January 25, 2021

'The Hill We Climb' to overcome stereotypes about disabilities

[Cross-posted from the San Francisco Chronicle

By Jasmine E. Harris

Amanda Gorman had hardly uttered her final poetic note at Wednesday’s inauguration ceremony before people took to social media to celebrate the 22-year-old Harvard graduate’s strength, poise, and seemingly endless talent.

But then came the onset of “disability inspiration porn” — as many celebrated how the youngest inaugural poet “overcame” her speech disability, came out the other side, and now gets to bask in the sunlight of success.

Gorman, a Black woman raised by a single mother, became the Youth Poet Laureate of Los Angeles when she was only 16 years old, an honor rivaled only by her award of National Youth Poet Laureate just a few years later. She has openly discussed her speech disability, quick to frame it as a strength that has made her the performer she is and endeavors to be.

President Biden, during his campaign and throughout his political career, has openly discussed his speech disability, particularly its impact on his early years. The “exceptionality” narrative is so pervasive that many cannot even recognize it; it is the norm, and that is the problem.

The celebration of disability is certainly welcome, but not for the reasons proffered on Wednesday. Effusive praise for Gorman included her “learning to overcome her challenges” with her speech disability. Many sought to highlight her success as an example of how and why “having a disability or challenge never has to define you.” Yet disability is a sociopolitical identity that many openly and proudly claim.

All too often people with disabilities receive praise for engaging in everyday activities, such as traveling independently on public transportation, holding a full-time job, getting married and having children. It is no wonder that when disabled people achieve what nondisabled people do, or exceed the nondisabled norm, that they are seen as exceptional. Expectations are low and perceptions about the value of a disabled life misconceived. Legal scholars have described this as the “disability paradox,” that is, the difference in perceptions about the quality of disabled lives between those with and without disabilities.

However, in the wake of the 30th anniversary of the Americans with Disabilities Act, the way we frame disability, and our collective public understanding, remains problematic. It will continue to undermine broader antidiscrimination efforts — who gets access to employment, promotions, public services and programs, as well as how courts and juries determine legal rights.

Changing attitudes about disability is no small task, but it is possible. And, yes, public engagement and representation of different experiences with disability are central to this project. I have written extensively about the need to bridge antidiscrimination laws and public perceptions and the dangers of failing to attend to aesthetics and emotions associated with disability discrimination. In a forthcoming paper, for example, I argue that the historical association of disability with private, stigmatizing information perpetuates views that disability is embarrassing and more associated with medical data than sociopolitical identity. As a result, we only see disability as synonymous with more visible (and recognizable) markers such as the white cane or quintessential wheelchair.

The call is to “take disability public” and value publicity as a way to change these misperceptions by giving people a more realistic sense of the continuum of disability in society. Such disclosure is not without risk, with greater risks for people with intersectional identities (e.g., a disabled person of color).

Yet other social justice movements have successfully embraced publicity as a form of resistance and path to inclusion. The LGBTQ movement, #MeToo and Dreamers have all used public disclosure and publicity to add complexity and nuance to the one-dimensional popular conceptions of what it means to have one of these identities.

The degree of disability representation at Wednesday’s inauguration deserves praise, given the sheer number of people with disclosed disabilities. For instance, Jennifer Lopez identifies as a person with anxiety and has openly discussed her experiences in her book, “True Love.” Similarly, Lady Gaga publicly claims fibromyalgia, a chronic illness, as part of her lived experience.

President Biden, Gorman, Lady Gaga, Lopez, fire Capt. Andrea Hall and Justice Sonia Sotomayor are some of the people with disabilities trending. What is most notable about this group is not their collective success, but their decisions to publicly claim disability despite having less apparent ones that, in theory, can be concealed. The decision they faced, to disclose a less-visible disability, or pass as nondisabled, is one experienced by millions of people with disabilities each day. In fact, of the estimated 56 million people with disabilities in the United States, the majority have less-apparent disabilities, leaving them with the difficult decision of whether to disclose, when and to whom.

Should we celebrate the quality of disability representation on Wednesday? Yes. Should we celebrate President Biden, Gorman, Lady Gaga, Lopez, Hall and Justice Sotomayor for their tremendous success and service? Yes. But the true celebration has to be for visible representations of the strength and beauty of disability, its nuance and complexity. Disability should not be reduced to a weakness or a diagnosis. And, while the achievements of people with disabilities are celebration-worthy, they are not cause for celebration because of the identity of the achiever. Until society grapples with deeply rooted stereotypes about disability, we will continue to climb that steep hill, as Gorman so eloquently said during the inauguration.

President Biden will undoubtedly usher in a new era for civil rights enforcement in our country. However, without attention to pervasive misconceptions of disability, meaningful inclusion will remain out of reach.

December 11, 2020

The next wave of disability law

[Cross-posted from The Regulatory Review]

By Jasmine Harris

The 30th anniversary of the Americans with Disabilities Act (ADA)—called the “emancipation proclamation” for people with disabilities—could not come at a more critical and opportune time in American history.

Disability rights issues have assumed a dominant position in the 24-hour news cycle, even if not specifically labeled as such. Headline after headline implicates disability rights: COVID-19 health care rationing, curbside voting, natural disasters such as the California wildfires, ongoing legal challenges to the Affordable Care Act, the deaths of people of color with disabilities from police violence, and Harvey Weinstein’s walker.

Notably, this election cycle saw Democratic contenders for the White House advancing specific disability policy agendas in hopes of capturing the votes of millions of people with disabilities across the country. President-Elect Joseph R. Biden, in fact, delivered a victory speech that explicitly included a reference to people with disabilities.

As the Biden-Harris transition moves full speed ahead, and as lawmakers across the country establish legislative agendas for 2021, three key priorities may help advance disability rights.

First, the federal government must ensure robust agency enforcement of existing disability laws and offer clear regulatory guidance to covered entities.

The ADA has shifted our expectations for the built world, making ramps, curb cuts, and elevators the norm rather than a benevolent gesture. Disability laws, however, have enjoyed less success in expanding access to non-physical spaces. Program designs, public services, and non-physical places of public accommodation are still heavily contested areas. Consider, for example, how the current pandemic has underscored why inequitable access to technology is a critical civil rights issue. Yet questions of web accessibility predate the pandemic for many people with disabilities, especially those who are blind, low vision, or deaf or hard of hearing.

Rather than ask the U.S. Congress to introduce new legislation to create a right to accessible technology—a right that already exists within the ADA—the U.S. Department of Justice should return to the process of issuing qualitative regulations and guidance on how to apply the ADA to technology. This is a task the Justice Department nearly completed during the Obama Administration, but these efforts stalled in 2017 when President Donald J. Trump issued an executive order “reducing regulation and controlling regulatory costs.” Guidance in this area is long overdue and will avoid unnecessary uncertainty and litigation, which, at best, can only produce settlement agreements applicable to individuals rather than necessary structural reforms.

Secondgovernment and regulatory officials must consider the importance of disability outside of traditional disability antidiscrimination laws.

Disability legal scholar Sam Bagenstos persuasively argued in 2004 that the future of disability law required attention to public benefits laws, without which people with disabilities would be unable to exercise their civil rights meaningfully. This remains true 30 years after the ADA and almost two decades after Professor Bagenstos’s intervention.

Threats to the Affordable Care Act and the Social Security Act leave people with disabilities in medically and economically vulnerable positions with potential trickle-down effects such as getting evictedlosing custody of their children, or, in some cases, dying. Highlighting the importance of these laws, however, is not to suggest that these laws do not require reform. Means-tested Social Security rules such as the “marriage penalty” create a disincentive for people receiving social security benefits to marry and increase their household income. This penalty, in turn, creates a false choice between marriage and continued receipt of necessary financial and medical support.

The next wave of disability rights should expand the scope of what we think of as “civil rights laws” and consider areas such as environmental justice and emergency preparedness as target areas of disability antidiscrimination efforts.

Consider the disparate impact of the California wildfires on people with disabilities. As the state of California reported, people with certain mobility, communication, and sensory disabilities are two to four times more likely to die as a result of a natural disaster.

Failure to account for the energy needs of people with motorized assistive devices led Pacific Gas & Electric to shut off electrical power in anticipation of local weather conditions that could trigger fires. Although this might have seemed like a praiseworthy public safety initiative, Pacific Gas & Electric did not sufficiently account for the needs of people with disabilities who are consumers of their services. Electricity could mean the difference between inclusion and segregation for consumers with mobility impairments, or even life and death for those relying on breathing machines or refrigerators to house insulin and other medication.

Even progressive efforts in the environmental justice space can have unintended consequences for people with disabilities and those at the intersections of other marginalized identities such as race, class, gender, or sexuality. For example, Seattle’s recent “straw ban” has advanced environmental justice by mitigating the accumulation of plastic waste—but this initiative fails to consider how banning plastic straws will affect individuals who rely on them. Most directly, these bans prevent people with some disabilities from being consumers of beverages in public spaces.

Although this may seem to be an individual inconvenience or necessary tradeoff for promoting environmental welfare, consider the straw ban’s broader normative effects. Those who cannot access drinks independently may have to rely on friends, co-workers, supervisors, and romantic partners to assist them with beverages. Given the information deficits about disability in society, non-disabled people may now perceive “assistance” or non-normative drinking as a sign of less competence, ability, or desirability—leading some disabled people to avoid common practices such as engaging in business transactions and socializing in public spaces. These normative effects, in turn, further restrict freedom of movement and create a less inclusive society.

Finally, policymakers must consider the importance of mandatory data collection and transparency in carrying out Congress’s explicit intent to change antiquated attitudes about disability in society.

As I have argued elsewhere, disability has a particularly complicated relationship with privacy. In a forthcoming paper, I argue that a strong normative preference for protecting disability identity and related information underwrites disability law, and that this core assumption has blocked the information flow needed to challenge existing stereotypes about disability—in particular, the notion of disability as synonymous with incapacity. That is, we are suppressing the very information that could help address the deeply rooted aesthetic and affective biases that undermine formal equality.

Section 503 of the Rehabilitation Act of 1973, for example, requires federal contractors to take affirmative action with respect to hiring employees with disabilities. The U.S. Department of Labor, the agency responsible for Section 503’s implementation and enforcement, has taken the position in response to Freedom of Information Act requests that the number of people with disabilities hired and retained by contractors constitutes both “proprietary information” of the contractors as well as private medical data of the individual employee with a disability.

Yet this is precisely the type of information needed to determine compliance with Section 503. Access to data in education, transportation, housing, health care, and employment can provide a better understanding of disability discrimination, reveal possibilities for structural reform rather than individual accommodations, and highlight intersectional discrimination that may not be captured by the current antidiscrimination framework.

The current moment offers significant opportunities to take stock of federal and state disability laws and consider what the next wave of antidiscrimination efforts should look like. Among the most valuable insights from the past 30 years is an understanding that disability issues are everywhere.

Rather than silo disability or limit conversations about disability to the antidiscrimination realm, we ought to deploy disability as a critical lens across various areas of law. In this sense, disability should be a diagnostic lens, as race and gender are, to better understand discrimination and construct ex ante, as well as ex post, legal interventions.

July 27, 2020

Beyond the right to live in the world: A reflection on the ADA and disability law

[Cross-posted from the American Constitution Society Expert Forum]

By Jasmine E. Harris

Jacobus tenBroek penned one of the most formative law review articles in disability rights history, “The Right To Live In The World, in 1966, in which he argued, among other things, that law and society should move from a custodial approach to disability regulation that prioritized segregated residences to an integrationist approach that prioritized mainstream community living. The thirtieth anniversary of the Americans with Disabilities Act (ADA), the civil rights legislation for people with disabilities, underscores the importance of Dr. tenBroek’s legacy as well. His emphasis on integration as the theoretical underpinning of law reform directly influenced key disability rights including Sections 501, 503, and 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act. The idea that people with disabilities were entitled to equal opportunity in the same ways as other marginalized groups—such as people of color or women—was nothing short of radical at the time of his article. Dr. tenBroek framed equality for people with disabilities as “the right to live in the world” which, by extension, required physical access to make the right meaningful. While the ADA has undoubtedly transformed the built world by removing architectural barriers, legal scholars and advocates agree that the ADA has been less successful in combatting disability discrimination in other priority areas such as employment.

Three decades after President George H.W. Bush signed the ADA, a bi-partisan achievement, the existence of a “right” to live in the world has proven insufficient on its own to guarantee equal opportunities for people with disabilities. Case in point, Covid-19. The current pandemic has underscored what I call the “frailty of disability rights,” the instability of the rights of people with disabilities when they compete with those of other public interests. Two recent examples illustrate how antiquated social norms and attitudes about disability undermine how disability rights are exercised, interpreted, and enforced. First, consider the ease with which states and private actors dusted off healthcare rationing policies that blatantly discriminated on the basis of disability and age, and how easily such policies passed public muster. Alabama’s standards of care, for instance, classified people with intellectual and developmental disabilities as “poor candidates” for ventilators. If not for the swift legal response from disability advocates and a subsequent settlement, these standards of care would continue to inform medical treatment and rationing in Alabama and in other states. Second, consider how owners and operators of places of public accommodations wrestle with a growing anti-mask movement. Some anti-mask activists erroneously have claimed that the Americans with Disabilities Act exempts them from state and local mask requirements because of underlying health conditions. They have also argued that the ADA and privacy laws such as Health Insurance Portability and Accountability Act prevent business owners or service providers from asking any follow-up questions about disability. To be clear, there are certainly medical conditions that require business owners to provide reasonable modifications to allow individuals with disabilities to access their services; however, the analysis is not categorical. Such assessment would require an individualized examination of whether the person meets a threshold legal definition of disability, and follow explicit procedures enumerated in the ADA and corresponding regulations.

At least three factors continue to limit the remedial reach of disability laws. First, what I have called “the aesthetics of disability”—socially determined physical, sensory, and behavioral markers of disability—trigger affective processes that mitigate interactions with people with disabilities. The degree to which a person claiming disability manifests these limited aesthetic markers—usually assistive devices such as wheelchairs, white canes, prosthetics, or visible affliction and pain taken as proxies for incapacity—determines the legitimacy of their claim to disability identity and the perceived benefits that accompany such status. From parking lots and amusement parks to the courtroom, the aesthetics of disability have become evidentiary cornerstones of legitimate claims to disability. Consider the evidentiary role of Harvey Weinstein’s walker in his sexual assault trial in New York. Also, while upwards of 61 million people in the United States have one or more disabilities, only a small percentage of this number visibly manifest the aesthetics of disability. This can affect whether a person without them wishes to exercise legal rights and entitlements, in part, because these markers influence how factfinders will judge the persuasiveness of their claim to disability.

Second, and relatedly, disability laws have a complicated relationship with privacy. Congress intended the ADA to help address attitudinal barriers that limit access for people with disabilities which requires wrestling with deeply rooted biases against people with disabilities. The actual design of the ADA protects the employee from involuntary disclosures of disability information, including their identity as a person with a disability, in the employment context; however, if the employee voluntarily discloses to others in the workplace, they may lose the broader privacy protections. This means that an employee with a less visible disability, to protect their privacy rights overall, may choose not to disclose disability even when disclosure could benefit both the individual through the accommodations process and the broader normative mission of the ADA. This is part of the reason some anti-mask activists claiming disability exemptions have been so successful. Because people do not understand the nuances and realities of disability, they may be more inclined to be risk-averse without further inquiry when someone presents the possibility of ADA liability. This, in turn, breeds public mistrust about fraud and gaming that leads to public policing of disability rights. I argue in a forthcoming paper that the assumption that disability laws ought to value privacy as a default antidiscrimination tool requires interrogation, in part, because of the negative externalities it has produced—e.g., information deficits about disability, stigma, and the perpetuation of the aesthetics of disability in law. This is not to say that we should deregulate the disclosure of medical information or force people with less visible disabilities to disclose disability identity in service of meta-antidiscrimination goals; rather, in the design of legislation and regulation of disability, we must actively debate the stakes of nudging privacy over publicity.

Third, the ADA’s statutory focus on individual remedies over structural reforms has constrained its impact. The precarious balance between individual rights and systemic change is not unique to disability law. Perhaps, as Professor Jamal Greene argues in his forthcoming book, How Rights Went Wrong, the problem is the rights framework itself that sets up a zero-sum game (perceived or real) and breeds social discontent. This global explanation is certainly plausible and applicable to disability, but I would argue that disability law takes individualization a step further. The ADA emphasizes individual assessment to avoid categorical generalizations that treat all people with disabilities as incapable, frail, and pitiable. Key ADA legal tools such as reasonable accommodations and even the “direct threat” defense demand an individualized analysis to ensure that people with disabilities have access to work, places of public accommodations, and public programs and services. Congress focused on individualization because of the pervasiveness of stereotypes about particular disabilities, some that may be highly stigmatized such as HIV/AIDS or, perhaps, Covid-19.

How do we address the deficiencies of the ADA in creating a right to live in the world? To begin to answer this question, I return to Dr. Jacobus tenBroek. Dr. tenBroek was intimately tied to the civil rights movement for racial justice. Thurgood Marshall, at the time special counsel for the NAACP rearguing Brown v. Board of Educationwrote to Dr. tenBroek to discuss tenBroek’s abolitionist theories of constitutional interpretation of Section One of the Fourteenth Amendment. Dr. tenBroek’s work viewed segregation as antithetical to the constitutional guarantees of equal protection. This is the connection between his disability related work and his constitutional abolitionist work. Justice Thurgood Marshall would later go on to dissent in City of Cleburne v. Cleburne Living Center, Inc., reasoning, in part, that people with intellectual and developmental disabilities are a discrete, insular class of people who have been subjected to extraordinary discrimination, segregation, and neglect like other marginalized groups. This recognition of interdependence, historic subordination, and shared vulnerability is the future of disability justice in the United States. The coexistence of Covid-19 and Black Lives Matter in the public mind has created space to connect the dots.  From policing to Covid-19’s effect on prisons and nursing homes, people of color, are disproportionately affected. Yet modern disability rights movements have not yet fully grappled with internal racism and the potential for an antiracist and anti-ableist approach to social justice.

But what is the proper role of law in this? It is complicated and not my intent to resolve these issues here. However, public discourse around abolition versus reform offers an interesting entry point that resonates with disability advocates. Take prison abolition. The demise of large-scale, congregate residential institutions that served people with intellectual and developmental disabilities in the 1970s, for example, may offer insights into the broader decarceration movement. In many ways, modern abolitionists advance universal design thinking, that is, rather than retain a deeply flawed institution and make tweaks to accommodate individuals in this system, we ought to rethink the entire system, critique its goals, and address the socio-political and economic inequities that lead to incarceration in the first place. This could include revisiting the importance of constitutional law (both state and federal) to the advancement of disability equality. This moment feels different. Everyone is reimagining how and why institutions exist and operate as they do. Integration remains a critical governing principle in disability law, now more than ever. Dr. tenBroek’s legacy, however, demands that we move beyond the mere right to live in the world and ask not what we need to live in this world but what kind of world we want to live in.

June 8, 2020

America's 'disability alibi'

[Cross-posted from the San Francisco Chronicle]

By Jasmine E. Harris

One thing should now be clear: In America, disability can be a license to kill, to surveil, to disregard human beings. George Floyd is just the latest example.

On June 1,  autopsy reports from the Hennepin County (Minn.) Medical Examiner and the Floyd family revealed that Mr. Floyd’s death was indeed a homicide, but diverged with respect to causation. The independent report — consistent with the viral videos capturing the encounter — found that Mr. Floyd died of “asphyxiation from sustained pressure,” or suffocation, after 8 minutes and 46 seconds of oxygen deprivation. By contrast, the county report concluded that Mr. Floyd’s cause of death was “cardiopulmonary arrest complicating law enforcement subdual, restrain, and neck compression.”

Mr. Floyd, in other words, had a heart attack while Minneapolis police officers restrained him, echoing Friday’s preliminary finding Mr. Floyd’s heart conditions (derivative of high blood pressure and cholesterol) played a central role in his death. This causal divergence is (and will be) significant in how the public and the criminal justice system assign liability and mete out punishment. Whether these underlying health conditions played a role in Mr. Floyd’s death, however, is not the key question. Should the presence or absence of disability make his death any less meaningful or problematic?

Disability offers a convenient, publicly acceptable alibi for bad actors in our country. It is a way of excusing heinous crimes and acts against our fellow human beings and, in the process, earning public sympathy or support. It is a visible reminder of what little value society places on the lives of people with disabilities. The recent news cycle demonstrates other examples of the disability alibi at work.

First, Miami-Dade police arrested and booked Patricia Ripley on a charge of first-degree murder for taking her 9-year-old autistic son, Alejandro, to a nearby canal and drowning him. In her defense, she reportedly told police officers, “he’s going to be in a better place.” Researchers estimate that every week, one person with a disability is murdered by a family member or caregiver who then receives greater leniency for “mercy killings.” Reports of family members assaulting or killing their disabled kin often fly under the radar, or worse, engender public support for the killer. A New York Times Magazine cover story from December, for example, framed the killing of an older woman with dementia by her husband as an act of “love.”

Second, YouTube personalities Myka and James Stauffer ignited a social media firestorm when they announced their decision to “rehome” Huxley, their 4-year-old autistic son adopted from China. The Stauffers explained to their YouTube followers that the international adoption service did not tell them that Huxley had “special needs” when they adopted him and, they said that though they provided therapies for him, Huxley’s needs were more than they could deal with.

Some followers criticized the family for using Huxley as a social media prop and then discarding him when he manifested typical behaviors associated with his disability. Others defended and praised the Stauffers for “having the courage to make such a heartbreaking and hard decision.” While adoptive families should be afforded some latitude to define and determine what a “fit” might look like to maximize the potential for success, these discussions should focus on balanced, evidence-based information and not on misperceptions about the quality of life a child with a disability (and the child’s family) will have in the future. For example, although people without disabilities would predict that the lives of those with disabilities are unhappy, research shows that people with disabilities report levels of happiness similar to those of nondisabled people.

Third, and perhaps the most literal deployment of the disability alibi, are the well-funded nursing facility lobbyists who have convinced 20 states to limit the legal liability of long-term care facilities for COVID-related harm. This request for safe harbor comes at a time when more than 28,000 people — a majority older adults and people with disabilities — have died of COVID-19 in these care facilities. To put this in perspective, this number represents almost a third of the country’s overall pandemic losses. The prospect of granting immunity to these facilities without legal process for those who bear the disproportionate costs of the pandemic shines an industrial-sized spotlight on the devaluation of disabled lives.

This is not the first time America has reached for the disability alibi in this pandemic. Consider, for example, health care rationing policies that explicitly excluded some people with cognitive disabilities from receiving life-saving treatment based on stereotypes about their quality of life relative to nondisabled people.

Disability advocates responded to national reports of shortages of ventilators and hospital beds by swiftly filing legal complaints with the U.S. Department of Health and Human Services to challenge rarely questioned (and well-defended) bioethics principles underwriting the rationing policies. Close examination of these arguments reveals an eerie similarity to the reasoning proffered by Supreme Court Justice Oliver Wendell Holmes in his infamous 1927 majority opinion upholding the constitutionality of Virginia’s compulsory sterilization law. Justice Holmes in Buck v. Bell reasoned that “the public welfare may call upon the best citizens for their lives” — a reference to soldiers — and, therefore, “it would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned” — a reference to people with disabilities.

While state rationing policies do not reflect the same vitriolic language on their face, the notion that disabled lives can and should be sacrificed for a greater public good remains true.

The presence of disability should never be a legal or moral alibi, an excuse for unethical or illegal actions. George Floyd and the countless others who have died at the hands of those charged with protecting them deserve better, they deserve justice. The differential treatment of people with disabilities on the basis of disability — in adoption, rehoming, rationing medical care, or “mercy killing” — is immoral and, in many cases, illegal. The Americans with Disabilities Actthe civil rights act for people with disabilities, turns 30 years old in less than two months. The ADA offers legal remedies for discrimination in employment, public services, and places of public accommodations. Yet the ADA’s promise of meaningful equality remains unfulfilled in large part because of widespread misconceptions about disability.

The death of George Floyd, too, despite what you will hear from reports and medical experts during Officer Derek Chauvin’s trial, should not be excused because America, once again, accepts the disability alibi.

August 20, 2019

Disability Rights in Contemporary Immigration Debates

[Cross-posted from ImmigrationProf Blog]

By Jasmine E. Harris

We cannot fully understand the treatment of immigrant detainees and the numerous lawsuits filed against ICE and the Trump Administration without attention to disability rights. Not only do these cases underscore the intersection of immigration and disability rights broadly, but, more concretely, they offer novel and underdeveloped remedial avenues rooted in disability law. Disability statutes, like the U.S. Constitution, apply to individuals in the United States irrespective of citizenship and immigration status.

Yesterday, a coalition of leading civil rights groups filed a nationwide class action in the Central District of California to challenge the systematic denial of constitutional and statutory rights of people with disabilities in immigrant detention centers. Abdallah Fraihat et al. v. U.S. Immigration and Customs Enforcement et al., No. 5:19-cv-01546 (C.D. Cal. Aug 19, 2019) (hereinafter, Fraihat Complaint). The putative plaintiffs are fifteen individuals detained at eight different facilities in six states, representing a putative class of approximately fifty-five thousand immigrants imprisoned by ICE daily, and two nonprofit organizations, Al Otro Lado and the Inland Coalition for Immigrant Justice (ICIJ). The Fraihat Complaint challenges the federal government’s failure to ensure detained immigrants at one-hundred fifty-eight detention facilities receive appropriate medical and mental health care, its alleged use of segregation in violation of the Fifth Amendment of the U.S. Constitution, and its failure to ensure that detained immigrants with disabilities are provided legally-mandated accommodations and are not discriminated against as required by Section 504 of the Rehabilitation Act of 1973.  The Fraihat Complaint details dangerous conditions present in detention facilities that place detainees with medical and mental health disabilities in precarious situations. Examples include self-accommodating wheelchair users without assistive mobility devices being forced to rely on fellow detainees to carry them; and people denied access to medications to manage chronic illness, exacerbating current disabilities and generating new ones.

Fraihat builds on well-established substantive and procedural precedents in the prisoners’ rights context. First, the key theory of liability is that Immigration and Customs Enforcement (ICE) cannot avoid statutory and constitutional duties by contracting with third parties to manage and operate detention facilities. Although ICE directly operates only a handful of detention facilities, plaintiffs rely on familiar agency principles to hold ICE, the Department of Homeland Security, and institutional actors liable for their failure to monitor, investigate, and remedy alleged systematic violations at approximately one-hundred fifty-three facilities run by local sheriffs’ offices and private contractors.  Among those implicated, the GEO Group and CoreCivic (formerly “Corrections Corporation of America”) are two repeat defendants in prison condition cases. The fact that ICE has failed to effectively monitor and oversee the daily management of these private contractors, and to take effective measures when it learns of problems in those centers under their care and control, is not news. Consider this recent report from California Department of Justice detailing the findings from an investigation of all ten detention facilities in the state. Xavier Becerra, Cal. Att’y Gen., Immigration Detention in California, Cal. Dep’t of Justice, at 61, 82, 123 (Feb. 2019) (finding highly-restrictive prison-like conditions including required uniforms, compulsory prison-wage labor, restrictions on access to counsel and receipt of medical and mental health care).  Nor is use of class remediation novel. Fraihat relies on Ninth Circuit precedent in an analogous prisoners’ rights case for the proposition that class certification is appropriate. The Ninth Circuit in Parsons v. Ryan , 754 F.3d 657 (9th Cir. 2014)., held that prisoners could proceed as a class to challenge Arizona’s policies and practices denying access to medical care, dental care, mental health care, and punitively employing isolation.

With respect to remedies, Plaintiffs seek injunctive and declaratory relief. They want Defendants to stop using segregation as a punitive weapon, to effectively monitor federal contractors acting as their agents, and to build institutional capacity to attend to the needs of those detained.  For example, the Fraihat Complaint alleges that ICE and DHS have no system of tracking detainees’ medical and mental health needs or requests for care and accommodations.  As a result, when detainees are transferred from one facility to another, they are forced to restart the process of requesting medical care or reasonable accommodations from the beginning, leading to major delays in receipt of urgent medical attention and disability accommodations.

Plaintiffs in Fraihat face an impossible choice: either languish in detention without medical and mental health care and risk exacerbation of disabilities (including death) or abandon their immigration cases. The Trump Administration’s aggressive enforcement and use of detention has flooded an already broken system that, unfortunately (and perhaps inconceivably), continues to be years behind failing prisons in terms of compliance with disability rights laws. 

The lawsuit was filed by Civil Rights Education and Enforcement Center (CREEC), Disability Rights Advocates (DRA), the Southern Poverty Law Center (SPLC), and Orrick, Herrington & Sutcliffe LLP in the U.S District Court for the Central District of California. You can read the full Fraihat Complaint here.

Another recent example of disability rights at work in immigration debates is the Trump Administration’s amended “public charge” regulation, also the subject of California’s most recent lawsuit filed in federal court on August 16, 2019.  The new DHS regulation denies green cards to immigrants who use Medicaid, food stamps, housing vouchers or other forms of public assistance. While the rule may be problematic on its face, even if considered facially neutral, en arguendo, it will almost certainly have a disproportionate impact on immigrants with disabilities and their family members who are more likely to rely on Medicaid for health insurance. Before the DHS amendment, people with disabilities were considered “public charges” if they were likely to require institutional services such as long-term care. The expanded language in the rule may result in greater exclusion of people with disabilities and their families who rely on public insurance for the very supports necessary for them to access gainful employment and avoid economic dependency, such as personal home assistants or assistive technology.  Furthermore, other challenges to the Trump Administration’s immigration policies and practices, such as those pursuant to the settlement agreement in Flores v. Reno to challenge, among other policies, the Admiration’s separation of immigrant children at the U.S. border, while widely known, are filed within the immigration law cabinet without regard for the ways in which disability rights operate.  Flores, for example, requires that detained children be placed in “the least restrictive setting” in line with their age and other “special needs,” language that comes from the implementing regulations for Section 504 of the Rehabilitation Act of 1973 (requiring that services be provided in the “most integrated setting” appropriate). 

Perhaps most promising for this disability legal scholar is the recognition of disability rights as part of a broader civil rights agenda. My hope is that activists, practitioners, and scholars recognize the utility of these coalitions and consistently engage disability rights theoretical and legal principles to redress our most pressing social justice offenses of the day.

April 7, 2016

Diversity and Disability

Last Thursday and Friday (March 31st and April 1st), I attended the 2016 Jacobus tenBroek Disability Law Symposium in Baltimore, Maryland. 


The conference at the National Federation of the Blind


Baltimore Harbor at night

This annual symposium, named in honor of Dr. Jacobus tenBroek, brings together disability rights scholars and practitioners to discuss current disability law issues and impact litigation.  Dr. tenBroek served the public in many roles, for example, as a constitutional law scholar at UC Berkeley and a leader of the blind civil rights movement.  As a civil rights activist, Dr. tenBroek understood the importance of cross-movement coalitions to increase the political power of the disenfranchised.  He advocated for the "right to live in the world" for people with disabilities:

The right of access to public accommodations and common carriers is a civil right. It is a basic right indispensable to participation in the community, a substantive right to which all are fully and equally entitled.

Jacobus tenBroek, The Right to Live in the World: The Disabled in the Law of Torts, 54 CAL. L. REV. 841, 858 (1966).

Race is a little discussed topic in the disability rights movement despite its connection to some of the central issues of racial justice today.  For example, disability should be front and center in legal and policy discussions about prisoners' rights (approximately 24-37% of all people in prisons and jails in the U.S. self-report as people with disabilities and are disproportionately people of color).   

This year's symposium brought diversity to the forefront of the conversation.  "Diversity in the Disability Rights Movement: Working Together to Achieve the Right to Live in the World" raised difficult issues about race, gender, and sexual orientation.   I attended a breakout session on the intersection of trans rights and disability that was facilitated by Victoria M. Rodríguez-Roldán, Director, Trans and Gender Non-Conforming Justice Project, National LGBTQ Task Force.  A packed room of legal scholars and practitioners shared ideas on how the Rehabilitation Act and the Americans with Disabilities Act can be used to remedy discrimination against trans people with disabilities.  Claudia Center, Senior Staff Attorney in the Disability Rights section of the American Civil Liberties Union Foundation discussed the applicability of the ADA to police arrests following the Supreme Court decision in City and County of San Francisco v. Sheehan, 135 S.Ct. 1765 (2015).  While the Court appears to have answered the question as to whether the ADA applies to police arrests (turning on whether police arrests constitute a "program or service" under Title II of the ADA), the question of what constitutes "reasonable accommodations" in the context of arrests remains unanswered. 


Judge Thompson addressing attendees at the luncheon

The highlight of the symposium for me - other than having a chance to exchange ideas with disability practitioners and scholars - was the keynote address by the Honorable Myron H. Thompson, U.S. District Judge, United States District Court for the Middle District of Alabama.  Judge Thompson, an African American federal judge with a disability (childhood polio), shared the role of race and disability in constructing identity.  He emphasized the power of internal stigma that comes from low expectations and invisibility and the therapeutic potential of community building and cross-movement pollination.  Judge Thomson reminded the conference participants of the legacy of Dr. tenBroek and called for greater educational opportunities for law students to understand that disability rights are civil and human rights.  He encouraged law schools to build a disability rights law curriculum and law professors to build connections across subject areas so that the next generation recognizes the interconnectivity of race, ethnicity, disability, class, gender, and sexual orientation.  

Judge Thompson was energized when he learned that UC Davis is among a small group of law schools offering disability rights courses taught by full time professors, supporting a student-led Disability Law Society, and regularly inviting practitioners and scholars to discuss disability rights. 

Two King Hall alumnae practicing disability law approached me after the lunch discussion to introduce themselves and applaud King Hall's commitment to disability rights.  I look forward to bringing them back to King Hall in the future to speak with students about careers in disability rights.

March 4, 2016

"Managing the Legal Beast" with the Student Wellness Committee

On March 3rd, the Student Wellness Committee (SWC) sponsored its first public panel entitled, "Managing the Legal Beast: Panel Discussion on Navigating Law School and the Legal Profession with your Mental Health Intact."  The primary goal of the panel was to open discussion about the challenges for mental health wellness that law students and attorneys face, and discuss how the King Hall community (faculty, staff, students) can address these challenges.  A secondary but equally important goal was to normalize mental health struggles and begin to open the dialogue on how common and shared these challenges are among lawyers and law students in particular.   

I was pleased to be part of a panel that discussed questions about mental health and its challenges from three perspectives: law students, law professors, and practitioners.  Also on the panel was Professor Katie Young, currently a post-doctoral fellow at Stanford, who described her current book project on the law school experience with a realistic view of the stressors of law school and how they exacerbate existing mental health challenges and may produce anxiety and depression for students who previously did not experience these conditions.  The second panelist, Pamela Cohen, an experienced staff attorney with Disability Rights California, the Protection and Advocacy organization for the state funded to represent the interests of people with disabilities, addressed the difficult questions of disclosure of mental disabilities, more specifically, when and if to disclose and why.  She called for students, faculty, and administrators to change the culture from within.

In my segement of the presentation, I focused on the much needed culture shift around individuality and autonomy as fundamental democratic values and how they work at cross purposes to de-stigmatizing mental disability.  Shared inter-dependency and relational autonomy is more reflective of how people interact and demystifies how people actually succeed in law school and in practice.  I also discussed the prevalence of depression and anxiety among the general population --e.g., 1 in 4 people will experience depression in their lifetime--and its higher prevalence among law students--e.g., approximately 1 in 3 law students.  I attributed the disproportionate numbers among law students to at least three factors. First, the changing economic climate that results in fewer available "dream jobs" for law students and the realization that the passion which brought them to law school may not translate into a job in that area (at least at first).  Second, we celebrate imbalance--that is, people who sacrifice self-care in law school and legal practice get celebrated as "hard workers" and "devoted, tireless advocates"--rather than emulating the person who strives to balance law school or legal practice with self-care (eating well, exercise, social support networks).  Third, and relatedly, students come to law school as complex individuals with diverse interests and hobbies and after a short time this rich, deep complexity is reduced to a singular identity--law student.  These three factors take a toll on the person emotionally, physically, and psychologically.  

I also talked about how faculty can help identify law students in need of additional support and begin to shift the culture of silent suffering and stigma attached to mental disabilities.  For example, class attendance can be used as a way to check in on students' learning and also their mental health.  Students who are on call in larger classes and fail to attend class may potentially signal that they need additional support or assistance.  It's a good idea to reach out to these students personally and offer support and an open door.  Also, mental health challenges may be a sign or result of academic difficulties.  With that in mind, it can be useful to design courses to include formative assessments and periodic substantive checks to get a sense of where the class stands.  It's also important to pay attention to students' body language and facial expressions which may signal not only confusion with the materials but general lack of energy, motivation, sometimes associated with depression. Included in my presentation was a quote from Justice Louis Brandeis that I think is particularly apt for law students: "If you would only recognize that life is hard, things would be so much easier for you."

Approximately 30 law students attended the panel with strong support from the Dean's Office.  In attendance were Senior Associate Dean Madhavi Sunder and Senior Associate Dean Hollis Kulwin. I shared a note of support from Dean Kevin Johnson, who could not attend because of another commitment outside of the law school.  

 

 

October 2, 2015

LatCrit 2015 Twentieth Anniversary Conference: Critical Constitutionalism


Me with King Hall's Prof. Angela Harris and Prof. Rhonda Magee of the University of San Francisco

This year marks the twentieth anniversary of LatCrit (short for Latina and Latino Critical Legal Theory), part of the Critical Legal Studies tradition.  The theme for this year, "Critical Constitutionalism" provides an occasion for reflection and prospective planning.  I had the good fortune of moderating a powerful panel on "Mindfulness and Constitutionalism" with our very own Professor Angela Harris.  Joined by Professor Rhonda Magee of the University of San Francisco, Professors Harris and Magee opened the session with an example of mindfulness practice.  Professor Magee invited participants in the session to take a few minutes to take stock of our mental and physical states and to sit with our thoughts for a "quiet" minute.  She challenged us to consider what we teach and why to discover how mindfulness can ground us and reveal new ways of culturally evaluating constitutional democracy. The speakers urged us to incorporate mindfulness into teaching, scholarship, and the practice of law.

Professor Harris noted that mindfulness can give meaning to the Constitution, most notably, those famous three words of the preamble: "We the People."  She suggested that mindfulness unlocks possibilities for community-building and coalition formation based on recognition of our shared humanity.  She identified as problematic the "master stories" of how we become a nation, that is, those that call for "oneness" through the elimination (or masking) of differences.  Such narratives exclude those unwilling or unable to assimilate, hide, or reject those aspects of their identities that deviate from the master stories.  In turn, counter-narratives adopt "struggle" and "resistance," rather than connection, as central metaphors.  Yet understanding connection and respecting differences is possible through mindfulness.  The group then discussed the pedagogical possibilities for incorporating mindfulness into teaching.   Professors can create a shared experience of connection in the classroom where students can bring their whole selves to the analysis and application of the law.  It can be as simple as taking the first five minutes of class to sit in silence and encourage the students to identify the physical and mental state they bring to class.  Through modeling and intentional curricular design, we teach students that their diverse life experiences matter and can enhance not only their understanding of the law but expose and contest normative assumptions of "oneness" that underwrite substantive law.  

Not surprisingly, this session went over time as participants shared their reactions to the presentation as well as personal and pedagogical insights on mindfulness.  One participant noted the presence of law school courses on mindfulness signals its importance to students, the academy, and the profession.  Thanks to Professor Harris, King Hall has just such a course: "Mindfulness and Professional Identity: Becoming a Lawyer While Keeping Your Values Intact."  

I look forward to my panel tomorrow morning on "Courts and Politics" where I will discuss my current project "Sexual Citizenship, Disability, and the Dignity of Risk."