More families of autistic kids sue Disney parks

[arko]

Yes, but that also calls into question the "my child will never" attitude that many parents of autistic children adopt.

I'm fairly certain that many autistic children were once considered "gifted and talented" even 20 - 30 years ago due to elementary testing scores, and were separated from the "normal" classrooms just as those with more severe issues were. Back when it was ADHD, or ADD, or "Hyperactive", or whatever the popular diagnosis is at the time.

My point is that, it's not the condition. It's the broad brush of the condition that makes it extremely difficult to react to as a society.

Combine that with parents who don't take the time to educate themselves on the matter, or take the news as some sort of "life death sentance" for their child, as in "my child will never", when really their child is very mild on the spectrum...

Well, to be frank, I find it rather disgusting.

I'm not normally one to empathize disgust, but having worked with autistic children who are rather on the "severe" side, I can understand a lot of it (including Autism Hippie at times and how she was afraid of her child...the issue with her was that she'd then turn HIM into a weapon by threatening people with his unpredictability and physical size...but, I get that...she was scared herself and just trying to be a good Mom..and not sure how..)

It's a tragic thing, all the way around, but everyone (on both sides) is making it far more conflated than it need be.

A child with mild autism isn't going to die hopeless and alone in Mom's basement. Just like a child with severe autism (like the ankle guy I mentioned earlier) probably doesn't need to be exposed to certain environments.

It's time we all grow up about it and be responsible instead of thinking the larger society owes us cake (and before it's implied, I am NOT referring to parents of Autistic children, rather, similar in attitude to the group @Tuvalu singled out before, the attitudes of some, like Autism Hippie, who abused her situation, and frankly, unintentionally, her son's condition, to help cope with her own grief...and it's a very real grief, I get that...)

I remember when we got the diagnosis for our son at 3 years old . It was like a huge punch to the gut. But we began therapy right away and slowly by middle school he was finally ready to be in regular classes. He is now in his first year of high school and is doing fairly well. But despite the fact he will most likely attend college , his job prospects are not that great. This is still a huge worry for us.

 

[BuddyThomas]

Speaking as an adult with ASD...this is just ridiculous. ASD doesn't magically vanish when you become an adult - children with ASD grow up to become adults with ASD, and even if they manage to adapt and develop coping mechanisms as they get older to deal with various symptoms or sensory issues, it doesn't make them any less autistic. It's not something you "grow out of".

Don't mind him. Buzz just likes to say words. It doesn't matter what kind of words or if they make any sense, although he usually prefers a series of words designed to offend as many as possible.

 

[arko]

I'll say this about the chances of a lawsuit of this nature actually producing the stated desired results (not the money part), it will likely fail. Just perusing through the published DOJ's title 3 highlights covering this area, I find only one section (roman numeral V) that might be vague enough to clutch for something unprecedented.

A public accommodation must make reasonable modifications in its policies, practices, and procedures in order to accommodate individuals with disabilities.

An argument has been made (and very well) that Disney has already done that. In fact, they have gone beyond what most other similar entities provide. However, since the DOJ is not running this wagon train, I am not concerned.

If Disney were ruled against, I believe I know what direction they would go to prevent a massive problem. I'll share that before it comes to pass but after a ruling of some kind.

*1023*

Good Post @Kate Alan

the one part of the federal suit that might have some teeth is the stated policy that Disney will work with families individual needs as stated on their web site

• What will Disney Parks do if a Guest is concerned the DAS Card doesn’t meet their needs?
  Disney Parks have long recognized and accommodated guests with varying needs and will continue to work individually with guests with disabilities to provide assistance that is responsive to their unique circumstances. Guests should visit Guest Relations to discuss their individual needs.

There is quite a bit of evidence that shows this has not been happening. What the judge will do about this is anyone's guess if he/she does anything at all.

 

[englanddg]

I remember when we got the diagnosis for our son at 3 years old . It was like a huge punch to the gut. But we began therapy right away and slowly by middle school he was finally ready to be in regular classes. He is now in his first year of high school and is doing fairly well. But despite the fact he will most likely attend college , his job prospects are not that great. This is still a huge worry for us.

He may surprise you. Not every high dollar work is mental work.

I know I'm preaching to a choir here, but, as long as you think outside the box and love and support him (which you obviously do), he'll be fine.

I just get upset with the "my child will never" attitude many take.

An employee of mine has a child on the scale, and he is just like you. They work through it, but they don't treat him all that much differently than I treated my child. And, I've been over to their house, I've been to weekend retreats with them...and their kid is very well behaved in public (not quiet, though he is a bit shy...but quiet is the wrong term, because when he wan't to know something, no matter how inappropriate, he wants to know it loudly and now...

Not a fit, but...there was one time where we tried to explain melanin to him because he wanted to know why one of the ladies at the company get together was "darker than him".

Not in a racist way, he just didn't understand it...

And, thankfully, she wasn't upset (knowing his condition, and she's a smart lady)...jeezus, I couldn't imagine how that could have flown out of control if she'd gotten irritated by it instead of being quietly thoughtful and responding after thought instead of strictly emotions.

 

[arko]

He may surprise you. Not every high dollar work is mental work.

I know I'm preaching to a choir here, but, as long as you think outside the box and love and support him (which you obviously do), he'll be fine.

I just get upset with the "my child will never" attitude many take.

An employee of mine has a child on the scale, and he is just like you. The work through it, but they don't treat him all that much differently than I treated my child. And, I've been over to their house, I've been to weekend retreats with them...and their kid is very well behaved in public (not quiet, though he is a bit shy...but quiet is the wrong term, because when he wan't to know something, no matter how inappropriate, he wants to know it loudly and now...

Not a fit, but...there was one time where we tried to explain melanin to him because he wanted to know why one of the ladies at the company get together was "darker than him".

Not in a racist way, he just didn't understand it...

And, thankfully, she wasn't upset (knowing his condition, and she's a smart lady)...jeezus, I couldn't imagine how that could have flown out of control if she'd gotten irritated by it instead of being quietly thoughtful and responding after thought instead of strictly emotions.

The issue is not intelligence, but social behavior, as your posts indicate, not everyone will be so understanding. Like any parent you do your best but a certain amount of it is just out of your control.

 

[PhotoDave219]

Speaking as an adult with ASD...this is just ridiculous. ASD doesn't magically vanish when you become an adult - children with ASD grow up to become adults with ASD, and even if they manage to adapt and develop coping mechanisms as they get older to deal with various symptoms or sensory issues, it doesn't make them any less autistic. It's not something you "grow out of".

Nicely put.

The poster you are referring to has been trolling for responses on this and previous threads.

They're just looking for attention.

 

[englanddg]

The issue is not intelligence, but social behavior, as your posts indicate, not everyone will be so understanding. Like any parent you do your best but a certain amount of it is just out of your control.

I wholly get that it's a complex challenge. And, if I had advice, I'd give it.

I'm only halfway through this journey of my own child, and I'm about to enter the teenage years where I lose my sweet little girl and get, most likely...Katy Kaboom.



Kids grow up, but it's chess, not checkers. Part of our job as Parents, and it does suck (and no, I'm not perfect at it...ever) is to try and stay ahead whilst also anticipating the situations.

That said, you can't let them BECOME you either.

I'm getting off of the larger topic, but I wanted to say that just because, I wish you guys luck. I hope (and actually believe) that your kid is going to be just fine. That said, I bet you never stop worrying about it. And, that has nothing to do with Autism...and everything to do with being a parent. <wink>

 

[ParentsOf4]

I'll say this about the chances of a lawsuit of this nature actually producing the stated desired results (not the money part), it will likely fail. Just perusing through the published DOJ's title 3 highlights covering this area, I find only one section (roman numeral V) that might be vague enough to clutch for something unprecedented.

A public accommodation must make reasonable modifications in its policies, practices, and procedures in order to accommodate individuals with disabilities.

An argument has been made (and very well) that Disney has already done that. In fact, they have gone beyond what most other similar entities provide.@Kate Alan

This topic last came up a couple of months ago when Disney lost the determination by the Florida Commission on Human Relations. In their findings, the Commission wrote:

Complainant alleged that her son was denied the full enjoyment of the public accommodation and the findings of this investigation support that allegation. While an accommodation was offered, it was a blanket accommodation that did not take into account the nuances between various disabilities or the fact that Complainant’s son’s disability required more assistance than other cognitive disabilities. The accommodations offered would not allow him to enjoy the park as it was intended to be enjoyed by all other patrons. In addition, there was no effort by Respondent [i.e. Disney] to determine a suitable accommodation for her son which would allow him to fully enjoy the park.

Accordingly, there is reason to believe Respondent denied Complainant’s son the full enjoyment of the establishment because of a disability and a cause finding is recommended.​

At the time, I posted the following long-winded explanation of what I believe to be the legal principles involved. Hopefully, it will help everyone better understand the lawsuit.

The Americans with Disabilities Act (ADA) was passed in 1990 and strengthened in 2008. It passed with near-unanimous support from both Democrats and Republicans. The two parties might be partisan on most issues, but ADA is not one of them.

ADA protects those with physical or mental disabilities from discrimination. ADA specifies that discrimination occurs when there is “a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.”

ADA applies to private companies such as Disney that sell goods or services to the public. Amusement parks are specifically cited in ADA. By law, WDW must comply with ADA.

ADA requires Disney to take proactive steps to eliminate discrimination due to disability at its theme parks.

For those with mobility issues, Disney must build ramps, provide accessible buses, and alter hotel rooms. Disney must provide braille menus or alternatives for the blind. Disney must assist those with hearing disabilities. Disney has spent tens-of-millions of dollars in order to comply with this aspect of ADA.

Disney also must do something for those with mental disabilities, which is why it created the Disability Access Service (DAS). To be clear, Disney did not create DAS because it is being magnanimous. It created DAS because Disney is legally obligated to create something like it. As a well-established mental disability, Disney must make modifications in order to accommodate those with Autism.

ADA has limitations. It uses terms such as “reasonable modifications” and “fundamentally alter” to define those limits. (I’ll explain these in a bit.) Above all, ADA places safety first. Safety trumps the rest of ADA. Companies sometimes try to stretch the definition of safety because they know if they win this argument, they’ll win the case.

Some ADA cases have made it to the U.S. Supreme Court. In a relatively well-known case, a PGA golfer with a physical disability wanted to use a golf cart during tournament play. The PGA fought him and lost.

One of the footnotes in this PGA v. Martin ruling outlines the basic legal principles the Courts consider when making an ADA ruling:

As we have noted, the statute contemplates three inquiries: whether the requested modification is "reasonable," whether it is "necessary" for the disabled individual, and whether it would "fundamentally alter the nature of" the competition.​

For the plaintiffs in the Disney lawsuit to win their case, they must prevail on all 3 points.

Necessary Modification

The plaintiffs must show that what is being requested is a “necessary” modification.

This is where I believe the plaintiffs’ case is weakest.

A necessary modification means the modification is required in order to accommodate the disability. In most successful ADA lawsuits, the plaintiffs’ need for the modification is obvious. Often it is uncontested.

In the Disney lawsuit, neither side disputes that some modification is necessary. However, the two sides disagree on how much of a modification is needed.

Disney has offered the plaintiffs DAS, a fair modification. The plaintiffs claim that DAS is insufficient.

For this point, the plaintiffs need to show that the modifications they seek are necessary, which is made more difficult given Disney’s willingness to provide them with something that's fair.

Prior rulings suggest that it’s insufficient for the plaintiffs to get on the stand and claim, “I need this modification.” A statement of need is not proof of need, and the Courts generally have not showed much sympathy for this tactic. Usually, it requires corroborative evidence to support the claim. Autism is a well-established mental disability but getting on the stand and crying about “my child’s life challenges” is not going to win the case in court.

IMO, the plaintiffs need to present expert medical testimony to support their claim. If they don’t, then prior rulings suggest Disney will win.

Even if the plaintiffs present expert testimony, Disney can counter with its own experts. It could come down to a judge deciding whose testimony is more persuasive.

One thing to keep in mind is that Autism is a spectrum disorder. What works for one person with Autism might not work for another. Thus, the Commission's finding that Disney discriminated wasn’t because Disney failed to provide a modification; it was because DAS was a “blanket accommodation that did not take into account the nuances between various disabilities.”

Reasonable Modification

Prior rulings suggest that the Courts do not define a “reasonable modification” to be one that’s ‘fair’ or ‘equal’ to those without disabilities. The Courts don’t seem to be applying the “reasonable person” standard to this. Instead, the Courts have ruled that it’s perfectly acceptable to provide those with disabilities with preferential treatment, if this preferential treatment is needed in order to accommodate the disability.

Taking this one step further, the U.S. Supreme Court ruled that an “accommodation is not reasonable if it imposes undue financial and administrative burdens.” Thus, it appears that the correct interpretation of an “unreasonable modification” is one that creates an excessive burden for the defendant (i.e. Disney).

Given Disney’s considerable financial resources along with the existence of FP/FP+ entrances (which is what the plaintiffs appear to be seeking), I don’t see how Disney wins this point.

Fundamental Alteration

Unlike the first two points, the burden of proving that something is a “fundamental alteration” is on the defendant (i.e. Disney).

Generally, the Courts have used a high standard when determining whether something is a fundamental alteration. An alteration does not make it a fundamental alteration. The use of the qualifier “fundamental” explains why the Courts have used this high standard.

Based on the reasoning applied in PGA v. Martin, it appears that if an entity has a way to easily modify its rules in order to accommodate a disability, then it does not rise to the standard of a fundamental alteration.

Disney already offers FP and FP+, which offer limited express line access to all Guests. Furthermore, front line supervisors have the authority to distribute additional complementary FP/FP+ for numerous reasons. Providing additional complementary FP/FP+ in order to accommodate a legally protected disability certainly would not seem to constitute a fundamental alteration.

As with "reasonable modification", don’t confuse “fundamental alteration” with ‘fair’. You and I might think it’s unfair for someone with a disability to receive preferential treatment. However, this does not fundamentally alter the nature of an attraction, especially since Disney already offers an express line for most attractions. The allotment of FP+ is a rule that Disney easily could modify to accommodate someone with a disability.

What would I consider to be a fundamental alteration?

IMO, requiring a roller coaster to operate at (for example) 5 MPH to accommodate a person’s disability would be a fundamental alteration. By its very nature, a roller coaster is fast and bumpy. Slowing it down to 5 MPH would be a fundamental alteration. It would alter its essence.

What does it mean?

According to the Commission's report, Disney argued that the “Complainant has failed to show that the DAS card program has not accommodated their disability. It reasonably accommodates guests with disabilities who are not able to wait in a conventional queue environment and provides the level of accommodation required by law.” I believe this is in response to the “necessary modification” inquiry. IMO, this is Disney’s best line of attack.

The Commission is not a court of law, and I believe they simply took the plaintiff's word that the requested modification was needed. In court, I believe the plaintiff will need to present a stronger case in order to win.

 

[1023]

the one part of the federal suit that might have some teeth is the stated policy that Disney will work with families individual needs as stated on their web site

There is quite a bit of evidence that shows this has not been happening. What the judge will do about this is anyone's guess if he/she does anything at all.

If Disney listened to their concern and followed the original stated GAC P&P then they followed their own policy. Even if they didn't listen, the fact that they made the accomodation (as I mentioned, over and above what many similar entities do) they've more than met the federal standard. Asking a court to determine something over and above the ADA requirement is going to be a hard sell. Again, if the DOJ takes this on, it means there is a real issue. No DOJ, it's a cash grab.

*1023*

I'll ask this question again. If this somehow succeeds in the stated goal of re-instating a policy akin to FotL access, how long will it be until the GAC line becomes the regular line?

 

[BuzzKillington]

It's not something you "grow out of".

Some children outgrow autism: study
In a small study, 34 people who were diagnosed with autism at an early age showed no signs of it by ages 18-21. That's encouraging, say experts, and may lead to new discoveries about how to help children with autism make progress through therapy.
http://www.nydailynews.com/life-style/health/children-outgrow-autism-study-article-1.1244464

Key word is therapy, you know, like having to learn to manage a queue at Disney therapy.

 

[arko]

If Disney listened to their concern and followed the original stated GAC P&P then they followed their own policy. Even if they didn't listen, the fact that they made the accomodation (as I mentioned, over and above what many similar entities do) they've more than met the federal standard. Asking a court to determine something over and above the ADA requirement is going to be a hard sell. Again, if the DOJ takes this on, it means there is a real issue. No DOJ, it's a cash grab.

*1023*

I'll ask this question again. If this somehow succeeds in the stated goal of re-instating a policy akin to FotL access, how long will it be until the GAC line becomes the regular line?

It's your opinion they have met the federal standard, the only opinion that matters is a judge. In fact theFlorida Commission on Human Relations has ruled in 5 cases so far that Disney has not met the federal standard.

Here are 2 of the rulings

https://pmcdeadline2.files.wordpres...ustic-kids-lawsuit-florida-state-agency-1.pdf
https://pmcdeadline2.files.wordpress.com/2015/03/disney-autistic-kids-lawsuit-florida-agency-2.pdf

the determination of findings from the investigator concluded the following

SUMMARY OF INVESTIGATIVE FINDINGS
Complainant alleged that her son was denied the full enjoyment of the public accommodation and the findings of this investigation support that allegation. While an accommodation was offered, it was a blanket accommodation that did not take into account the nuances between various disabilities or the fact that Complainant’s son’s disability required more assistance than other cognitive disabilities. The accommodations offered would not allow him to enjoy the park as it was intended to be enjoyed by all other patrons. In addition, there was no effort by Respondent to determine a suitable accommodation for her son which would allow him to fully enjoy the park.

Now Florida has not actually pushed those findings as it is most likely awaiting the Federal outcome. But its shows that the case is not frivolous to everyone including state agencies.

 

[englanddg]

This topic last came up a couple of months ago when Disney lost the case before the Florida Commission on Human Relations. In their findings, the Commission wrote:

Complainant alleged that her son was denied the full enjoyment of the public accommodation and the findings of this investigation support that allegation. While an accommodation was offered, it was a blanket accommodation that did not take into account the nuances between various disabilities or the fact that Complainant’s son’s disability required more assistance than other cognitive disabilities. The accommodations offered would not allow him to enjoy the park as it was intended to be enjoyed by all other patrons. In addition, there was no effort by Respondent [i.e. Disney] to determine a suitable accommodation for her son which would allow him to fully enjoy the park.

Accordingly, there is reason to believe Respondent denied Complainant’s son the full enjoyment of the establishment because of a disability and a cause finding is recommended.​

At the time, I posted the following long-winded explanation of what I believe to be the legal principles involved. Hopefully, it will help everyone better understand the lawsuit.

The Americans with Disabilities Act (ADA) was passed in 1990 and strengthened in 2008. It passed with near-unanimous support from both Democrats and Republicans. The two parties might be partisan on most issues, but ADA is not one of them.

ADA protects those with physical or mental disabilities from discrimination. ADA specifies that discrimination occurs when there is “a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.”

ADA applies to private companies such as Disney that sell goods or services to the public. Amusement parks are specifically cited in ADA. By law, WDW must comply with ADA.

ADA requires Disney to take proactive steps to eliminate discrimination due to disability at its theme parks.

For those with mobility issues, Disney must build ramps, provide accessible buses, and alter hotel rooms. Disney must provide braille menus or alternatives for the blind. Disney must assist those with hearing disabilities. Disney has spent tens-of-millions of dollars in order to comply with this aspect of ADA.

Disney also must do something for those with mental disabilities, which is why it created the Disability Access Service (DAS). To be clear, Disney did not create DAS because it is being magnanimous. It created DAS because Disney is legally obligated to create something like it. As a well-established mental disability, Disney must make modifications in order to accommodate those with Autism.

ADA has limitations. It uses terms such as “reasonable modifications” and “fundamentally alter” to define those limits. (I’ll explain these in a bit.) Above all, ADA places safety first. Safety trumps the rest of ADA. Companies sometimes try to stretch the definition of safety because they know if they win this argument, they’ll win the case.

Some ADA cases have made it to the U.S. Supreme Court. In a relatively well-known case, a PGA golfer with a physical disability wanted to use a golf cart during tournament play. The PGA fought him and lost.

One of the footnotes in this PGA v. Martin ruling outlines the basic legal principles the Courts consider when making an ADA ruling:

As we have noted, the statute contemplates three inquiries: whether the requested modification is "reasonable," whether it is "necessary" for the disabled individual, and whether it would "fundamentally alter the nature of" the competition.​

For the plaintiffs in the Disney lawsuit to win their case, they must prevail on all 3 points.

Necessary Modification

The plaintiffs must show that what is being requested is a “necessary” modification.

This is where I believe the plaintiffs’ case is weakest.

A necessary modification means the modification is required in order to accommodate the disability. In most successful ADA lawsuits, the plaintiffs’ need for the modification is obvious. Often it is uncontested.

In the Disney lawsuit, neither side disputes that some modification is necessary. However, the two sides disagree on how much of a modification is needed.

Disney has offered the plaintiffs DAS, a fair modification. The plaintiffs claim that DAS is insufficient.

For this point, the plaintiffs need to show that the modifications they seek are necessary, which is made more difficult given Disney’s willingness to provide them with something that's fair.

Prior rulings suggest that it’s insufficient for the plaintiffs to get on the stand and claim, “I need this modification.” A statement of need is not proof of need, and the Courts generally have not showed much sympathy for this tactic. Usually, it requires corroborative evidence to support the claim. Autism is a well-established mental disability but getting on the stand and crying about “my child’s life challenges” is not going to win the case in court.

IMO, the plaintiffs need to present expert medical testimony to support their claim. If they don’t, then prior rulings suggest Disney will win.

Even if the plaintiffs present expert testimony, Disney can counter with its own experts. It could come down to a judge deciding whose testimony is more persuasive.

One thing to keep in mind is that Autism is a spectrum disorder. What works for one person with Autism might not work for another. Thus, the Commission's finding that Disney discriminated wasn’t because Disney failed to provide a modification; it was because DAS was a “blanket accommodation that did not take into account the nuances between various disabilities.”

Reasonable Modification

Prior rulings suggest that the Courts do not define a “reasonable modification” to be one that’s ‘fair’ or ‘equal’ to those without disabilities. The Courts don’t seem to be applying the “reasonable person” standard to this. Instead, the Courts have ruled that it’s perfectly acceptable to provide those with disabilities with preferential treatment, if this preferential treatment is needed in order to accommodate the disability.

Taking this one step further, the U.S. Supreme Court ruled that an “accommodation is not reasonable if it imposes undue financial and administrative burdens”. Thus, it appears that the correct interpretation of an “unreasonable modification” is one that creates an excessive burden for the defendant (i.e. Disney).

Given Disney’s considerable financial resources, I don’t see how Disney wins this point.

Fundamental Alteration

Unlike the first two points, the burden of proving that something is a “fundamental alteration” is on the defendant (i.e. Disney).

Generally, the Courts have used a high standard when determining whether something is a fundamental alteration. An alteration does not make it a fundamental alteration. The use of the qualifier “fundamental” explains why the Courts have used this high standard.

Based on the reasoning applied in PGA v. Martin, it appears that if an entity has a way to easily modify its rules in order to accommodate a disability, then it does not rise to the standard of a fundamental alteration.

Disney already offers FP and FP+, which offer limited express line access to all Guests. Furthermore, front line supervisors have the authority to distribute additional complementary FP/FP+ for numerous reasons. Providing additional complementary FP/FP+ in order to accommodate a legally protected disability certainly would not seem to constitute a fundamental alteration.

As with "reasonable modification", don’t confuse “fundamental alteration” with ‘fair’. You and I might think it’s unfair for someone with a disability to receive preferential treatment. However, this does not fundamentally alter the nature of an attraction, especially since Disney already offers an express line for most attractions. The allotment of FP+ is a rule that Disney easily could modify to accommodate someone with a disability.

What would I consider to be a fundamental alteration?

IMO, requiring a roller coaster to operate at (for example) 5 MPH to accommodate a person’s disability would be a fundamental alteration. By its very nature, a roller coaster is fast and bumpy. Slowing it down to 5 MPH would be a fundamental alteration. It would alter its essence.

What does it mean?

According to the Commission's report, Disney argued that the “Complainant has failed to show that the DAS card program has not accommodated their disability. It reasonably accommodates guests with disabilities who are not able to wait in a conventional queue environment and provides the level of accommodation required by law.” I believe this is in response to the “necessary modification” inquiry. IMO, this is Disney’s best line of attack.

The Commission is not a court of law, and I believe they simply took the plaintiff's word that the requested modification was needed. In Court, I believe the plaintiff will need to present a stronger case in order to win.

No. The issue is that the Courts have been gradually moving from judging the OBJECTIVE argument, and instead increasingly allowing the substance of SUBJECTIVE argument.

The latter should have no place in civil law. Civil law, contract law, and the like, are the proper domain of pure logic.

For those unfamiliar, here's how this would play out.

Disney makes the objective case:

"Did they get to ride the ride? Yes"
"Did they have a longer wait time than any other Guest? No."
"Were they offered accommodation for their stated, at the time, distaste of lines? Yes."
(I could go on, but I think you get the idea)

The opposition (and it is opposition, not "plaintiff"...these people are out to "get Disney" for taking this away...it wouldn't be going on this far and this long if it wasn't personal to them at some level, and I don't mean that they are reasonable, I say that to show they are the exact opposite)...jeez, I wish I'd screencapped Autism Hippies videos...lesson learned...

So, here is the Subjective case:

"My kid hates lines, and there's still a line!"
"My kid will LASH OUT at anyone at any time unless he gets his way right now, so if you say he can't ride the Great Movie Ride one more time, I'm not sure I can control him!"
(ok, I exaggerate...that's just ONE of the 50 some odd families, I'm VERY sure she's in that group though)...

Subjective, in all seriousness, is more like this (and think about this as you read the judgements).

"My child couldn't enjoy the park as much as other children."

(how the heck do you know how much other children enjoyed the park? My kiddo HATES lines too!)

"My child gets hot and irritable, and that causes a problem with other guests."

(right, well, I've had to exit a line with my kiddo as well, and we went off first to a corner of the park to have a session to calm her down, and then we went off and did something else. The art of authority and redirection.)

List could go on, with responses...

But that is for a completely different discussion.

 

[PhotoDave219]

It's your opinion they have met the federal standard, the only opinion that matters is a judge. In fact theFlorida Commission on Human Relations has ruled in 5 cases so far that Disney has not met the federal standard.

Here are 2 of the rulings

https://pmcdeadline2.files.wordpres...ustic-kids-lawsuit-florida-state-agency-1.pdf
https://pmcdeadline2.files.wordpress.com/2015/03/disney-autistic-kids-lawsuit-florida-agency-2.pdf

the determination of findings from the investigator concluded the following



Now Florida has not actually pushed those findings as it is most likely awaiting the Federal outcome. But its shows that the case is not frivolous to everyone including state agencies.

Any idea on the timetable before any of these cases sees a judge?

 

[PhotoDave219]

Some children outgrow autism: study
In a small study, 34 people who were diagnosed with autism at an early age showed no signs of it by ages 18-21. That's encouraging, say experts, and may lead to new discoveries about how to help children with autism make progress through therapy.
http://www.nydailynews.com/life-style/health/children-outgrow-autism-study-article-1.1244464

Key word is therapy, you know, like having to learn to manage a queue at Disney therapy.

This has nothing to do with ADA or the law or whether or not Disney must comply with it.

Spoiler

They do.

 

[arko]

Some children outgrow autism: study
In a small study, 34 people who were diagnosed with autism at an early age showed no signs of it by ages 18-21. That's encouraging, say experts, and may lead to new discoveries about how to help children with autism make progress through therapy.
http://www.nydailynews.com/life-style/health/children-outgrow-autism-study-article-1.1244464

Key word is therapy, you know, like having to learn to manage a queue at Disney therapy.

From the study

But the authors emphasized that the study offers no insight on what percentage of children with autism spectrum disorder, or ASD, will grow out of their diagnosis.

"All children with ASD are capable of making progress with intensive therapy, but with our current state of knowledge most do not achieve the kind of optimal outcome that we are studying," said lead author Fein.

"Our hope is that further research will help us better understand the mechanisms of change so that each child can have the best possible life."

What you have to understand is that therapy doesn't make it go away just gives the child the tools to cope and grow, but that therapy and that process isn't always as simple as making them wait in a line. They have to be taught how to do so without "losing" it. Which sometimes means starting off with a short line.

 

[1023]

This topic last came up a couple of months ago when Disney lost the case before the Florida Commission on Human Relations. In their findings, the Commission wrote:

Complainant alleged that her son was denied the full enjoyment of the public accommodation and the findings of this investigation support that allegation. While an accommodation was offered, it was a blanket accommodation that did not take into account the nuances between various disabilities or the fact that Complainant’s son’s disability required more assistance than other cognitive disabilities. The accommodations offered would not allow him to enjoy the park as it was intended to be enjoyed by all other patrons. In addition, there was no effort by Respondent [i.e. Disney] to determine a suitable accommodation for her son which would allow him to fully enjoy the park.

Accordingly, there is reason to believe Respondent denied Complainant’s son the full enjoyment of the establishment because of a disability and a cause finding is recommended.​

At the time, I posted the following long-winded explanation of what I believe to be the legal principles involved. Hopefully, it will help everyone better understand the lawsuit.

The Americans with Disabilities Act (ADA) was passed in 1990 and strengthened in 2008. It passed with near-unanimous support from both Democrats and Republicans. The two parties might be partisan on most issues, but ADA is not one of them.

ADA protects those with physical or mental disabilities from discrimination. ADA specifies that discrimination occurs when there is “a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.”

ADA applies to private companies such as Disney that sell goods or services to the public. Amusement parks are specifically cited in ADA. By law, WDW must comply with ADA.

ADA requires Disney to take proactive steps to eliminate discrimination due to disability at its theme parks.

For those with mobility issues, Disney must build ramps, provide accessible buses, and alter hotel rooms. Disney must provide braille menus or alternatives for the blind. Disney must assist those with hearing disabilities. Disney has spent tens-of-millions of dollars in order to comply with this aspect of ADA.

Disney also must do something for those with mental disabilities, which is why it created the Disability Access Service (DAS). To be clear, Disney did not create DAS because it is being magnanimous. It created DAS because Disney is legally obligated to create something like it. As a well-established mental disability, Disney must make modifications in order to accommodate those with Autism.

ADA has limitations. It uses terms such as “reasonable modifications” and “fundamentally alter” to define those limits. (I’ll explain these in a bit.) Above all, ADA places safety first. Safety trumps the rest of ADA. Companies sometimes try to stretch the definition of safety because they know if they win this argument, they’ll win the case.

Some ADA cases have made it to the U.S. Supreme Court. In a relatively well-known case, a PGA golfer with a physical disability wanted to use a golf cart during tournament play. The PGA fought him and lost.

One of the footnotes in this PGA v. Martin ruling outlines the basic legal principles the Courts consider when making an ADA ruling:

As we have noted, the statute contemplates three inquiries: whether the requested modification is "reasonable," whether it is "necessary" for the disabled individual, and whether it would "fundamentally alter the nature of" the competition.​

For the plaintiffs in the Disney lawsuit to win their case, they must prevail on all 3 points.

Necessary Modification

The plaintiffs must show that what is being requested is a “necessary” modification.

This is where I believe the plaintiffs’ case is weakest.

A necessary modification means the modification is required in order to accommodate the disability. In most successful ADA lawsuits, the plaintiffs’ need for the modification is obvious. Often it is uncontested.

In the Disney lawsuit, neither side disputes that some modification is necessary. However, the two sides disagree on how much of a modification is needed.

Disney has offered the plaintiffs DAS, a fair modification. The plaintiffs claim that DAS is insufficient.

For this point, the plaintiffs need to show that the modifications they seek are necessary, which is made more difficult given Disney’s willingness to provide them with something that's fair.

Prior rulings suggest that it’s insufficient for the plaintiffs to get on the stand and claim, “I need this modification.” A statement of need is not proof of need, and the Courts generally have not showed much sympathy for this tactic. Usually, it requires corroborative evidence to support the claim. Autism is a well-established mental disability but getting on the stand and crying about “my child’s life challenges” is not going to win the case in court.

IMO, the plaintiffs need to present expert medical testimony to support their claim. If they don’t, then prior rulings suggest Disney will win.

Even if the plaintiffs present expert testimony, Disney can counter with its own experts. It could come down to a judge deciding whose testimony is more persuasive.

One thing to keep in mind is that Autism is a spectrum disorder. What works for one person with Autism might not work for another. Thus, the Commission's finding that Disney discriminated wasn’t because Disney failed to provide a modification; it was because DAS was a “blanket accommodation that did not take into account the nuances between various disabilities.”

Reasonable Modification

Prior rulings suggest that the Courts do not define a “reasonable modification” to be one that’s ‘fair’ or ‘equal’ to those without disabilities. The Courts don’t seem to be applying the “reasonable person” standard to this. Instead, the Courts have ruled that it’s perfectly acceptable to provide those with disabilities with preferential treatment, if this preferential treatment is needed in order to accommodate the disability.

Taking this one step further, the U.S. Supreme Court ruled that an “accommodation is not reasonable if it imposes undue financial and administrative burdens.” Thus, it appears that the correct interpretation of an “unreasonable modification” is one that creates an excessive burden for the defendant (i.e. Disney).

Given Disney’s considerable financial resources, I don’t see how Disney wins this point.

Fundamental Alteration

Unlike the first two points, the burden of proving that something is a “fundamental alteration” is on the defendant (i.e. Disney).

Generally, the Courts have used a high standard when determining whether something is a fundamental alteration. An alteration does not make it a fundamental alteration. The use of the qualifier “fundamental” explains why the Courts have used this high standard.

Based on the reasoning applied in PGA v. Martin, it appears that if an entity has a way to easily modify its rules in order to accommodate a disability, then it does not rise to the standard of a fundamental alteration.

Disney already offers FP and FP+, which offer limited express line access to all Guests. Furthermore, front line supervisors have the authority to distribute additional complementary FP/FP+ for numerous reasons. Providing additional complementary FP/FP+ in order to accommodate a legally protected disability certainly would not seem to constitute a fundamental alteration.

As with "reasonable modification", don’t confuse “fundamental alteration” with ‘fair’. You and I might think it’s unfair for someone with a disability to receive preferential treatment. However, this does not fundamentally alter the nature of an attraction, especially since Disney already offers an express line for most attractions. The allotment of FP+ is a rule that Disney easily could modify to accommodate someone with a disability.

What would I consider to be a fundamental alteration?

IMO, requiring a roller coaster to operate at (for example) 5 MPH to accommodate a person’s disability would be a fundamental alteration. By its very nature, a roller coaster is fast and bumpy. Slowing it down to 5 MPH would be a fundamental alteration. It would alter its essence.

What does it mean?

According to the Commission's report, Disney argued that the “Complainant has failed to show that the DAS card program has not accommodated their disability. It reasonably accommodates guests with disabilities who are not able to wait in a conventional queue environment and provides the level of accommodation required by law.” I believe this is in response to the “necessary modification” inquiry. IMO, this is Disney’s best line of attack.

The Commission is not a court of law, and I believe they simply took the plaintiff's word that the requested modification was needed. In court, I believe the plaintiff will need to present a stronger case in order to win.

It will be hard for a plaintiff to show that with a fully planned out day full of unlimited fastpasses is not a reasonable accommodation. The experts will offset each other. I think there are other areas for argument if need be, but as you said, those other weights fall on Disney.

*1023*

 

[BuzzKillington]

Nicely put.

The poster you are referring to has been trolling for responses on this and previous threads.

They're just looking for attention.

Trolling to you is passion to me.

 

[PhotoDave219]

Trolling to you is passion to me.

That is also not germane to ADA law and the merits of the cases that are being discussed.

You want to hate on disabled people? Find a different message board to do it on.

 

[arko]

Any idea on the timetable before any of these cases sees a judge?

According their website the next steps are as follows

Notification – You will be notified of the Commission’s determination and will receive instructions on how to seek the remedies provided for under the law, which could result in a hearing or civil action in a court of law.

The case has already been brought to court. At this point the determination just serves as ammunition for the plaintiff.

Edit the FAQ provides some further info

PUBLIC ACCOMMODATIONS--Civil money damages and punitive damages against any kind of public entity that denies service or access

 

[englanddg]

If Disney listened to their concern and followed the original stated GAC P&P then they followed their own policy. Even if they didn't listen, the fact that they made the accomodation (as I mentioned, over and above what many similar entities do) they've more than met the federal standard. Asking a court to determine something over and above the ADA requirement is going to be a hard sell. Again, if the DOJ takes this on, it means there is a real issue. No DOJ, it's a cash grab.

*1023*

I'll ask this question again. If this somehow succeeds in the stated goal of re-instating a policy akin to FotL access, how long will it be until the GAC line becomes the regular line?

I think you are 100% correct.

This is a civil suit designed to buy lawyers new suits (on both sides...)

That said, what got Disney into all this trouble in the first place WAS trying to make magic and accomodate.

Note the GAC card.

Unedited.

But, because people can't seem to know how to READ....

I highlighted the important bits.

The PROGRAM was NEVER designed for what it became. That was all Park Operations folks...kids on their DCP and the like, trying to do well and "make magic" for a Guest...a Guest who just won't say "thanks, that's awesome"...rather will say, "oh, you are busy today? SCREW THAT WHERE IS MY FRONT OF THE LINE PASS! DON'T YOU KNOW MY SON IS DISABLED YOU RACIST SON OF A DONKEY? I'M GOING TO SUE YOU AND YOUR COMPANY AND GET YOU FIRED....