upheld “unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 

U.S. 452, 461 (1997). Accordingly, the United States believes that its views will be of interest to 

the Court in resolving Defendants’ Motion to Dismiss. Furthermore, the United States has an 

interest in ensuring the appropriate and consistent interpretation of Title II and the integration 

regulation. See M.R., 663 F.3d at 1117-18 (“DOJ’s interpretation is not only reasonable; it also 

better effectuates the purpose of the ADA ‘to provide clear, strong, consistent, enforceable 

standards addressing discrimination against individuals with disabilities.’”) (quoting 42 U.S.C. § 

12101(b)(2)). The United States additionally requests that, should the Court hear oral argument 

on Defendants’ Motion, the United States be permitted to participate.1100, 1117 (9th Cir. 2011). The Department’s interpretation of the integration regulation must 

be upheld “unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 

U.S. 452, 461 (1997). Accordingly, the United States believes that its views will be of interest to 

the Court in resolving Defendants’ Motion to Dismiss. Furthermore, the United States has an 

interest in ensuring the appropriate and consistent interpretation of Title II and the integration 

regulation. See M.R., 663 F.3d at 1117-18 (“DOJ’s interpretation is not only reasonable; it also 

better effectuates the purpose of the ADA ‘to provide clear, strong, consistent, enforceable 

standards addressing discrimination against individuals with disabilities.’”) (quoting 42 U.S.C. § 

12101(b)(2)). The United States additionally requests that, should the Court hear oral argument 

on Defendants’ Motion, the United States be permitted to participate.1100, 1117 (9th Cir. 2011). The Department’s interpretation of the integration regulation must 

be upheld “unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 

U.S. 452, 461 (1997). Accordingly, the United States believes that its views will be of interest to 

the Court in resolving Defendants’ Motion to Dismiss. Furthermore, the United States has an 

interest in ensuring the appropriate and consistent interpretation of Title II and the integration 

regulation. See M.R., 663 F.3d at 1117-18 (“DOJ’s interpretation is not only reasonable; it also 

better effectuates the purpose of the ADA ‘to provide clear, strong, consistent, enforceable 

standards addressing discrimination against individuals with disabilities.’”) (quoting 42 U.S.C. § 

12101(b)(2)). The United States additionally requests that, should the Court hear oral argument 

on Defendants’ Motion, the United States be permitted to participate.3 A hearing on Defendants’ Motion is currently scheduled for May 10, 2012. (See ECF 

No. 28.) 

II. BACKGROUND AND SUMMARY OF ARGUMENT 

 Plaintiffs in the instant suit are alleged to be persons with intellectual or developmental 

disabilities who receive, or will receive, employment and vocational services from Defendants. 

(Compl. ¶¶ 1-2, 32, ECF No. 1) Their Complaint asserts that they want to and are capable of 

working in integrated employment settings with appropriate supports and services, known 

generally as “supported employment” services, but have instead been placed in sheltered 

workshops, in which they have little or no opportunity to interact with non-disabled workers or 

learn valuable skills that would assist them in working in competitive employment. (Id. ¶¶ 1-4) 

Plaintiffs allege that this segregation is attributable to Defendants’ systematic failure to provide, 

fund or make available sufficient, integrated supported employment services, in violation of Title 

II of the ADA and Section 504 of the Rehabilitation Act. (Id. ¶¶ 6, 8) 

 The facts alleged in Plaintiffs’ Complaint properly state a claim under Title II of the 

ADA and the integration regulation.4 The ADA was enacted to “provide a clear and 

comprehensive national mandate for the elimination of discrimination against individuals with 

disabilities,” 42 U.S.C. § 12101(b)(1), including, specifically, “segregation” and actions that 

prevent persons with disabilities from “fully participat[ing] in all aspects of society.” Id. § 

12101(a)(1) & (5). Furthermore, Congress found that “the Nation’s proper goals regarding 

individuals with disabilities are to assure equality of opportunity, full participation, independent 

living, and economic self-sufficiency for such individuals.” Id. § 12101(a)(7). The integration 

regulation was designed to implement this national mandate against segregation by prohibiting 

State and local governments from unnecessarily segregating persons with disabilities in all 

programs and services they provide, including employment and vocational services. The 

integration regulation is, therefore, not limited to residential services. 

4 To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), “a complaint must 

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 570 (2007)). “Dismissal under Rule 12(b)(6) is appropriate only where the 

complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal 

theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). 

  In addition, Plaintiffs’ Complaint seeks to have Defendants provide or make available 

those vocational and employment services Defendants already provide in segregated sheltered 

workshops in integrated community settings. Such services would typically take the form of 

supported employment services designed to help persons with disabilities find and maintain 

competitive employment. The Court may properly award such relief if it finds that Defendants 

violated the integration regulation by unnecessarily segregating Plaintiffs in sheltered 

workshops. As a modified form of the vocational services already provided in sheltered workshops, supported employment services constitute appropriate relief for violations of the 

integration regulation. See Townsend v. Quasim, 328 F.3d 511, 517 (9th Cir. 2003); 

Radaszewski v. Maram, 383 F.3d 599, 611 (7th Cir. 2004). Furthermore, Defendants already 

provide supported employment services to some persons with developmental or intellectual 

disabilities, though not to the extent necessary to ensure that all persons with disabilities are not 

unnecessarily segregated in sheltered workshops. (See Compl. ¶ 5) III. ARGUMENT A. Title II and the Integration Regulation Apply to All “Services, Programs 

and Activities” of a Public Entity, and Not Solely to Residential Services_ 

 1. The Broad Remedial Language of Title II 

  Title II of the Americans with Disabilities Act states as follows: 

[N]o qualified individual with a disability shall, by reason of such 

disability, be excluded from participation in or be denied the 

benefits of the services, programs, or activities of a public entity, 

or be subjected to discrimination by any such entity. 

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