By Hans Bader
“Amazon.com . . . tried to sell a talking Kindle reader, but” the Justice Department “said it couldn’t because the button to make the Kindle talk didn’t have braille. Never mind that books neither talk nor have Braille buttons telling them to talk.” Obama’s radical appointees at the Justice Department, like Tom Perez, think that it’s better to have NO
accommodation for the disabled, then an imperfect accommodation. The Obama Justice Department also used the threat of suing under the Americans with Disabilities Act to prevent colleges from using Kindle to lighten “the textbook load on their student body by moving to e-book formats.” Blocking Kindle harms people with chronic back problems.
The Obama Justice Department is also threatening South Carolina with a lawsuit over an anti-AIDS program that saves lives in the state’s prisons. South Carolina tests incoming inmates for AIDS, and “half of those tested never knew they were infected. The testing policy saves lives because treatment starts immediately, at state expense.” The Administration ridiculously claims this is an unconstitutional invasion of privacy. But the Supreme Court has made clear that prisons have broad powers to restricts’ inmates rights to protect health or safety, or to promote any other legitimate correctional or penological purposes. (Indeed, the Supreme Court’s decision in Beard v. Banks says that prisons can even restrict what inmates read. South Carolina is not trying to do anything that extreme.)
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The Obama administration also claims that the policy violates the disabled-rights laws, even though it saves lives, because it provides “separate living facilities” for prisoners with AIDS. South Carolina’s program “has worked so well since 1998 that there has only been a single transmission of HIV/AIDS to a single prisoner.” In other prison systems, many lives have been lost due to transmission of HIV to previously uninfected inmates. The Obama Justice Department’s demand could thus result in many deaths.
The Obama Administration’s claim is flatly inconsistent with a federal appeals court ruling that held that even a tiny risk of HIV transmission can justify sweeping anti-AIDS measures like not employing a surgeon with AIDS, given the lethal nature of AIDS. (See Doe v. University of Maryland Medical System Corp., 50 F.3d 1261 (4th Cir. 1995).) That ruling is binding precedent in South Carolina, and it rejected challenges under both the Americans with Disabilities Act and its sister statute, the Rehabilitation Act.
Moreover, South Carolina is not trying to go nearly as far as the federal appeals court held was permissible, in its sensible measure to save lives–it is not firing anyone, just housing them separately. Prison officials are given more leeway to take HIV-positive status into account than employers are, given the extra deference that courts give to prison administrators. Even the most liberal federal appeals court upheld a policy of denying inmates who tested positive for HIV access to food service jobs. (See Gates v. Rowland, 39 F.3d 1439 (9th Cir. 1994).)
The Obama administration also wants to use the Americans with Disabilities Act to regulate the Internet. It also has signed an international treaty on disabilities-rights that could undermine American sovereignty.
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Deferring to the Justice Department, the most-liberal federal appeals court recently ruled against Chipotle in a lawsuit that will lead to hundreds of thousands of dollars in damages and attorney fees–and a catch-22 against the company, which must lower its employee counter tops to make them easier for disabled patrons to view (to satisfy the ADA), but must simultaneously keep them high to comply with worker-safety rules. (Ironically, the court’s ruling in Antoninetti v. Chipotle conflicted with one of its own past rulings, violating the rule that a panel of an appeals court cannot contradict an earlier panel. It also rewarded nuisance litigation.)