Congress Urged to Get Tough on Abusive Police
Los Angeles Times 4nov00

Washington -- Police misconduct remains an ``incessant'' problem in the United States, and the failure to wipe out abuse and brutality requires wholesale changes, such as giving citizens the right to sue renegade departments, the U.S. Commission on Civil Rights concluded yesterday.

The commission, reviewing the progress and setbacks in police reforms of the last two decades, found that better policing has often come ``at a terrible price'' for minority communities, ``which seem to bear the brunt of the abuse.''

Los Angeles and New York were singled out as two major examples of cities that have ``made great strides in lowering crime rates,'' the commission said.

``These departments have not developed into `world class' forces, however, due to lingering concerns over the number and type of police misconduct charges they must address,'' the report's executive summary said.

Among its major recommendations, the report said combatting racial profiling should be given the ``highest priority,'' with departments urged to collect data on race and ethnicity in stops to document the extent of the problem. While some departments have begun collecting such data, others have resisted.

Congress also should outlaw racial profiling, and ``any officer found to have engaged in racial profiling should be subject to immediate dismissal from the police force,'' the commission suggested.

The report also said Congress should change the law on prosecuting police in federal court so that prosecutors no longer have to show ``specific intent'' by an officer to violate someone's civil rights. That standard has made it nearly impossible to win convictions, the report found.

The commission, appointed by the president and Congress, approved its report yesterday on a 5- to-1 vote. It is an update of the commission's seminal 1981 study on police abuse entitled ``Who is Guarding the Guardians?'' The full report will be released publicly in a few weeks.

In the last several years, the commission has held hearings in numerous cities to probe the issue of police misconduct, delivering reports on specific cities where it found problems.

In Los Angeles, for instance, the commission 18 months ago cited civil rights abuses at the Los Angeles Police Department and the Sheriff's Department -- months before the Rampart scandal shook the LAPD with evidence of police corruption. That scandal triggered an agreement this week between the city and the U.S. Justice Department that gives the federal government unprecedented oversight powers in forcing reforms at the police department.

``We've made a lot of progress'' since the commission's initial report in 1981,'' Commission Chairwoman Mary Frances Berry said in an interview.

Citing Boston and San Diego as ``major success stories,'' Berry said that ``there are places where crime has been reduced and controlled and civil rights problems have not emerged at all. Unfortunately,'' she added, ``this progress has been uneven and is not evident in some of the major metropolitan areas,'' such as Chicago, New York and Los Angeles.

Civil rights groups yesterday applauded many of the commission's latest findings, but police groups questioned the report's conclusions -- and the timing.

``I'd question the motivation of the civil rights commission in putting out their summary four days before a presidential election,'' said Jim Pasco, executive director of the National Fraternal Order of Police, the nation's largest police union. He predicted that liberal groups will use the report's ``inflammatory'' language to portray Vice President Al Gore as a guardian of civil rights because of the administration's efforts in taking on police abuses.

``What the civil rights community has done is to make people believe that there's an epidemic of police brutality and shootings and so forth, when exactly the opposite is true. The numbers are at historic lows,'' he said.

The civil rights commission's findings are advisory in nature, but they carry the weight of a high-ranking panel with a long history of championing civil rights reforms.

COMMISSION'S CALL

• Making it easier for people to sue abusive police officers.
• Greater diversity on police forces.
• The federal government to collect national statistics on racial profiling.
• Better training for officers, perhaps based on models in San Diego and Boston, where crime rates have fallen without an increase in brutality allegations.
• Giving citizen review boards new tools and more authority to investigate misconduct allegations.

Source: Associated Press
The Associated Press contributed to this report.

Sharing the Dream: Is the ADA Accommodating All? (Draft)
Executive Summary source: http://www.usccr.gov/ada/exsum.htm
Index for complete report: http://www.usccr.gov/ada/main.htm

Executive Summary

The U.S. Commission on Civil Right’s (Commission) report Sharing the Dream: Is the ADA Accommodating All? is timely and significant because it comes during the nation’s designated month for recognizing individuals with disabilities and as we celebrate the 10-year anniversary of the Americans with Disabilities Act. 

This report is the product of a two-day hearing conducted by the Commission on November 12–13, 1998, in Washington, D.C.

After providing an historical context for its passage, this report analyzes the goals intended for the ADA and discusses the law’s practical impact on those it was intended to protect, the agencies responsible for enforcing the law, and the businesses it affects. Sadly, the report demonstrates how the Supreme Court’s recent narrow construction of the ADA’s coverage obscures its vision, which was to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. The report also addresses several areas that have generated debate and disagreement as to the proper coverage of the ADA—issues of substance abuse and the coverage of psychiatric disabilities. 

Most importantly, the report provides concrete recommendations aimed at ensuring the ADA’s vision is reached, while recognizing the legitimate concerns of businesses in how the vision is achieved. These recommendations include:

•  restoring the intended vision for the ADA;

• providing adequate resources to those agencies charged with enforcing its provisions;

• enhancing education for individuals and businesses as to rights and responsibilities created by the ADA;

• providing further incentives through the Social Security Administration for individuals with disabilities to return to the work force; and

• providing economic incentives for businesses that make facilities accessible or accommodate individuals with disabilities. 

The Commission hearing was not intended to offer an exhaustive analysis of the ADA, nor is this report. Instead the hearing was, and this report is intended to address some of the significant issues raised by the ADA. 

At the time the Commission heard testimony on the ADA, the Supreme Court had given limited direction on the ADA. Indeed, in the eight years since the ADA’s passage until the time the Commission requested testimony on the ADA, the Supreme Court only decided two cases. Since that time, the Supreme Court issued six decisions, some directly addressing issues discussed by the panelists. This report is limited by what was presented at the hearing, but the Commission would be remiss if it did not address the impact of these Supreme Court decisions on the issues discussed at the hearing. 

Chapter 1: The Road to the ADA

This report first chronicles the move from a medical/charity model for society’s treatment of individuals with disabilities to a civil rights model. Historically, our nation’s disability policies were premised on a medical/charity model where a person’s disability was to be addressed by doctors and other professionals who were to “fix” or “cure” the individual. If they could not be cured then the individual may be entitled to some type of “charitable” benefit. With the passage of the ADA, our nation moved from this medical/charity model to a civil rights model that attempts to provide a level playing field for individuals with disabilities by securing the right of access to, and independence in, all aspects of society. The ADA, which was signed into law on July 26, 1990, is a comprehensive civil rights law seeking to ban discrimination against individuals with disabilities by ensuring equality of opportunity, full participation in government services and public accommodations, independent living, and economic self-sufficiency.

Chapter 2: The Effects of the ADA

The testimony heard at the ADA hearing showed that individuals with disabilities believe that the ADA has made a great difference in their lives. This is reflected by their increased level of participation in mainstream American society, including better access to buildings, fuller inclusion in the community, and greater access to transportation. Since the passage of the ADA, the public is more sensitive to and aware of people with disabilities. Despite this progress, individuals with disabilities still continue to face discrimination and difficulty in overcoming barriers that prevent them from fully participating in mainstream American society particularly in the areas of employment, access to medical benefits, and access to public transportation.

Accommodating All? Acknowledges that the ADA is similar to other laws, including civil rights laws aimed at remedying discrimination based upon unjustified stereotypical beliefs, and has costs associated with protecting the civil rights of those it is intended to protect. Contrary to the misconceptions some had at the time of its enactment, there are not significant costs in complying with the reasonable accommodation provisions of the ADA. While there was testimony about concerns of costly litigation created by the ADA, there was no empirical evidence presented substantiating these concerns. Nor was it shown that there have been a significant number of frivolous cases filed under the ADA. Indeed there was no credible evidence presented that it was any more expensive to comply with the ADA’s nondiscrimination provisions than it is to comply with other civil rights laws aimed at protecting individual civil rights.

One area in which there was substantial testimony at the ADA hearing was the interaction between the ADA and the receipt of Social Security disability benefits. The report concludes that the Social Security Administration (SSA) does not take into consideration the ADA’s requirement of reasonable accommodation in determining continuing eligibility for disability benefits, which can discourage individuals with disabilities from re-entering the work force. Further, many federal disability beneficiaries are not made aware of the Social Security work incentives, which are intended to encourage them to return to work. The Commission’s recommendations in this area are intended to provide additional incentives to individuals who desire to move from reliance on Social Security benefits to be self-sufficient. 

Chapter 3: Judicial Trends in ADA Enforcement

In a series of decisions rendered after the Commission’s hearing, the Supreme Court both obscured the nation’s vision for the ADA as expressed by Congress and refused to give deference to the extensive guidance issued by the federal agencies charged by Congress with enforcing the ADA. These decisions significantly curtailed the coverage of the ADA. These decisions will not only cause unnecessary litigation, but most importantly will also leave many individuals with disabilities intended to be covered by the ADA without legal recourse. For example, based upon the Supreme Court majority’s myopic view of the ADA, individuals who were clearly intended to be covered by the ADA—individuals with conditions like epilepsy, diabetes and cancer—are being denied their day in court. The Commission sees no other recourse but for Congress to reaffirm the meaning and intent of the ADA and to clarify the intended coverage of the law.

The Supreme Court decision in another significant ADA case recognized the conflict in purposes between the ADA and the Social Security Act and held that individuals are not automatically barred from suing under the ADA simply because they claimed an inability to work in an application for Social Security disability benefits. Despite recognizing the difference in purpose between the ADA and the Social Security Act, the court still allows employers to demand an explanation from individuals for the basis of their claim for disability benefits. This, unfortunately, invites continued litigation over this issue.

Chapter 4: Substance Abuse under the ADA

The Commission also heard testimony on the issue of substance abuse and the ADA. The social and economic costs of substance abuse in America are staggering. It is estimated that the cost of alcohol and drug abuse for 1995 was $276.4 billion—$166.5 billion for alcohol abuse and $109.8 billion for drug abuse. The ADA, however, currently does not mandate that private industry offer programs, such as employee assistance programs (EAPs), to assist workers with substance abuse problems. In an effort to curtail these wasted costs and balance the legitimate interests of employers, the Commission recommends that information be made available to employers by EEOC and DOJ on the economic benefits that are derived from establishing EAPs or similar programs. As important as education, the Commission also believes Congress should provide appropriate tax incentives for the establishment of EAPs and similar programs within private industry.

Testimony at the ADA hearing also showed that employers and courts struggle with the ADA’s definition of “current” drug user. This is an important issue because “current” users are expressly excluded from ADA protection. The EEOC’s interpretive guidance and discussion in its technical assistance manual, which requires a case-by-case analysis of “current” use, while helpful, does not set forth any definitive standards under which an employer can make this interpretation. Here the Commission recommends that EEOC, after consulting with stakeholders, offer specific and detailed guidance in defining what is a “current” drug user.

Chapter 5: Psychiatric Disabilities and the ADA

A final area examined at the ADA hearing was the ADA’s coverage of psychiatric disabilities. Those testifying explained that the ADA initially focused on accommodating individuals with physical disabilities, with individuals with psychiatric disabilities largely ignored until discrimination charges based on mental impairments became the largest source of ADA charges filed with the EEOC. At the time of the Commission’s ADA Hearing, the EEOC’s psychiatric enforcement guidance had just been issued. The issuance of these guidelines sparked a national media firestorm highlighted by editorials painting nightmarish scenarios of manipulative substandard employees, headlines such as “employers are terrified” and cartoons of a “nightmare on elm street” type character, as applicants protected by the ADA. As usual, hindsight is 20/20 and these concerns were unfounded. In fact, as the Commission report discusses, employers were subject to almost similar disability requirements under the 1973 Rehabilitation Act. Instead of Freddy Kruger wreaking havoc on employers, EEOC’s psychiatric enforcement guidance provides useful guidance and examples of how the ADA should work for employers confronting employment-related issues involving individuals with psychiatric disabilities. Equally important, these guidelines are being relied upon by employers and the courts.

The Supreme Court in another ADA case recognized that “unjustified isolation” of individuals with disabilities in institutions is unlawful discrimination. The Commission report explains that this goal of the ADA with respect to individuals with mental disabilities is best summarized by the Department of Justice (DOJ) regulations mandating that public entities administer services, programs, and activities that place individuals with mental disabilities in the most integrated settings appropriate for their needs. These regulations were validated by the Supreme Court, which established standards by which public entities must provide for the integration of individuals with mental disabilities into community-based settings. While state and local agencies now express an intent to work toward the integration of individuals with mental disabilities into society, the Commission report concludes that state and local governments generally have not committed the personnel resources or the funds necessary to integrate individuals with mental disabilities or multiple disabilities, which include mental disabilities, into society in manner that is truly meaningful and productive.

To accomplish this goal of integration into the community, the Commission urges DOJ, SSA, and other federal agencies to promulgate regulations that complement each other and in turn force public entities to establish written policies that have clear, objective, and fair standards by which individuals with mental disabilities may be integrated into community-based settings that are most appropriate for their needs.

The Commission report also recognizes that law enforcement departments across the nation have taken strides toward improving the services provided to individuals with disabilities who are both the victims and suspects of crime. Even with this work, problems remain in the interactions between police and individuals with mental disabilities. Some law enforcement departments have worked toward complying with the ADA with respect to individuals with mental disabilities by providing training classes and training videotapes. To fully succeed in this area, the Commission recommends that Congress provide additional funding to DOJ to allow it to increase its technical assistance tools, including offering nationwide training of officers in how to interact with individuals with mental disabilities. This training should include how to recognize, approach, and interact with individuals with mental disabilities and should include videos and simulations developed in conjunction with disability advocacy groups. 

Chapter 6: Findings and Recommendations

The final chapter of this report provides a series of recommendations aimed at addressing issues interfering with accomplishing the ADA vision and preventing individuals with disabilities from truly becoming part of the fabric of this society. These recommendations are balanced and run the gamut from increased education, to more focused enforcement of the ADA by the federal agencies charged with enforcing the ADA, to tax breaks for businesses that proactively embrace the ADA, to congressional action needed to reconfirm the statutes intent and vision.

When the ADA was signed into law, it was proclaimed, “Together, we must remove the physical barriers we have created and the social barriers that we have accepted. For ours will never be a truly prosperous nation until all within it prosper.”[1] Ten years after its enactment, those words remain true. Together we must all continue this effort. This report is but one step in the direction of sharing the dream and accommodating all!

Page #exsum October 30, 2000
Page source: http://www.usccr.gov/ada/exsum.htm
Index for complete report: http://www.usccr.gov/ada/main.htm