No Time-and-a-Half Accommodation for Allegedly Disabled Pro Se Litigant

From Chief Judge Beth Phillips' opinion today in Kyndryl, Inc. v. Cannady (W.D. Mo.):

Defendant alleges that, due to PTSD and related anxiety and panic attacks, he cannot personally appear for any hearings or trials, nor can he participate in hearings or conferences by video or telephone. He also claims that he needs extra time to respond to motions, and requests a blanket, 50% extension to all of his deadlines. The ADA applies to "public entities," 42 U.S.C. § 12132, but the federal judiciary is not a "public entity" within the meaning of the ADA. 42 U.S.C. § 12131(1).

Nonetheless, the Court strives to provide reasonable accommodations—but the accommodations Defendant seeks are not reasonable. First, the Court cannot decree that there will never be a hearing, trial, or other proceeding requiring Defendant's participation. {The Court expresses no view on whether Defendant has substantiated the need for such an accommodation.} Given the nature of the Court's operations and how lawsuits are conducted, such a commitment is impossible.

Second, the note from three years ago indicating Plaintiff needs "time and a half for education purposes" does not necessarily suggest all deadlines—including deadlines outside of an educational setting—need to be extended. Regardless, the request for a blanket extension of all deadlines is unreasonable. Some deadlines, particularly for routine matters, likely need not be extended—but doing so will unnecessarily. prolong the case. As is the case for all litigants, Defendant is free to request a reasonable extension of time to respond in those specific instances in which he needs more time.

Comments

[Rev. Arthur L. Kirkland]

Should have based the request for snowflake treatment on a religious claim . . . but how is a pro se litigant to know about the remarkable, ever-expanding special privileges recently recognized with respect to superstition?

[loki13]

I. Hate. People.

It has recently come to my attention that there are a small number of very privileged kids who apply for, and get, exemptions to all sorts of testing regimens (usually consisting of the proverbial "extra time") who do not need it.

It makes a mockery of the process for everyone else, and does a severe disservice for the people that it was intended for.

File this under "Why we can't have nice things," along with the ever-present "I need to have my toy chihuahua with me as my emotional support animal."

[ReaderY]

You just noticed this?

A big feature of right-wing populist objections to this and similar measures is an argument that this is the normal situation, that is, they argue the benefits go primarily to rich, well-connected people who are able to use and manipulate these rules to gain unfair advantage over others.

You’ve been defending these rules for years, portraying opponents as motivated solely by bigotry. If you’ve only just now noticed that some of the concerns are in fact at least occasionally valid, you’ve been missing a lot. Now thet you’re aware of this, perhaps you might also realize that your unalloyed, unconditional bigotry arguments play into the hands of, indeed reinforce the arguments of, people who claim that the rich and powerful grab benefits and advantages for themselves in part by fomenting superious bigotry charges against people less fortunate than themselves who object to their manipulating the rules to shove themselves into the front of the queue, and they foment these charges to stifle fair competition.

Sometimes one can’t get anywhere without realizing that what the other side has to say is partially true, even if not the whole truth.

[Dilan Esper]

Loki's very smart and I'm surprised he/she just noticed this. Slate magazine wrote about it a decade and a half ago and even collected data that the supposed "learning disabilities" were all concentrated in America's richest zip codes. Nonetheless, disability rights activists and academics were aghast at any suggestion that extra time be gatekept or even denoted with an asterisk, let alone to any argument that the ability to think on one's feet is part of what is being tested.

Here's the Slate article:

https://slate.com/technology/2006/05/taking-the-sat-untimed.html

More generally, the Left has a big problem that it doesn't really want to police cheating, and this becomes a threat to its programs. I wrote about that here:

https://dilanesper.substack.com/p/the-left-has-a-problem-with-cheaters

[Rev. Arthur L. Kirkland]

the Left has a big problem that it doesn’t really want to police cheating

Maybe the Left will police cheating much the way the Right does . . . by letting cheaters hide behind "religious freedom" claims.

[Dilan Esper]

Since you bring it up, absolutely the Right has a problem on cheating in the religious freedom area. It's perfectly clear that both Hobby Lobby and Lorrie Smith were lying about their religious beliefs. I mentioned stolen valor/veteran's benefits as an area where cheating impacts the Right in my piece, but religious freedom cases is definitely another.

But cheating is a bigger problem for the Left because generally the Left is the side advocating Big Government, and a lot of cheating occurs in programs to aid the disadvantaged.

[Rev. Arthur L. Kirkland]

It’s perfectly clear that both Hobby Lobby and Lorrie Smith were lying about their religious beliefs.

I was thinking more of the antisocial kooks dodging vaccinations "for religious reasons."

[ReaderY]

I agree that there is a big problem with cheating in the religious freedom area. I have periodically suggested stricter tests for sincerity and similar measures exactly to avoid having a strong interpretation of constitutional religious rights lead to widespread cheating by people who use sham religious claims to avoid their obligations.

I understand you think all religion is a sham. But there is a big difference between sincere religious belief and manipulating religion law to get ones way as a legal strategy.

[KRB]

Your Substack piece was excellent.

[Dilan Esper]

Thank you!

[loki13]

"You’ve been defending these rules for years, portraying opponents as motivated solely by bigotry."

Say what? You really have no idea what I post about, do you? Seriously, this is the most unhinged screed I've seen, and shows a shocking lack of knowledge about the subjects I talk about. Go eff yourself. Really.

Anyway, going to the more serious point re: what Dilan wrote.

I knew vaguely that it was a problem. What I meant to imply is that I actually gained first-hand knowledge of it recently (as in, not just some reporting). For various reasons I don't want to go into, I have had a lot of involvement with high school kids the last couple of years, and I was shocked to learn that several of them ... who are at the top of their class ... and from very well-off families ... were abusing the system like this.

It's one thing to "know it" because it's reported. It's another thing to see it in action. It makes the skin crawl.

That said, I wouldn't say that "the left" doesn't want to police cheating. I think that cheating tends to evoke the same sense of moral outrage - that violation of basic fairness - with most people. I do think that different people, in the aggregate, will have higher or lower tolerances in different programs in terms of, for lack of a better term ... benefit and waste, and the costs of policing compliance.

[Dilan Esper]

That said, I wouldn’t say that “the left” doesn’t want to police cheating. I think that cheating tends to evoke the same sense of moral outrage – that violation of basic fairness – with most people. I do think that different people, in the aggregate, will have higher or lower tolerances in different programs in terms of, for lack of a better term … benefit and waste, and the costs of policing compliance.

I don't think that what I see from, for instance, the Disability Rights Community or academics on the learning disabilities stuff reflects actual cost-benefit analysis. I think it reflects a combination of simply not accepting that people lie about stuff to get clout or benefits (at least outside the context of race-- everyone seems to agree Rachel Dolezal was dissembling) and a specific concern that people might have to do anything to demonstrate their entitlement to the programs.

I will say the Emotional Support Animal rules, supported by both the Trump and Biden White Houses, went down with less of a fight than I thought they would, so maybe there's some hope here. But the more pessimistic side of me would note that not only are we not doing anything to stop the fake disability claims on standardized tests (indeed, we are moving towards removing standardized tests from college admissions), but we also seem to be doing very little to stop male sex offenders from faking transitions to get into women's prisons. Plus there's the stuff Rev. Kirkland notes on the Right with religious freedom claims. So the reticence to take on cheaters continues.

[loki13]

I think that you're conflating different issues. Which is why, even in the ones you identify, there isn't a unified right/left on it.

For example, so-called "cheating" using religious exemptions is largely something occurring on the right.
Cheating with service animals (and emotional support or whatever) ... from my experience ... was non-partisan.
Cheating to get extra time? That's definitely something I've seen that highly correlates with wealth ... less so with partisanship.

ADA "cheating" in general? I'd blame the plaintiff's bar (trial attorneys). Ahem. But sure, give that one to the left in terms of overhyped and incorrect articles that were hyperventilating about the tester case before SCOTUS.

When it comes to other programs, it really depends. For example, I think that most people who are generally in favor of benefit programs want it to go to people that deserve it (are qualified). But the devil is in the details; for example, if you look to the way that certain (usually red) states administer those programs, they will make it insanely hard for people in need to qualify (thus excluding cheaters ... as well as a lot of eligible people) while being perfectly happy to give that money out to corporate interests. Or Brett Favre's pet volleyball projects.

OTOH, people on the left are too willing to overlook abuses in the system so long as some meaningful portion is going to people in need. Which also lowers confidence in the system.

Competence shouldn't be a partisan issue. And yet ... it seems like everything is.

[Magister]

"The Left has a big problem" is a big overreach, even beyond dismissing the kinds of cheating that the Right prefers. The side that favors big government would generally solve the cheating problem with more government. The smaller problems for the Left are avoiding excessive regulation to get rid of a small amount of cheating and processes that effectively shame disadvantaged people if they want to qualify. The "more government" solutions include things like free school lunches for all kids, regardless of income, or like enforcing service animal licensing without making it an onerous process for the sort of people who need emotional support animals.

[Gasman]

Too bad it's not a criminal proceeding. The judge could imply the time-and-a-half option would be fine, so long as the defendant wants to gamble on his sentence.

[Dr. Ed 2]

"the federal judiciary is not a "public entity" within the meaning of the ADA"

How is it not a public entity? Is it permitted to build *new* courthouses without elevators?

I don't think this is a "reasonable" accommodation, but I don't understand the exemption.

[Ridgeway]

Ed -- when do you start drinking in the morning? That is the only explanation I can come up with for the bewildering combination of indignance, ignorance and idiocy you demonstrate on a regular basis.

For non-lawyers under the age of 12 who may be interested, we have written "laws" and those laws often use "definitions" of "terms" that differ from the colloquial definitions of those terms. "Public entity" is one such term in this context. I was able to deduce that it was defined in the statute, because the judge kindly provided an exact citation to where I could find that definition. Here it is:

As used in this subchapter:
(1)Public entity
The term “public entity” means—
(A)any State or local government;
(B)any department, agency, special purpose district, or other instrumentality of a State or States or local government; and
(C)the National Railroad Passenger Corporation, and any commuter authority (as defined in section 24102(4) [1] of title 49).

[Dr. Ed 2]

And Section 501 only applies to the executive branch. My bad.

[Idihax]

Because the federal government exempts itself from the rules it makes everyone else follow.

[Idihax]

Society has to stop catering to the lowest common denominator. The mentally ill, homosexuals, retarded, ADD, blacks, and whomever else should have to compete with their betters and let the chips fall as they will.

[AtR]

The 50% extra time accommodation is completely made up with no scientific foundation. It is merely cited as an "industry best practice" and thus used to protect institutions from lawsuits.