Hear from Christopher E. Czerwonka, Adjunct Professor of Law at Maurice A Deane School of Law at Hofstra University and Senior Fellow at the Gitenstein Institute for Health Law and Policy at Hofstra Law, as he shares the details of the new course “The ADA: Statutory Interpretation”.
The course covers the fundamentals of statutory interpretation through the lens of a particular statute, the Americans with Disabilities Act of 1990, as amended. The course introduces students to the basics of statutory interpretation, then asks students to apply what they have learned in doctrinal context. Students will be exposed to the various mechanisms by and forums in which statutes are analyzed and interpreted, and the evidence used in the process, including but not limited to legislative history, agency interpretation, judicial decisions, and administrative regulations. Although the course is not designed as a doctrinal course in disability law, students should come away from the offering with a solid grasp of its fundamentals, as well as an understanding of the subject matter at hand.
My name is Professor Christopher Czerwonka. I’m an adjunct here at the law school, and a senior fellow at the Gitenstein Institute where I handle a Legal Mapping Project. Just a quick overview on that, what we have done is looked up every single advanced care planning law in the country from date of first enactment ever in each jurisdiction, all the way up to the present, and actually gone in and created a database where you can track the changes over time. So that has been a project that has been about a year and a half to two years in the making.
In addition to that, obviously I teach in the Health Law and Policy programs here. And the ADA course is a real passion for me. It’s sort of my baby if you will, in the sense that I have been teaching disability law in one form or another for the past six or seven years at various conferences and schools, and now in the context of this course and so I’m thrilled to have been given the opportunity to develop this new course because, for the reasons you will hear, I think the subject matter is important and I think you will get a lot out of it learning the skill of statutory interpretation through that particular vehicle.
Now, why statutory interpretation in general? Well, successful lawyers and health care professionals really have to understand how laws are interpreted and applied. You can’t begin to have a discussion about compliance with the law unless you know how the administrative agencies and courts and advocates are going to interpret it. Now, those of you who have been to law school may have picked up some skill in statutory interpretation, in the context of your legal training and in your practice careers but the ADA is very unique in the sense that as a civil rights law, you’ve got several different sources of interpretation that are all sort of coming at you at once. You have administrative agencies like the EEOC (Equal Employment Opportunity Commission) that are making regulations that basically specify to employers what it is they have to do and specify to the courts which standards need to be applied, and you also have the courts themselves and the executive branch. Sometimes we will get presidential interpretations or executive orders that sort of sketch out the edges of the Americans with Disabilities Act.
Now, I don’t know how many of you have experience in the federal sector, but if you heard me say that and you work or the federal government or rather have worked with the federal government, you’re probably sitting there thinking, at least if you have any experience with the Americans with Disabilities Act “well wait a minute, I thought that ADA didn’t apply to the federal government, I thought that was the Rehabilitation Act of 1973” and the answer, is you’re right except that the Rehabilitation Act of 1973 as amended tells the people who are reading it that really the standard to apply is that which would be found if we were going with the ADA. So whether the ADA applies in your workplace or unique situation or not, it’s something that you need to know.
Now, one of the other sort of nice things about the American Disabilities Act in a context of a program like this, is that unlike a lot of civil rights law or a lot of law generally that deals with communicating people’s rights and civil liberties, the ADA has a really clear health connection. Now the connection should be sort of intuitively obvious given the fact that we are dealing with disabilities which are by nature, medical conditions but some things that you might not have considered are the extent to which
whatever medical evidence you’re going to be marshalling is persuasive to a finder of fact and depending on how narrowly or broadly you construe statute, and we’ll talk about interpretive modalities in the context of the course, depending on that, you could get a vastly different outcome depending on how well you marshal that evidence. If the court is persuaded, for example, that Disability X should be covered, they may be persuaded based on the strength of that medical evidence rather than on any particular statutory mention of the condition.
Why do I say that? Well it’s because the ADA doesn’t provide a list of conditions that qualify as disabilities. All it says is it has got to substantially limit a major life activity. So, it leaves open a couple of doors for interpretation. What is a substantial limitation? What is a major life activity? And what qualifies as a condition. To the extent that those facts are in dispute, the medical evidence can be really, really important and has a key role for health care providers and others involved in the health care delivery system in making sure that its mandates and guidelines are enforced.
The other sort of unique things about the Americans with Disabilities Act is most laws, you could fairly say, relies on fact and sensitive inquiry. But as a matter of statutory and also as a matter of the way that the policies that surround the ADA are written, this is sort of a unique statute in just how broad the amount of latitude is and how individual that inquiry has to be. In other words, one person with a particular medical condition might be found to have a disability, and another person with that same medical condition with a different clinical presentation might not be found to have that disability. And so, courts are given really wide latitude to determine how much weight to accord the particular evidence involved.
Now let me very quickly give you a list of objectives that I expect that you will be able to meet by the end of my course.
By the end of the course students will be able to
- Explain the fundamental principles of statutory interpretation
- Participate meaningfully in discussions regarding legislative intent
- Identify areas of tension between judicial rulings and statutory text
- Trace the evolution of doctrinal interpretation of the ADA over time
- Apply the fundamentals of statutory interpretation to a complex hypothetical scenario
Now, what do I mean by these things about legislative intent in areas of tension between judicial rulings and statutory texts and doctrinal evolution. As you’ll see when we get to when you get to the substance of the course, the courts have sort of been all over the place with the Americans with Disabilities Act ever since its inception. There is a line of cases all the way from the early 1990s up through about 2003 which accorded one sort of singular judicial interpretation to the meaning of the statutes. But in 2008 Congress went in and said “no”. Both the agencies that have been interpreting it and the Supreme Court have gotten certain elements of that wrong and we’re going to be asking in the context of this course, what is it that the courts misapprehended or misinterpreted at least according to Congress, and how might Congress have written a statute in a way that’s better to avoid some of those problems. And we’re also going to be asking whether you think the reasoning of the court in those earlier cases was a reasonable reading of the statute under the interpretive understandings that sort of prevailed at the time.
Now, the interpretation of the ADA has certainly evolved thanks to the passage of the 2008 Amendments Act but we’re also going to be looking at sort of the social environment in which disability exists. And it certainly has changed.
I would also mention that one thing that I didn’t mention earlier that I that I really should here – I want to back up for a second and mention – is that the ADA presents a host of ethical issues for both the lawyer and for the healthcare provider. For example, how much privacy do you counsel your patients / client to go with if you know that maybe there is information that is favorable to a disposition of an accommodation request for your client but that your client might not want to disclose i.e. evidence of some disability that they’re embarrassed to come forward and say that they have. And to what extent does the duty of candor conflict with the duties of privacy and what evidence should you present, given the fact that you always want the patient or client to be the person that’s sort of in that final decision-maker’s seat, because that’s ethically our jobs, right? Whether we are lawyers or health care professionals, ultimately the patient or the client has the right to make decisions regarding their care or their legal representation and to the extent that you the health care professional are called upon to provide documentation, you may be confronting ethical issues regarding what positions to take in terms of what information to disclose or not disclose.
There are a couple of ways that I teach the course. I give a few video lectures and so you’ll see those. And I also do hypothetical scenarios, so I have written out some very realistic, true-to-life scenarios where you are in the role of the decision-maker and you’re given a set of facts and circumstances and told “ok, what are you going do about this”. That’s sort of the bulk of the course is taken up with those simulations.
I really believe, very strongly in the value of learning by doing. I could sit and talk into a webcam for twenty, thirty minutes but it’s my firm belief that you won’t learn as much if I do that, than if I gave you a chance to actually apply these particular skills in context and exactly when the skill is being taught so you’re able to get some real-time feedback.
That said, as I said, there are some lectures that are really heavy material. Particularly when we get to things like Department of Justice interpretations of the statute that can be really thorny even for experienced lawyers. Even if you’re a very experienced lawyer, if you’re not experienced this particular area of the law, some of the stuff can get really complex and confusing, so that’s that.
The response papers that you see sort of bulleted on the slide ask you to respond to those hypotheticals. They also on occasion as you to consider a sort of the social and cultural background of disability that we talked about earlier and ask you to consider what inherent biases both implicit and explicit exist in society that inform the discussions that we have around the issue of disability itself.
The discussion boards, what I generally do there is I give you a question that will sort of reflect the theme of the week, whatever that theme is. So, I will ask you to chime in on whether you think the cases were rightly decided or what you think the social considerations are that led the court to a certain decision, or whether you think that a statute could have been better drafted to avoid an interpretative problem or what interpretive modality you think a court should use given a particular set of circumstances. I’ll also ask you to get some practice applying the principles of statutory interpretation to those unique scenarios.
The final exam for the course is sort of hybrid of all of that. It’s a long, fairly involved hypo that covers everything that we’ve learned in the course. It asks students to bring to bear all of the statutory interpretation skills that they’ve learned, but also to bring to bear their newly acquired doctrinal knowledge. When I write these scenarios, I try to write them in such a way that they are – dare I say- entertaining and fun because I want scenarios that will really get you thinking and make you struggle in a good way with the hard work of doing statutory interpretation.
Now when I say struggle please don’t think “oh my gosh, this is going to be impossibly difficult”. It’s not. But you may find that some of the answers, from a social, moral, ethical perspective may not be as easy to arrive at as you would like. And your ability to reconcile that and come to a resolution that is both faithful to the statute and faithful to the principles that you think are important will be at issue there.
Let me just say one other thing which is that I really think this material is cutting-edge. We live in a time where civil rights is a hot topic in the news and civil liberties is a hot topic in the news. I come at it from the perspective that the more that somebody knows about federal civil rights legislation, the more they are going to be able to participate knowledgeably in those discussions. Certainly, for something like the ADA if you end up in on the wrong side of the V – what lawyers say, meaning the wrong side of the V.S sign, being sued, it’s not going to be a pleasant experience for you and the penalties for non-compliance with federal civil rights laws can be substantial. So, my hope is not only will you learn the skill a statutory interpretation and acquire an appreciation for what I think is a really, beautifully-nuanced area of law that allows for creative lawyering on the lawyer side of the things, but also some creative medicine in terms of how you present the evidence that your patient is going to need medically to get what they need it really provides some wonderful opportunities for creativity and for honest discussion.