UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT CHRYSLER SZARLAN, SUZANNE : M. ARPIN, JANE DOE, a : pseudonym, and JAMES ROE, a : pseudonym, on behalf of : CIVIL ACTION NO. themselves and all others : 3:94 CV-10060 (AHN) similarly situated : : v. : THE CONNECTICUT BAR : EXAMINING COMMITTEE and : R. DAVID STAMM, Administrative : Director of the Connecticut : Bar Examining Committee : July 7, 1994 UNITED STATES' MOTION FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE PLEASE TAKE NOTICE that the United States of America hereby moves the Court for leave to participate as amicus curiae in this case. The United States has substantial enforcement responsibilities under title II of the Americans with Disabilities Act of 1990 ("ADA"), which forms the basis of plaintiffs' claims in this case. As explained in the attached memorandum in support of this motion, the government believes that its interests may be affected by the outcome of the case and, further, that the government's views will be of assistance to the Court and the parties in addressing the issues raised in the litigation. Accordingly, the United States respectfully urges the Court to grant this motion for leave to participate in the case as amicus curiae. Dated: Washington, D.C. July 7, 1994 Respectfully submitted, CHRISTOPHER F. DRONEY DEVAL L. PATRICK United States Attorney Assistant Attorney for the District of General Connecticut Civil Rights Division By: NANCY L. GRIFFIN By: Assistant United States JOHN L. WODATCH Attorney JOAN A. MAGAGNA Federal Bar No. CT01253 SHEILA M. FORAN United States Attorneys' Attorneys Office U.S. Department of Justice 915 Lafayette Boulevard Civil Rights Division Bridgeport, Connecticut 06604 Public Access Section Tel: (203) 773-2108 P.O. Box 66738 Washington, D.C. 20035-6738 Tel: (202) 307-0663 - 2 - UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT CHRYSLER SZARLAN, SUZANNE : M. ARPIN, JANE DOE, a : pseudonym, and JAMES ROE, a : pseudonym, on behalf of : CIVIL ACTION NO. themselves and all others : 3:94 CV-10060 (AHN) similarly situated : : v. : THE CONNECTICUT BAR : EXAMINING COMMITTEE and : R. DAVID STAMM, Administrative : Director of the Connecticut : Bar Examining Committee : July 7, 1994 UNITED STATES' MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE The United States has moved for leave to participate as amicus curiae in this case, which is brought under title II of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C.  12101-12213 (Supp. II 1990). Plaintiffs allege that Connecticut bar examining authorities violate the ADA by requiring applicants for admission to the bar to disclose information about their history of treatment for mental health conditions, and by subjecting applicants who have had such treatment to burdensome investigatory procedures not uniformly required of all applicants. The United States believes that plaintiffs are correct that the challenged inquiries and procedures violate the ADA. Due to the significance of the issues now before this Court, and the potential ramifications of the decision in this case for licensing entities across the country, the United States seeks participation as amicus curiae. The United States has significant responsibilities for implementing and enforcing the ADA, including, pursuant to statutory directive, the promulgation of implementing regulations.1 Accordingly, the United States has a strong interest in ensuring that the case law developed in this suit is consistent with the United States' interpretation of the statute and the title II regulation. 28 C.F.R. pt. 35. ______________ 1 Pursuant to the statute and the regulation, several federal agencies have responsibility for investigating title II administrative complaints. The Department of Justice coordinates the title II implementation efforts of these agencies and may file suit in federal district court when a complaint cannot be resolved by voluntary means. See 42 U.S.C. 12133; 28 C.F.R. pt. 35 at subpt. F; S. Rep. No. 116, 101st Cong., 1st Sess. 57 (1989); H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 98 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 381. - 2 - Accordingly, the United States respectfully urges the Court to grant this motion for leave to participate in the case as amicus curiae. Dated: Washington, D.C. July 7, 1994 Respectfully submitted, CHRISTOPHER F. DRONEY DEVAL L. PATRICK United States Attorney Assistant Attorney for the District of General Connecticut Civil Rights Division By: NANCY L. GRIFFIN By: (Signature) Assistant United States JOHN L. WODATCH Attorney JOAN A. MAGAGNA Federal Bar No. CT01253 SHEILA M. FORAN United States Attorneys' Attorneys Office U.S. Department of Justice 915 Lafayette Boulevard Civil Rights Division Bridgeport, Connecticut 06604 Public Access Section Tel: (203) 773-2108 P.O. Box 66738 Washington, D.C. 20035-6738 Tel: (202) 307-0663 - 3 - UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT CHRYSLER SZARLAN, SUZANNE : M. ARPIN, JANE DOE, a : pseudonym, and JAMES ROE, a : pseudonym, on behalf of : CIVIL ACTION NO. themselves and all others : 3:94 CV-10060 (AHN) similarly situated : : O R D E R v. : THE CONNECTICUT BAR : (Proposed) EXAMINING COMMITTEE and : R. DAVID STAMM, Administrative : Director of the Connecticut : Bar Examining Committee : Before the Court is the United States' Motion for Leave to Participate as Amicus Curiae in the above-entitled matter. Having read and considered the foregoing, and good cause appearing, IT IS HEREBY ORDERED that the United States is granted leave to participate as amicus curiae in this action. Date: , 1994 Alan H. Nevas United States District Judge UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT CHRYSLER SZARLAN, SUZANNE : M. ARPIN, JANE DOE, a : pseudonym, and JAMES ROE, a : pseudonym, on behalf of : CIVIL ACTION NO. themselves and all others : 3:94 CV-10060 (AHN) similarly situated : : O R D E R v. : THE CONNECTICUT BAR : (Proposed) EXAMINING COMMITTEE and : R. DAVID STAMM, Administrative : Director of the Connecticut : Bar Examining Committee : Before the Court is the United States' Motion for Leave to Participate as Amicus Curiae in the above-entitled matter. Having read and considered the foregoing, and good cause appearing, IT IS HEREBY ORDERED that the United States is granted leave to participate as amicus curiae in this action. Date: , 1994 Alan H. Nevas United States District Judge CERTIFICATE OF SERVICE I, the undersigned, attorney for the United States of America, do hereby certify that I have this date served upon the persons listed below, by overnight delivery, true and correct copies of the foregoing United States' Motion for Leave to Participate as Amicus Curiae and Memorandum of Law in Support Thereof: Jon Bauer Tanina Rostain Supervisory Attorneys Civil Rights Clinic University of Connecticut School of Law 65 Elizabeth Street Hartford, CT 06105 (Attorneys for Plaintiffs) Ralph G. Elliot Glory Martyn Lena Tyler, Cooper & Alcorn CityPlace, 35th Floor Hartford, CT 06103-3488 (Attorneys for Defendants) SO CERTIFIED this 6th day of July, 1994. (Signature) SHEILA M. FORAN Attorney United States Department of Justice Civil Rights Division Public Access Section P.O. Box 66738 Washington, D.C. 20035-6738 (202) 307-0663 ENFORCEMENT/LITIGATION/AMICUS BRIEFS 4. Amicus Briefs The Department files briefs in selected ADA cases in which it is not a party in order to guide courts in interpreting the ADA. Title II Tyler v. City of Manhattan, Kansas -- The Department filed an amicus brief in the U.S. Court of Appeals for the Tenth Circuit arguing that title II authorizes awards of compensatory damages regardless of whether the discrimination is intentional. The brief also argues that the plaintiff is entitled to a jury trial when seeking such damages. The district court had found that Manhattan violated title II of the ADA by holding town meetings and baseball games, which the plaintiff was interested in attending, in inaccessible areas, and by failing to create an adequate self-evaluation plan. However, the district court decided that damages were not available under title II in the absence of intentional discrimination, and that the plaintiff was not entitled to a jury trial under title II. Szarlan v. Connecticut Bar Examining Committee -- In a private action in which the Department joined in an amicus role, an individual seeking licensing as an attorney charged that the Connecticut Bar Examining Committee had violated the ADA by requiring applicants to the bar to state whether they had ever sought treatment for or been diagnosed as having a nervous, mental, or emotional condition. Applicants who answered in the affirmative were required to sign a consent form authorizing the release of any and all mental health records, and otherwise undergo investigatory procedures not uniformly required of all applicants. The bar committee held public hearings on the issue, obtained technical assistance from the Department, withdrew the challenged inquiry, and substituted a revised inquiry focusing more narrowly on impairment of the ability to practice law. Title III Orr v. KinderCare -- The Department participated as amicus curiae in this suit against a major daycare provider challenging the exclusion of a nine-year old boy because of his disabilities. KinderCare had decided to terminate Jeremy Orr, a child who has developmental disabilities, low vision, and a mild seizure disorder, from its after- school program. He needs assistance in eating, walking, diapering, and interacting with other persons. After six months of serving Jeremy in its two-year-old room, KinderCare argued that it could not meet Jeremy's individualized needs in "a group care setting." KinderCare also refused to modify its procedures to accommodate an aide for Jeremy proposed by his parents. This aide would be provided by a third party with full State support. The Department argued that Jeremy's presence had not fundamentally altered KinderCare's program and that accommodating an aide for Jeremy in the future also would not fundamentally alter KinderCare's program. The court entered a preliminary injunction that ordered KinderCare to retain Jeremy pending trial. Under a consent decree resolving the lawsuit, KinderCare will retain Jeremy Orr in its after-school program and allow him to be accompanied by an aide funded by the State. He will be allowed to attend the program in an age- appropriate classroom when the aide is present, and the two-year olds' room when the aide is not present. KinderCare agreed to mandatory staff training and periodic conferences with Jeremy's parents regarding how best to include him in program activities. Without admitting liability, KinderCare agreed to pay damages and attorney's fees to the Orrs. Enforcing the ADA - Update 5 April-September 1995