Why Courts Matter for Disability Rights
This Sunday, July 26, marks the 30th anniversary of the landmark Americans with Disabilities Act (ADA). While our country has a long way to go in eradicating systemic ableism and becoming truly accessible to all, this bipartisan law opened doors to equality for millions of Americans and changed Americans’ attitudes towards people with disabilities. As former Senator Tom Harkin, author of the ADA, recently noted, “The biggest milestone has been changing Americans’ attitudes about people with disabilities, treating them with dignity as opposed to pity and condescension.”
It’s nevertheless important to take stock of how much progress still needs to be made. According to the Bureau for Labor Statistics, the labor force participation rate for people with disabilities has hovered around 20% for the last 11 years, compared to 70% for persons without disabilities. Workers with a disability earn 66 cents for every dollar than those with no disability earn. When racism and ableism intersect, the injustice is even more glaring — more than one in four people with color with disabilities has less than a high school education and students of color with disabilities are disproportionately disciplined in schools. While they typically only make up 15%of the schooling system, they account for almost 40 percent of the disciplinary action taken by school districts.
This anniversary, moreover, is a reminder of the important role of the federal judiciary in protecting the rights of persons with disabilities. Federal judges play a critical role in interpreting the ADA and other critical federal statutes, like the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act of 1990, that impact the health and well-being of millions of people across the country.
For example, the ADA was passed “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Yet, in the early 2000s, in what is referred to as the “Sutton Trilogy,” the Supreme Court narrowed the interpretation of disability and found that many people with “substantially limit[ing]” impairments were not considered people with disabilities, and therefore were not protected by the ADA. Because of these decisions, fewer people qualified as having a disability were able to file a claim of discrimination against their employer. In 2008, Congress clarified the ADA’s definition of disability, reversing these Supreme Court decisions, but “the damage [from the Court’s decisions] was already done,” Harkin said. “Rather than having 30 years to make progress in the realm of employment opportunity for people with disabilities, the country has had only 11 years.”
Likewise, the ADA requires all workplaces and public spaces, such as schools and transportation systems, to ensure reasonable accommodations for those with physical disabilities. Again, courts had to give meaning to the statute. Most notably, George Lane, a paralyzed defendant in a wrongful death case, sued when he was forced to crawl up two flights of stairs while the judge and other courthouse employees allegedly laughed at him, to attend his hearing. The case went to the Supreme Court, which held that people with disabilities have the right to seek damages for violations by state entities.
The Supreme Court also interpreted the ADA to recognize that people with disabilities have a right to freedom from segregation. In Olmstead v. L.C. (1999), the Supreme Court held that unnecessary segregation of individuals with disabilities violates the ADA. The ruling was hailed as the disability civil rights equivalent of Brown v. Board of Education. States must provide treatment to people with disabilities “in the most integrated setting appropriate for the treatment of those problems.”
“Judge Gorsuch thought that an education for my son that was even one small step above insignificant was acceptable.”
Jeffrey Perkins
The impact of the courts on the rights of individuals with disabilities goes well beyond the ADA. In a case involving the Individuals with Disabilities Education Act (IDEA), which requires that people with disabilities are provided equal access to education, an impartial hearing officer, an administrative law judge, and a federal district court judge all agreed that Luke, a young boy with autism, needed placement in a residential school program due to his lack of progress in applying skills learned at school to other environments. Yet, Neil Gorsuch, then sitting on the Tenth Circuit, wrote an opinion reversing that determination and held that only minimal progress needed to be achieved by children in educational programming for students with disabilities, an interpretation unprecedented in its narrowness. Jeffrey Perkins, Luke’s father, replied to Gorsuch’s Tenth Circuit decision, stating to the Senate, “Judge Gorsuch thought that an education for my son that was even one small step above insignificant was acceptable.” In 2017, though, in the middle of Gorsuch’s confirmation hearing to the Supreme Court, the Supreme Court unanimously rejected that interpretation. It stated students with disabilities in schools operating under Gorsuch’s standard “can hardly be said to have been offered an education at all.” Instead, the Court held that IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”
A recent case in Iowa further illustrates the difference a federal trial court judge can make. In March, Judge Stephanie Rose, issued a 116-page ruling against the state of Iowa for its despicable management of the Boys State Training School in Eldora, which houses troubled youth ordered there by the courts. She said the state-run school’s inadequate mental health care, its misuse of solitary confinement, and its use of a restraint technique to hold children immobile known as the “wrap,” which she referred to as “torture,” violated the Constitution. Disability Rights Iowa wrote, “Her order is a resounding victory for children, putting an end to unspeakable mistreatment and abuse of young boys in that facility.”
The reality, is, however, that future litigants may face much steeper hurdles in the courts; President Trump has nominated scores of individuals who have shown hostility toward laws that protect the rights of all, regardless of disability.
For example, in addition to narrowing the meaning of IDEA, as discussed above, Neil Gorsuch also ignored statutory language to rule against people with disabilities in the case of Grace Hwang, an assistant professor at Kansas State University for 15 years. After a cancer diagnosis, she requested and received a six-month leave of absence while she recovered from a bone marrow transplant. As she was preparing to return to teaching, a flu epidemic erupted on the campus. Because a flu infection would have been potentially deadly given her compromised immune system, Hwang asked for further leave, during which she could have worked from home. The university denied her request. Hwang then sued the university for violations of the Rehabilitation Act, which prohibits disability discrimination by entities that receive federal funds and requires reasonable accommodations. Judge Gorsuch ruled that Professor Hwang’s request was unreasonable. Gorsuch wrote that the leave policy was “more than sufficient” and asserted that the Rehabilitation Act should not “turn employers into safety net providers for those who cannot work.” His reasoning has been rejected by other courts. As Grace Hwang’s surviving family members wrote, “Our hearts were broken by the way our justice system failed Grace. Key to that failure was the ruling written by Gorsuch, with its callous disregard for Grace and her condition.”
Likewise, Brett Kavanaugh, while on the D.C. Circuit, dismissed the claims of individuals with intellectual disabilities who argued that their rights had been violated after they were subjected to elective surgeries without regard for their wishes or preferences. Kavanaugh’s opinion was inconsistent with the rulings of many courts, which have held that an individual’s wishes should be given some consideration, even if the individual has been deemed by a court to be unable to make their own decisions. Kavanaugh’s decision demonstrates his disregard for the rights and bodily autonomy of those with disabilities, and a lack of empathy for those who express their own desires.
Neomi Rao, a Trump appointee confirmed to the D.C. Circuit, has written numerous articles criticizing bans on “dwarf-tossing,” a degrading practice in which individuals throw little people for sport or entertainment. The practice has encouraged violence towards little people, even paralyzing one man who eventually died after he was picked up and thrown against his will. Despite the real-world consequences of the vile practice, Rao is fixated on the theory that the bans violate the “dignity” of little people who wish to participate. She argued that a French ban on dwarf-tossing demonstrates how “concepts of dignity can be used to coerce individuals by forcing upon them a particular understanding of dignity.” She wrote that the state’s restriction of such activity impinges upon the individual’s ability to make money, drawing parallels to prostitution and pornography. Rao’s unashamedly ableist writings and callous advocacy against bans on dwarf-tossing raise questions as to whether she will give proper effect to some of our nation’s most important laws ensuring equality for people with disabilities.
And, Trump’s judges have already issued rulings that demonstrate their hostility towards protecting the rights of people with disabilities.
In Merrill v. People First of Alabama, civil rights organizations brought a lawsuit under the ADA to challenge Alabama’s election rules during the pandemic. For example, according to the complaint, the requirement that a voter casting an absentee ballot must sign it before a notary or two witnesses could disenfranchise thousands of people because there are 165,582 people over the age of 18 in Alabama who have a disability and live alone. Since they are at higher risk of contracting COVID-19, it is not safe for them to seek out a notary or come into close contact with other people. U.S. District Judge Abdul Kallon had issued a preliminary injunction after finding that Alabama’s election rules would cause sick, elderly, and voters with a disability to “likely face a painful and difficult choice between exercising their fundamental right to vote and safeguarding their health, which could prevent them from casting a vote in upcoming elections.” However, Trump Supreme Court Justices Brett Kavanaugh and Neil Gorsuch subsequently joined a 5–4 order of the Court blocking a lower court ruling allowing curbside voting and waiving absentee ballot requirements during the COVID-19 pandemic in Alabama.
Trump Sixth Circuit judge John Bush, sitting by designation on the Eleventh Circuit, upheld, over a dissent, a trial judge’s decision to reverse a $775,000 jury award for a deaf supermarket employee for Costco’s failure to accommodate her disability as required under the law. Trump Eighth Circuit judge Steven Grasz would have ruled (fortunately in dissent) that, under the ADA, it was permissible for a theater to only provide captioning for deaf individuals on one Saturday matinee per show. Trump Eleventh Circuit judge Elizabeth Branch dissented in a case and argued that the Justice Department could not go to court to enforce Title II of the ADA, which prohibits discrimination in public services by cities and states. The case involved care for children with severe health conditions; a Justice Department investigation found that Florida was unnecessarily institutionalizing children with disabilities.
Trump Fifth Circuit judge James Ho dissented from a decision that ruled in favor of an individual with Parkinson’s disease who alleged that he was improperly placed on leave by his employer. If Ho’s ruling had prevailed, the individual would not have had a chance to prove that he had been unlawfully dismissed by his employer due to his diagnosis.
Trump Sixth Circuit judge Joan Larsen would have let a life insurance company deny benefits to a woman with leukemia who was unable to continue working on the grounds that she “did not meet the definition of disability.” She also ruled to allow a cable company to deny disability benefits to a sick employee even though the company unlawfully used the same doctor to evaluate — and reject — both the initial claim and the appeal.
In West Virginia Coal Workers v. Bell, Trump Fourth Circuit judge Jay Richardson denied black lung benefits to a retired coal miner who developed a permanent respiratory disability. The decision reversed the Department of Labor Benefits Review Board’s decision and reinstated the Administrative Law Judge decision that, the dissent noted, “wholly ignores” evidence of lung impairment.
These examples demonstrate why it is so critical that the next president prioritize nominating federal judges with demonstrated commitments to the proper application of critical constitutional rights and legal protections, including the ADA and other important statutes that protect the rights of and ensure equal opportunity to persons with disabilities.
And, the next president needs to ensure any pool of candidates for the federal bench includes people with disabilities and lawyers who have been in the trenches fighting to give true meaning to landmark laws like the ADA.