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April 30, 2017 HUMAN RIGHTS

Introduction: Disability Rights Under Siege

Shira Wakschlag

This issue of Human Rights is dedicated to exploring the landscape of disability rights law in 2017. This subject could not be more timely given the current political climate in which not only the rights but the very lives of people with disabilities are under severe and constant threat. We now have a president who has mocked people with disabilities, a secretary of education unfamiliar with the scope and protections of the Individuals with Disabilities Education Act (IDEA), a Supreme Court justice with narrow interpretations of federal disability rights laws who has consistently ruled against plaintiffs with disabilities, a White House that has removed its webpage devoted to the disability community, and a Congress seeking to scale back the protections offered by the Americans with Disabilities Act (ADA) and repeal key aspects of the Affordable Care Act involving Medicaid that are essential to the health, independence, and integration of people with disabilities in mainstream society. 

The current threat faced by the disability community is particularly disquieting given the many positive advances that have been made in recent years which, in many ways, continue to move forward despite current political circumstances. For example, the “Nothing About Us Without Us” movement has helped society to increasingly view disability as a natural part of the human experience through the lens of civil rights rather than through the lenses of pity, inspiration, or the medical model. President Obama issued an Executive Order on Increasing Federal Employment of Individuals with Disabilities and oversaw a Department of Justice that pursued robust enforcement of disability rights laws, resulting in important advances in community integration, employment, website accessibility, and criminal justice, among other things. The New York Times recently initiated a weekly essay series dedicated to exploring the lives of people living with disabilities, and the Disability Visibility Project has sprung up as an important online community dedicated to amplifying disability stories and culture. In the last decade, Congress has passed the Affordable Care Act, the Achieving a Better Life Experience (ABLE) Act, the Workforce Innovation and Opportunity Act, and the ADA Amendments Act, laws meant to enhance the lives and protect the rights of people with disabilities. The 2016 election brought disability issues to prominence on both sides of the aisle—particularly with regard to integrated employment and phasing out subminimum wage compensation—and disability rights activist Anastasia Somoza was given a prime-time speaking slot at the Democratic National Convention. 

Most recently, people with disabilities secured three major victories before the U.S. Supreme Court. This term, the Court issued two unanimous decisions that removed important barriers for students with disabilities and their families seeking redress under the ADA and Section 504 of the Rehabilitation Act and soundly rejected a “merely more than de minimis” standard for determining educational benefits under the IDEA. In addition, the Court issued a decision pertaining to the Eighth Amendment prohibition on executing capital defendants with an intellectual disability that decisively rejected the use of stereotypical and outdated factors—rather than well-established clinical standards—to determine intellectual disability in death penalty cases. 

In the face of these significant advances, we have returned to a political climate in which the basic rights of people with disabilities are more vulnerable than they have been in decades. Prior to November 2016, disability rights advocates expected to focus advocacy efforts on achieving equal pay, providing better employment opportunities, and enhancing community living. Now, advocates have had to shift their energies to preventing a return to the days of segregation, isolation, and institutionalization as Congress works to repeal the Affordable Care Act and strip $880 billion from the Medicaid program that is fundamental to the ability of people with disabilities to receive the supports they need to live in the community. 

In 1999, the U.S. Supreme Court held in Olmstead v. L.C. that unjustified segregation of individuals with disabilities constitutes discrimination in violation of Title II of the ADA. As such, public entities must provide community-based services to individuals with disabilities when (1) such services are appropriate; (2) the individuals do not oppose community-based services; and (3) community-based services can be reasonably accommodated, taking into account the resources available to the public entity and the needs of others who are receiving services. The Court grounded this “integration mandate” in the belief that institutional placement of people with disabilities who can handle and benefit from community settings “perpetuates unwarranted assumptions that persons so isolated are incapable of or unworthy of participating in community life.” The Court further found that institutionalization “severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” The struggle to achieve meaningful integration and supports has never been simple or straightforward but, absent a robust Medicaid program, Olmstead’sintegration mandate is sure to go unfulfilled. 

While so much is uncertain, one thing is crystal clear: The role of attorneys in promoting and enforcing the rights of people with disabilities and other minority groups has never been more important. It is with this in mind that the American Bar Association’s Section of Civil Rights and Social Justice presents Human Rights: Disability Rights Under Siege. In this issue: 

  •  Eve Hill discusses the future of disability rights law, providing a broad overview of how federal disability rights laws apply to health care, education, criminal justice, infrastructure, technology, and employment and noting the threats the ADA and class actions are currently facing in Congress. 
  •  Senator Robert P. Casey Jr. of Pennsylvania discusses the ABLE Act, which advances the ability of people with disabilities to realize economic self-sufficiency by creating tax-advantaged savings accounts and removing existing statutory barriers that locked many with disabilities into poverty.
  • Alison Barkoff and Emily B. Read address the challenges people with intellectual and psychiatric disabilities face in the workplace and explore the obligation of employers to provide reasonable accommodations in integrated environments in order to realize the promise of Olmstead’s “integration mandate.”
  • Sue Swenson writes about how human rights law can inform inclusive education for students with disabilities and explains the benefits of inclusive education on students with and without disabilities. 
  • Jennifer Mathis explains the importance of using a disability rights framework when approaching federal mental health policy in order to ensure advances beyond the clinical realm in autonomy, independence, and the ability to participate in everyday community life.
  • Edward Monahan and James J. Clark discuss mitigation in criminal and death penalty cases, noting the importance of cultural competency in identifying clients with intellectual disability, litigating about the defendant’s intellectual functioning and adaptive skills, and effectively explaining intellectual disability to a jury.
  • Ari Ne’eman provides an overview of the “sea change” disability policy has undergone in the last decade due to the growing political involvement from people with disabilities themselves who have promoted a more rights-based approach to disability policy and pushed the movement to new frontiers well beyond the closure of state institutions. 
  • Alexander Wohl reflects on the interplay between law and culture and discusses how the inclusion and depiction of people with disabilities in American life and culture mirrors their long history of segregation and discrimination. 
  • Aram A. Schvey profiles ABA Human Rights Hero Judy Heumann, a tireless advocate for the civil and human rights of people with disabilities domestically and internationally for more than three decades in a career that has spanned non-governmental, governmental, and international institutions. 

We hope you enjoy this issue of Human Rights, and we encourage you to make a commitment now to get involved in enforcing the rights of people with disabilities in 2017 and beyond. To learn more, visit the webpage of the Disability Rights Committee of the Section of Civil Rights and Social Justice and the webpage of the Commission on Disability Rights

Shira Wakschlag

Director, Legal Advocacy & Associate General Counsel

Shira Wakschlag is chair of the Disability Rights Committee, ABA Section of Civil Rights and Social Justice, and director of legal advocacy and associate general counsel, The Arc of the United States.