In the current legislative session, the Ohio legislature has proposed measures that would represent a move backwards with respect to individuals with disabilities. In the past several decades, the federal government has taken historic steps to make it possible for individuals with disabilities to be full and equal members of our society. In 1975, Congress enacted the Education for All Handicapped Children Act, requiring public schools to educate all of its children, including those who are disabled. In 1990, Congress enacted the Americans with Disabilities Act, requiring public and private entities to be accessible. By contrast, the Ohio legislature is seeking to put two roadblocks in the way of individuals with disabilities as they seek full participation in our schools and society.
HB 333: Denial of Access
First, the Ohio legislature has proposed HB 333, which would require individuals with disabilities to give property owners five months’ notice before they could sue them for failing to make their business or property accessible. The Americans with Disabilities Act (“ADA”) created the requirement that public facilities be accessible in 1990 and provided businesses about two years to comply before they could be subject to suit. Initially, businesses only needed to be accessible if such accessibility could be “readily achieved.” Over time, we have come to expect all new construction and substantially renovated facilities to be fully accessible. Nonetheless, twenty-four years after the passage of the ADA, individuals with disabilities cannot assume that they can enter a restaurant, grocery store, or shopping mall to participate in our economy because the facility might still not be accessible.
We do not require victims of any other sort of discrimination to wait five months before they can file suit to remedy a violation. Ohio is sending a clear message that it is unconcerned about basic access to our society by individuals with disabilities so that they can participate fully in the economy. Their economic dollars are a less valuable shade of green.
Ironically, HB 333 was proposed, and hearings were held in the House, during some of the worst weather in Ohio’s history when many individuals with disabilities were literally trapped in their houses because of icy, dangerous conditions and uncleared piles of snow. These individuals were not able to participate in the political process while meetings and hearings were held to discuss how to take away their basic civil rights. This act was justified as an “emergency measure” to protect businesses against fictitious frivolous law suits when a genuine emergency existed in the lives of many Ohio residents who could not safely leave their homes.
HB 334: Denial of Education
Second, the Ohio legislature has proposed HB 334, which would enhance the authority of school officials to expel a student from school for up to one hundred eighty school days when a student has not engaged in any criminal conduct but poses a purported “imminent and severe endangerment to the health and safety of other pupils or school employees.” The student is not eligible for reinstatement until a psychiatrist conducts an assessment. If the school superintendent concludes that the student has not shown “sufficient rehabilitation” then the superintendent may extend the expulsion for an additional ninety school days. The additional ninety-day expulsions may be continued indefinitely.
This proposed legislation is contrary to the available evidence about how to deal with students who are struggling with mental illness. Excluding them from school is likely to exacerbate their situation. Further, most students who are excluded from school are placed on home instruction. Unfortunately, their home is often not a safe and healthy place for them to spend their day. If we truly want to make society safer, we need to offer humane treatment and appropriate medical care. The Education for All Handicapped Children Act (now called the Individuals with Disabilities Act), which is ignored by HB 334, provides for such a program of support and education.
HB 334 is a supposed response to school violence at Sandy Hook and Chardon High School. Neither Adam Lanza (Sandy Hook shooter) nor T.J. Lane (Chardon High School shooter), however, were current students at the schools at which they committed murder. Passage of this legislation would give us an artificial sense of security.
School to Prison Pipeline
Nationally, the problem of the “school to prison pipeline” has been recently receiving considerable attention. In response, the federal government is encouraging schools to abandon zero tolerance policies because those policies are unfairly applied and do not enhance the safety of society. The proposed Ohio law only brings a psychiatrist into the picture as a means of continuing to exclude a student from school rather than as a way to help treat a student struggling with mental illness. A vindictive response to mental illness is unlikely to benefit a student or society.
I like to think of Ohio as a warm place where neighbors seek to help each other out, especially in times of need. HB 333 and HB 334, however, reflect a different face of Ohio. The legislature is siding with the business community over the accessibility needs of individuals with disabilities. It is also introducing a hysterical response to the problem of school violence rather than trying to enhance treatment and services for students who are identified as struggling with mental illness. I encourage people to contact their state representatives and let them know that you support full access to public accommodations and public education. HB 333 and HB 334 are an embarrassment to Ohio.
The above link is to testimony I provided in opposition to a bill that would require a plaintiff to provide five months notice before suing an entity for being inaccessible.
Open that link to hear me discussing my new book, Disabled Education.
That link contains slides that summarize Ohio Special Education decisions, involving Complaints and Due Process Hearings, from May 2012 – May 2013.