Friday, May 4, 2012

The Florida Bar Says It Can Rely On Bar Rules In Direct Conflict With Title II of the Americans With Disabilities Act to Discriminate Against Disabled Americans

I have promised to keep the Autism community updated on the Crisis in Florida concerning why adults with Autism Spectrum disabilities cannot find any licensed Florida lawyers trained in our complex disabilities capable of representing us in legal matters we have, and why there is a pervasive hostile environment of Autism bullying and abuses being carried out by lawyers the state of Florida licenses against the extremely vulnerable adult Autism population in Florida any time these lawyers wind up opposing any claim or Court case filed to secure Autism disability rights, medically necessary Autism funding for supports and services, Olmstead community-based living rights, or any other legal right Autistic adults should have -- including the right to a fair and impartial Court . 

The "smoking gun" is contained in a public records response I just received from The Florida Bar asserting that items that are required to be in their publicly available transition plan and self-evaluation (28 C.F.R. Sec. 35.105(a), (c)) to comply with Title II of the Americans With Disabilities Act are being kept secret under "confidential" files: 

"I am in receipt of your request dated April 26, 2012, wherein you ask for "all public records for why The Florida Bar does not feel it is required to keep all records necessary to prove it is not violating Title II of the ADA, and index the records keyed to this mandatory civil right requirement."

"[A]fter review of your request by our General Counsel, he indicated that your inquiry as framed seems to seek records of legal determinations that would likely be confidential and exempt from disclosure requirements pursuant to Rule 1-14.1 of the Rules Regulating The Florida Bar"

Jenny Jolinski, Records Custodian, The Florida Bar, May 4, 2012

Clearly, the ADA subjects conflicting state laws and rules such as "Rule 1-14.1" to federal pre-emption if it conflicts with the ADA. 42 U.S.C. Sec. 12201(b); Barry v. Burdines, 675 So.2d 587 (Fla. 1996); Shotz v. City of Plantation, Fla., 344 F.3d 1161 (11th Cir. 2003). 

In this case, since The Florida Bar is within the definition of "public entity" under Title II (42 U.S.C. Sec. 12131(1); Florida Bar v. Clement, 662 So.2d 690 (Fla. 1995), the "conflict" pre-emption analysis must make a comparison between "Rule 1-14.1" and the mandatory anti-discrimination requirements of Title II.

Congress delegated authority to promulgate regulations to the Attorney General of the United States. 42 U.S.C. Sec. 12134. 

The federal regulations under Title II clearly apply as follows:

"A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration
  • (i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability;
  • (ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities"
  • 28 C.F.R. Sec. 35.130(b)(3).
These Title II anti-discrimination prohibitions encompass certain affirmative duties on the part of the "public entity" involving indexing for intake and reception, and thereby spell out that the activities The Florida Bar claims should be "confidential" are within the regulatory authority of Title II of the ADA.

As a result of this, the requirements of  28 C.F.R. Sec. 35.130(b)(3) and Clarkson v. Coughlin, 4 A.D. Cases 1056 (S.D.N.Y. 1995) (public entities have an affirmative duty to implement a method of reception and classification for individuals with disabilities to ensure that no such individual will be deprived of timely and effective necessary reasonable accommodations), the "methods of administration" prescribing how the Florida Bar indexes and files all elements of its Title II ADA compliance activities are by necessity within the mandatory required elements of the "public entity's" transition plan and self-evaluation. 

The transition plan and self-evaluation are required by federal law under Title II of the ADA to be maintained publicly available at all times. 28 C.F.R. Sec. 35.105(c) ("make available for public inspection")).

As a result, the mandatory "maintain public" federal anti-discrimination requirement 28 C.F.R. Sec. 35.105(c) conflicts with the "confidential" files stance of The Florida Bar and it's "Rule 1-14.1," it is CLEAR and CONVINCING the "Rule 1-14.1" secret "confidential" files being maintained by the public entity to conceal The Florida Bar's policy of discrimination against the disabled at the highest levels of Bar membership stands in direct conflict with the mandatory requirements of Title II of the ADA.

How much more CLEAR does it have to be that The Florida Bar is a "public entity" that not only creates a discriminatory hostile environment toward disabled Americans, but institutionalizes this irrational discrimination in direct conflict with the mandatory anti-discrimination requirement of Title II of the ADA in it's own self-regulatory state rules ?

I rest my case that The Florida Bar is incapable of regulating and preventing the pervasive Autism bullying and abuse of severely disabled Autistic people by lawyers it regulates in the state of Florida. 

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