Whither the Disability Rights Movement? The Future of Disability Rights Law

Vol. 42 No. 4

By

Eve Hill served as deputy assistant attorney general for civil rights at the U.S. Department of Justice during the Obama administration, where she was a member of the Civil Rights Division’s leadership team and was responsible for oversight of the division’s disability rights enforcement, educational civil rights enforcement, Title VI interagency coordination, and the American Indian Working Group. She currently is a partner with the law firm of Brown Goldstein & Levy. 


Disability Rights March

With the change in the federal political leadership, many communities are anxious about the future of the civil rights laws that protect them. The disability community shares this anxiety. In recent years, federal agencies and courts have answered some of the pressing questions of disability rights law. In an era of rhetoric lauding states’ rights and limited federal government authority, will these answers survive? Will disability rights continue to garner the bipartisan support it has traditionally had? Will policies focused on the majority ignore their sometimes devastating effects on people with disabilities? How will pending challenges to, and opportunities for, civil rights generally play out for disability rights? There are some key areas worth watching and preparing to protect, as well as emerging opportunities that should be leveraged and expanded.

The Americans with Disabilities Act (ADA) is the key disability rights statute. It requires state and local governments and private businesses to avoid discrimination in all their activities. In general, it prohibits treating people with disabilities worse than people without disabilities. The ADA requires covered entities to engage in proactive antidiscrimination efforts, most notably, making facilities accessible, modifying their policies to accommodate disabilities, and taking steps to communicate effectively with people with communication-related disabilities.

Much of the recent legal activity in the ADA has focused on the law’s coverage: what activities are covered and who are protected and can enforce the law. 

ADA Coverage and Enforceability

The ADA, by its terms, covers all state and local government agencies and entities, all places of public accommodation (12 categories of establishments, such as hotels, restaurants, retail services, entertainment, and schools), and all employers with 15 or more employees. Neither the statute nor the regulations recognize any exceptions to coverage, and if an entity is covered, all its activities are covered and are required to comply with all the ADA’s provisions. However, what a covered entity is required to do in a particular instance (i.e., what is reasonable, achievable, effective, unduly burdensome, or accessible) may vary depending on the entity’s or activity’s context and resources.

Some entities facing ADA challenges continue to argue that some activities, such as arrests and imprisonment, online communications, state employment services, or educational activities, should be exempted from ADA requirements. They tend to make these arguments in the context of demands for reasonable modifications, effective communication, or integrated services, but their arguments are not so limited. If adopted, such an approach would mean that entities engaged in such exempted activities could discriminate blatantly. The ADA and its regulations do not provide such exceptions. And the Department of Justice (DOJ) has made clear, in briefs and guidance, that all of a covered entity’s activities are covered, including arrests and incarceration (see, e.g., www.justice.gov/sites/default/files/crt/legacy/2015/01/21/sheehansctbrief.pdf; Examples and Resources to Support Criminal Justice Entities in Compliance with Title II of the Americans with Disabilities Act, www.ada.gov/cjta.html; www.justice.gov/crt/file/883296/download; www.ada.gov/briefs/philadelphia_pd_lof.pdf; and employment and education services). See, e.g., Statement of the Department of Justice on Application of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. to State and Local Governments’ Employment Service Systems for Individuals with Disabilities, https://www.ada.gov/olmstead/olmstead_guidance_employment.htm; https://www.ada.gov/olmstead/documents/gnets_lof.pdf. The new administration’s approach to coverage remains to be seen.

Until recently, a major issue regarding coverage of the ADA has focused on who is protected by the law. The ADA covers all people with mental or physical impairments that substantially limit a major life activity. In the face of judicial misinterpretation of the scope of ADA protection, Congress passed the ADA Amendments Act in 2008 to make clear that the ADA protects a broad range of disabilities. Like the coverage issue above, what is required to accommodate a particular individual will depend on the disability and the context and resources of the entity or activity. In light of this resolved question, the focus has shifted from who is protected to who can enforce these protections. This has given rise to recent arguments that DOJ cannot enforce Title II of the ADA against public entities, and to constrictions on private individuals’ ability to pursue court enforcement.

Recently, several states have tried to argue that DOJ should have no authority to enforce Title II of the ADA. If successful, this would eliminate a major means for court enforcement that has been in place for almost three decades. It would force the federal government to rely on funding termination (ironically, a much harsher penalty than litigation), to enforce the law for those entities who receive federal funding, and would allow only private litigants to enforce the law against those that do not receive federal funding. This would turn Title II on its head, as it was intended “to ensure that the Federal Government plays a central role in enforcing the standards established in this chapter on behalf of individuals with disabilities” and to extend the prohibition on discrimination established by section 504 of the Rehabilitation Act of 1973 to all activities of state and local governments regardless of whether they receive federal financial assistance. DOJ, to date, has argued strongly against this interpretation. Will the new DOJ leadership be willing to give up its enforcement authority? Will Congress be willing to have its original intent undermined?

At the same time, legislative threats to private enforcement loom large, in the form of ADA Notification Act proposals and class action “reform.” The former (the most recent effort is H.R. 620) seek to curb “drive-by” lawsuits—where a person with disabilities sees an accessibility barrier and immediately files a lawsuit demanding payment. Notification Act proposals generally require specific notice to the business and a delay in filing suit. Prior legislative proposals would have subjected people with disabilities to criminal fines if they failed to send a sufficiently specific notice. While H.R. 620 is limited to physical access barriers, prior versions would have limited lawsuits even in instances of explicit and obvious discrimination (e.g., “we don’t allow service animals”). In addition, some rightly question why, almost 27 years after the ADA passed, businesses should be able to ignore their inaccessibility until after a person is excluded because of it. It is unclear whether Congress will seriously pursue Notification Act proposals, will focus on physical access barriers or restrict lawsuits for even blatant discrimination, or will consider criminal sanctions to be a fair response to a discrimination victim filing a civil action.

There is reason to hope that constrictions in federal law can be counteracted by states that care about disability rights. Many states have their own disability rights laws that largely match or exceed the ADA’s protections, as well as consumer protection laws and nondiscrimination requirements that attach to state contracts, procurements, licensing, or funding. States are not bound by any limitations to the coverage or enforceability of the ADA. Moreover, states can take a greater role in enforcement of their own disability rights laws by declining to incorporate federal ADA limitations enforcing antidiscrimination requirements.

Health Care and Education

Current discussions of the future of the Affordable Care Act (ACA) and Medicaid, as well as proposals about school choice, have potentially devastating consequences for people with disabilities. The ACA’s requirement that insurance providers cover pre-existing conditions has been life-saving for people with disabilities. Prior to the ACA, people with disabilities often had to pay for insurance that would not cover treatment for their disabilities. The ACA made it possible for people with disabilities to get coverage that works for them and to leave government benefits to enter the workforce and be able to survive on their employer-offered insurance. And the ACA’s Medicaid expansion allowed those with disabilities and some income to have health insurance for the first time. Eliminating the pre-existing condition coverage or the Medicaid expansion, block granting Medicaid, or imposing per capita Medicaid caps would be potentially life-threatening changes for people with disabilities. Forcing people with disabilities and their families to focus on mere survival may be the greatest threat to disability civil rights. 

Current discussions of school choice are also potentially existentially threatening to the future of disability rights. The purpose of the ADA and other disability rights laws was, as former President George H.W. Bush said, to allow people with disabilities to “move proudly into the economic mainstream of American life. . . .” (George H. W. Bush, Remarks of President George Bush at the Signing of the Americans with Disabilities Act, (July 26, 1990)). That purpose simply cannot be achieved if children with disabilities are kept separate from their non-disabled peers and, as so often happens in segregated schools, given inadequate resources and curricula. In a charter- or voucher-based school choice system, however, that is exactly what is likely to happen. 

The Individuals with Disabilities Education Act (IDEA) requires public schools to provide special education to students with disabilities and provides federal funding to do so. The ADA requires reasonable modifications and auxiliary aids, physical access, and non-discrimination. The obligations rest on the state, school district, and individual schools together. Charter-based school choice systems threaten to undermine compliance by decentralizing the responsibility and reducing the resources available for accessibility and special education. They also increase opportunities for individual schools to exclude students with disabilities rather than provide accommodations and special education services. In charter school systems, both the charter schools and the school districts and states remain subject to the IDEA and federal disability rights laws, but compliance is harder to achieve, monitor, and remedy. Most parents of students with disabilities don’t have the resources to pursue legal action to enforce their rights, and states and school districts have less visibility into, direct control over, and resources to address charter schools’ actions. Disability advocates fear that such systems will result in the few remaining traditional public schools becoming under-resourced “disability ghettos.”

Voucher-based systems raise even more red flags. Voucher systems provide a credit directly to parents who can choose to use the credit to pay for public, private, religious, or even home schooling. In this kind of system, unlike charter systems, in the absence of an agreement or licensing requirements, a private school that receives a voucher may not take on the IDEA and other federal disability rights obligations of the public school system. Nor are the vouchers generally sufficient to cover the cost of special services or accommodations. Private non-religious schools have their own ADA obligations, which differ from the public schools’ duties under the ADA. Religious private schools that receive vouchers are not covered by the ADA or IDEA. Moreover, parents of students with disabilities already face increased expenses and demands in caring for their children and are less likely to be able to afford any private school tuition or expenses beyond whatever the voucher covers. Voucher systems, therefore, clearly raise concerns that students with disabilities will be excluded from schools, will be taught inappropriately without accommodations or special education services, or will be segregated in the remaining public schools or disability-specific voucher schools, with more limited resources as vouchers drain funding from the public system.

In the area of education, in recent years, federal agencies and courts have brought more clarity to the obligations of schools to educate students with disabilities. The Ninth Circuit found that the IDEA is not the exclusive law applicable to students with disabilities, but that schools must also comply with the ADA, which may require more or different accommodations. K.M. v. Tustin Unified School District, 725 F.23d 1088 (9th Cir. 2013). The Departments of Education and Justice followed with a guidance letter. https://www2.ed.gov/about/offices/list/ocr/letters/colleague-effective-communication-201411.pdf. And recently, the Supreme Court unanimously held that ADA claims in education need only go through the IDEA administrative process if they are substantively claims for IDEA free appropriate public education services. Fry, et vir v. Napoleon Community Schools, et al., 2017 WL 685533 (Feb. 22, 2017).

Criminal Justice Reform

There seems to be widespread and bipartisan support for criminal justice reform addressing the current extraordinary incarceration rates in the United States. Criminal justice reform offers a potential opportunity for disability rights improvements. A focus on the incarceration of people with mental health disabilities would be an extremely fruitful part of any such reform. Research has shown people with mental health conditions are significantly overrepresented in jails and prisons, whether because their disabilities, particularly when in crisis, lead them to act in ways that are not accepted in general society, or because of the impact of homelessness or self-medication with drugs or alcohol. People with mental health conditions are also overrepresented in officer-involved uses of deadly force. Overrepresentation appears even higher in juvenile justice systems, which is a significant part of the school-to-prison pipeline. 

Criminal justice reform should improve identification, crisis intervention, treatment, diversion, discipline, restrictive housing, and re-entry practices for police, courts, and corrections systems. Such reforms are demanded by the ADA, fiscal concerns, and common sense. There are numerous effective tools and models available to help criminal justice reform efforts in this area. Examples and Resources to Support Criminal Justice Entities in Compliance with Title II of the Americans with Disabilities Act, https://www.ada.gov/cjta.html; Report and Recommendations Concerning the Use of Restrictive Housing, https://www.justice.gov/restrictivehousing#principles; Office of Justice Programs, https://ojp.gov; Substance Abuse & Mental Health Services Administration, https://www.samhsa.gov.

While the criminal justice system can do much to address the disproportionate and counterproductive incarceration of people with mental health conditions, true criminal justice reform will work best if it is accompanied by reform of public mental health systems. Law enforcement, courts, and corrections agencies currently face the fundamental question: “Divert to what?” 

Despite widespread support for community-based mental health services rather than psychiatric hospitals, too many public mental health systems continue to buy institutional “beds” rather than fund robust community-based services. Community-based services are less expensive, at least as effective, and more likely to be voluntarily accessed by people with mental health conditions and their families than institutions. And they better serve people with mental health conditions and criminal justice systems than arrest and incarceration. The ADA also requires states to ensure sufficient community- based mental health services are available to avoid unnecessary institutionalization. Olmstead v. L.C., 527 U.S. 581 (1999). 

Criminal and juvenile justice and education reform efforts offer the disability rights community important opportunities to work in coalition with health care providers, law enforcement agencies, education experts, racial civil rights communities, and fiscal hawks from both sides of the aisle.

Infrastructure, Technology, and Employment

Current discussions of infrastructure improvements nationwide also offer important opportunities for disability access and employment. Inaccessible infrastructure, such as sidewalks, transportation systems and vehicles, and telecommunications, is a constant barrier to people with disabilities and undermines the accessibility efforts of the ADA. A ramp at a business is less useful if there is no curb ramp to the sidewalk or no accessible transportation to get there. Accessibility upgrades are most efficiently and cost-effectively made as infrastructure is newly constructed or altered (and the ADA requires full accessibility of all new or altered facilities). As federal, local, and private funding flows to infrastructure projects, ensuring accessibility could have major benefits for people with disabilities.

Similarly, emerging technology developments offer incredible opportunities for people with disabilities. Digital technologies, such as ebooks, online services, and autonomous technologies, can open up worlds of education, experience, and employment to people whose disabilities have denied them access previously. Because digital technology is capable of more flexibility of interfaces (visual, audible, and tactile), it can, if implemented accessibly, provide independent access for people with vision, hearing, and cognitive disabilities in ways that print-only or audio-only interfaces cannot. 

People with disabilities are disproportionately unemployed and underemployed in the United States. The Obama administration laid significant groundwork to improve employment of people with disabilities. The DOJ and Equal Employment Opportunity Commission (EEOC) robustly enforced the ADA’s nondiscrimination mandates, including challenging inaccessible online employment opportunities, requiring reassignment of employees to vacant positions when their disabilities prevent them from continuing to perform their jobs, challenging pre-employment medical exams, and stopping harassment, abuse, segregation, and wage abuses of employees with disabilities. See, e.g., https://www.eeoc.gov/eeoc/litigation/selected/ada_litigation_facts.cfm; https://www.ada.gov/enforce_current.htm#TitleI.

The EEOC and Department of Labor (DOL) also made significant progress in crystalizing the disability affirmative action provisions of existing law. The DOL’s regulations under Section 503 of the Rehabilitation Act require federal contractors to establish a goal of having 7 percent of their employees be people with disabilities and implement programs to achieve that goal. The EEOC issued regulations under Section 501 of the Rehabilitation Act requiring federal agencies to establish a 12 percent employment goal, including a 2 percent goal for employees with targeted disabilities, and to adopt and implement plans to achieve those goals. If these rules are robustly implemented, they have the potential to improve the employment rates of people with disabilities.

A number of recent actions at the federal and state levels have aimed to close the loophole that has allowed many people with disabilities to be paid less than their peers. The Obama administration also issued an Executive Order setting a $10.10 minimum wage for federal services contracts and explicitly made that wage applicable to people with disabilities employed in the federal AbilityOne program. AbilityOne contractors receive federal contracting preferences if their workforces are at least 75 percent people with disabilities. They have traditionally been allowed to pay subminimum wages to their workers with disabilities. States like New Hampshire and Maryland have recently passed legislation prohibiting subminimum wages for people with disabilities. And Congress passed the Workforce Innovation and Opportunity Act to focus federally funded employment and education services for people with disabilities on securing competitive integrated employment rather than segregated subminimum wage jobs in sheltered workshops. In an era of deregulation and states’ rights, it is not clear to what extent these legal principles will continue to be federally enforced. But supporting people with disabilities to achieve and maintain integrated competitive employment, rather than public benefits, is a smart fiscal and moral policy, as evidenced by the 19 states that have adopted formal Employment First policies and the 27 more that are carrying out Employment First efforts.

The long-term future of disability rights law remains uncertain. However, the disability rights movement continues to grow, as more and more people claim their own identities as people with disabilities, as more and more people recognize and respect the disabilities of their friends and family members, and as people with disabilities are more and more able to join in all aspects of American life. While legal and policy changes may challenge these efforts, and disability rights advocates and attorneys, as well as state agencies, may have to take on additional responsibilities to maintain and continue progress, the power of the disability rights movement, on individual, community, and societal levels, will continue. 

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