The MLB steroids report, imported lead-containing products, and education

I have never knowingly used anabolic steroids. Anyone seeing me during my long-past sporting days (let alone now) would confirm that nothing in my performance ever even suggested I did. I have, however, handled imported products containing lead, most recently my half-working Christmas lights.  One did nothing for me; the other remains to be known. But the presence of both substances are, in odd ways, connected to public education (if not to each other).

MLB issued its long awaited report confirming what pundits have longer said: some players have used anabolic steroids and MLB did not do much about it. (Click here for one of many news reports about the report.) The Pennsylvania legislature and the public schools, at least, did not take the head-in-the-sand approach but were out in front of the curve on this one.

In 1989, Act 93 (35 P.S. §§ 807.1 – 807.5) mandated school rules to prohibit use of and provide education about anabolic steroids, as well as penalties for use-offenders. Something for MLB to think about.  If the Pennsylvania legislature can handle this issue, surely MLB could, too.

The percentage of special education students in Pennsylvania public schools has steadily increased since 2002-03, the first year for which PDE offers data to the public on-line (from 13.5% to 14.8%).   I believe that the percentages should remain, theoretically, consistent overtime (indeed, identification of hearing impaired, multiple disabilities, orthopedic impairment, and even emotional disturbance, among others, remain rather constant), absent some external factor, such as new or improved diagnostic criteria, which is often said to explain the increasing percentage of Autism Spectrum Disorder (“ASD”) identification (from 2.1% to 3.2%) or perhaps the increase in ADHD / other health impairment (from 2.0% to 4.4%). Others have said thimerosol used in childhood vaccines account for higher incidents of ASD, although we know that now is not the case.  Indeed, the CDC website states “Since 2001, with the exception of some influenza (flu) vaccines, thimerosal is not used as a preservative in routinely recommended childhood vaccines.” Yet the identification of autism keeps rising while, perhaps coincidentally, the identification of mental retardation is the only category to have a significant percentage decline, and in rough opposite proportion to ASD percentages. 

So, is this a matter of diagnostic criteria? Or, might it coincide with the avalanche of imported products containing lead such as toys from China and candy and spices from Mexico in the last 10-15 years as those economies developed? Probably not, but only good studies could say for certain that increases in learning disabilities and behavioral problems are not attributed to the apparently increasing and pervasive (re-)presence of lead in American society.

We educate the kids about the evils of anabolic steroids and turn a blind-eye when they age into the Steroid Era players. We do not tolerate lead in gas and paint, but accept it in cheap imports or even domestic vinyl products. One gets a $20 million plus report and plenty of media coverage to tell us what we already know. The other is ignored and has no report to tell us what we need to know. 

The rights of disabled students in higher education.

This past Spring, the U.S. Department of Education, Office for Civil Rights, issued two letters and a guide relating to students with disabilities and higher education. 

The first, addressed to institutions, summarized the rights and obligations of disabled students in higher education.  The second, addressed to parents, similarly explains rights and obligations and addresses how those rights and obligations differ in higher education than in public K-12 schools. 

The letters themselves do not offer any new insights or agency positions. But they serve as a useful reminder, particularly for parents, of how different circumstances are in higher education than in K-12.

The guide, Transition of Student with Disabilities to Postsecondary Education: A Guide for high School Educators, a question and answer format, is available here.

No second helpings: limits on ADA claimants collecting disability

Guest blogger, Mark Fitzgerald, writes about the tension between employment disability discrimination claims under the Americans With Disabilities Act (“ADA”) and claims for disability benefits. The legal concept of “estoppel” in such circumstances generally holds that an employee cannot certify to being disabled in order to obtain disability benefits, while claiming in court that she is not disabled and qualified to work. Mark is a member of the Education Law Group with a practice emphasis in Labor and Employment. Click here to find out more about Mark’s background and contact information.

 In a case that underscores the federal courts’ heightened scrutiny of employment disability discrimination claims following a plaintiff’s successful application for Social Security Disability, the United States District Court for the Middle District of Pennsylvania granted summary judgment for the employer because plaintiff-employee was estopped from raising claims under the ADA  after successfully applying for Social Security Disability benefits.

In an ADA employment discrimination case, a plaintiff must initially be able to show

a “prima face” case:  (1) that she has a disability within the meaning of the ADA, (2) is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations, and (3) was subject to some adverse action as a result of the disability. In Jones v Southcentral Employment Corp., 488 F. Supp. 2d 475 (M.D. Pa. 2007), the employer sought summary judgment because plaintiff’s actions and the facts leading up to her discrimination claim prevented her from meeting this initial burden.

The employer argued that settled principles of judicial estoppel, a doctrine that prevents a litigant from asserting a position inconsistent with a position asserted in a previous proceeding, precludes the plaintiff from establishing an essential element of her prima facie case, namely, that she was “qualified” for the position in question.

The court agreed. In granting the motion, the Middle District relied on Cleveland v. Policy Management Corp., 526 U.S. 795 (1999), in which the Supreme Court held that to survive summary judgment, an ADA plaintiff who previously was awarded disability benefits must provide a sufficient explanation to reconcile a sworn statement claiming “total disability” and later asserting an ability to “perform the essential functions of the job.”

Simply put, Cleveland added additional criteria to the prima facie case where judicial estoppel is implicated. Taking Cleveland a step further, Jones underscores that merely explaining away the inconsistencies of past statements is not enough to satisfy the Cleveland criteria.

In an attempt to explain away her conflicting claims, the plaintiff in Jones ineffectively argued that in contrast to an ADA claim, the Social Security Administration does not take into account reasonable accommodations in evaluating qualifications for benefits and, therefore, the two claims should be considered mutually exclusive.

The Middle District did not buy her explanation for several reasons. Most notably, merely identifying the differences in the two statutory schemes was not enough to cure her conflicting statements. The court stressed such clear inconsistencies in prior statements had to be supported by fact. The plaintiff could not demonstrate a sufficient explanation for her prior statements, especially in light of the fact she never requested reasonable accommodations from her employer after she was injured in the first place.