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National Disability Rights Groups File Amicus in Perez v. Sturgis

/in /by The Arc

This week, The Arc of the United States joined eleven national disability rights organizations in filing an amicus brief in the U.S. Supreme Court. The amici are asking the U.S. Supreme Court to protect students with disabilities and ensure that families of these students are able to pursue the full range of civil rights remedies directly in federal court. The case, Perez v. Sturgis Public Schools, is scheduled to be heard on January 18, 2023.

“Students with disabilities already face inordinate obstacles in getting the education they need to build their future,” said Shira Wakschlag, Senior Director of Legal Advocacy and General Counsel at The Arc. “From inadequate accommodations and low expectations to restraint, seclusion and poor support, parents and children are too often forced to become experts in self-advocacy and the law in order to obtain services and supports they are entitled to. If the lower court decision is allowed to stand, it will cause further harm to students with disabilities who already experience segregation and discrimination in school and will burden parents by forcing them to jump through futile and unnecessary hoops in order to pursue non-IDEA civil rights claims in federal court.”

In Perez v. Sturgis Public Schools, the plaintiff Miguel Perez, a deaf individual, was denied a sign language interpreter for 12 years while attending Sturgis Public Schools, which ultimately impacted his ability to read, write, and graduate. The Perez family filed a due process complaint alleging violations of the Individuals with Disabilities Education Act (IDEA) and the Americans with Disabilities Act (ADA) and the parties settled the IDEA claims. The ADA claims were dismissed since these claims cannot be heard in administrative proceedings, so the family brought the ADA claims in federal court and sought compensatory damages. The lower court held that Perez gave up his right to sue under the ADA in federal court when he settled the IDEA claims because settlement does not constitute exhaustion of administrative remedies. Yet both claims are vital in his fight against years of discrimination and neglect – the IDEA claim addressed the school’s failure to provide the education and services he needed to learn, and the ADA claim addresses his unequal access to education and compensatory damages for his emotional distress resulting from that discrimination. If the U.S. Supreme Court does not rule in favor of the plaintiff, students with disabilities and their families will have to turn down full IDEA settlements, forgoing their ability to immediately receive a ‘free appropriate public education,’ in order to preserve their distinct non-IDEA claims.

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About The Arc: The Arc advocates for and serves people with intellectual and developmental disabilities (IDD), including Down syndrome, autism, fetal alcohol spectrum disorders, cerebral palsy, and other diagnoses. The Arc has a network of nearly 600 chapters across the country promoting and protecting the human rights of people with IDD and actively supporting their full inclusion and participation in the community throughout their lifetimes and without regard to diagnosis.

Editor’s Note: The Arc is not an acronym. Always refer to us as The Arc, not The ARC and never ARC. The Arc should be considered as a title or a phrase.

Media Contact: Jackie Dilworth, Director of Communications, dilworth@thearc.org

Close up of the U.S. Supreme Court, focused on the pillars, and doorway.

Amicus Brief Filed in U.S. Supreme Court Case Emphasizes Harms to People With Disabilities

/in , /by The Arc

WASHINGTON, DC – Six leading disability advocacy organizations, with the support of Kellogg Hansen, have filed a “friend-of-the-court” brief in the U.S. Supreme Court in support of the estate of Gorgi Talevski, who alleges that the Health and Hospital Corporation of Marion County, Indiana (HHC) abused and neglected him while in a nursing home. The amicus brief explains why it is important that individuals, particularly those with disabilities, have the ability to sue state and local governments when their civil rights are violated under Medicaid and other public programs. The case, Health and Hospital Corporation of Marion County, Indiana v. Talevski, is scheduled to be heard on November 8, 2022.

The amicus brief focuses focuses on the harmful impact the case will have on people with disabilities, who have long faced pervasive discriminatory treatment within American society. People with disabilities and their families have relied on lawsuits to enforce Medicaid’s antidiscrimination protections, including the landmark Olmstead v. L.C. case. If providers of Medicaid services abuse or mistreat beneficiaries or take away or deny their benefits, private lawsuits – regularly brought by The Arc and its partners – are often the only way to hold government entities accountable and ensure people get the life-saving therapies and everyday living support services they need. Many of these lawsuits will no longer be possible if the Court rules in favor of HHC. Full access to Medicaid services and the right to enforce these services are crucial to achieving community integration for people with disabilities. The brief urges the Court to reaffirm the private right of action to enforce Medicaid guarantees and disability rights.

“This case is a large-scale assault on disability rights around the country,” said Peter Berns, CEO of The Arc of the United States. “Medicaid is the primary source of healthcare for people with intellectual or developmental disabilities, the vast majority of whom want to live with dignity in their homes and communities. Protecting their right to private action when such rights are violated would ensure they aren’t unnecessarily institutionalized and prevent the unraveling of antidiscrimination progress set forth by the ADA for over 30 years.”

“The Supreme Court has signaled that it may strike another blow against civil rights in this case,” said Ira Burnim, Legal Director of the Bazelon Center for Mental Health Law. “An expansive ruling could put at risk the ability of individuals to seek relief in federal court for violations of key civil rights statutes prohibiting discrimination based on sex, race, national origin, or disability.”

“Medicaid covers personal attendants and other in-home services and supports that disabled people need to live in the community and participate in society. Enforcement is a critical right,” said Claudia Center, Legal Director of Disability Rights Education and Defense Fund.

“Congress intended that people with disabilities have the right to enforce Medicaid, just as they do Section 504 of the Rehabilitation Act and the Americans with Disabilities Act. The disability community has used this private right of action to enforce vital civil rights protections repeatedly,” said Maria Town, American Association of People with Disabilities President and CEO. “Any decision from the Supreme Court that does not recognize this right would go against Congress’ wishes, decades of legal precedent, and ultimately, put at serious risk the healthcare, community integration, and civil rights that people with disabilities have long fought to secure.”

In Health and Hospital Corporation of Marion County, Indiana v. Talevski, HHC is appealing a ruling by the Seventh Circuit Court of Appeals that Mr. Talevski and his family could sue to enforce his rights under the Nursing Home Reform Act provisions of Medicaid. For 50 years, the U.S. Supreme Court has recognized that people can sue if their rights are violated under safety net programs. The inability to pursue legal recourse will affect millions of people who rely on Medicaid, the Supplemental Nutrition Assistance Program (SNAP), Women, Infants, and Children (WIC), the Children’s Health Insurance Program (CHIP), Temporary Assistance to Needy Families (TANF), and more.

The amici are also concerned that a broad ruling in favor of HHC may undercut individuals’ rights to sue to enforce Title IX of the Education Amendments of 1972 (prohibiting discrimination based on sex), Title VI of the Civil Rights Act (prohibiting discrimination based on race, color, or national origin), and Section 504 of the Rehabilitation Act (prohibiting disability discrimination).

Major health organizations, legal experts, and scholars also uphold the importance of private suits under Medicaid and other federal statutes. Over twenty other amicus briefs have been submitted in support of the defendant, Gorgi Talevski, who is being represented by Ivanka Talevski in his death.

 

 

Media Contacts: 

Jackie Dilworth, The Arc of the United States, dilworth@thearc.org

Jalyn Radziminski, The Bazelon Center, jalynr@bazelon.org

Claudia Center, The Disability Rights Education & Defense Fund, ccenter@dredf.org

Rachita Singh, The American Association of People with Disabilities, rsingh@aapd.com

Steven Schwartz, The Center for Public Representation, sschwartz@cpr-ma.org

 

About The Arc of the United States: The Arc advocates for and serves people with intellectual and developmental disabilities (IDD), including Down syndrome, autism, Fetal Alcohol Spectrum Disorders, cerebral palsy, and other diagnoses. The Arc has a network of 600+ chapters across the country promoting and protecting the human rights of people with IDD and actively supporting their full inclusion and participation in the community throughout their lifetimes and without regard to diagnosis. Editor’s Note: The Arc is not an acronym; always refer to us as The Arc, not The ARC and never ARC. The Arc should be considered as a title or a phrase.

About The Bazelon Center: Since 1972, the Judge David L. Bazelon Center for Mental Health Law has advocated for the civil rights, full inclusion and equality of adults and children with mental disabilities. We envision a society where Americans with mental illness or developmental disabilities live with autonomy, dignity, and opportunity in welcoming communities, supported by law, policy, and practices that help them reach their full potential. The Bazelon Center accomplishes its goals through a unique combination of litigation, public policy advocacy, coalition building and leadership, public education, media outreach and technical assistance.

About The Disability Rights Education & Defense Fund: The Disability Rights Education & Defense Fund (DREDF) is a national, nonprofit law and policy center led by people with disabilities and dedicated to advancing and protecting the civil and human rights of disabled people. As a Parent Training and Information Center (PTI) funded by the US Department of Education, DREDF serves families of children with disabilities and disabled young adults in 33 California counties.

About The American Association of People with Disabilities: The American Association of People with Disabilities (AAPD) is a convener, connector, and catalyst for change, increasing the political and economic power of people with disabilities. As a national cross-disability rights organization, AAPD advocates for full civil rights for the over 61 million Americans with disabilities by promoting equal opportunity, economic power, independent living, and political participation. To learn more, visit the AAPD Web site: www.aapd.com

About The Center for Public Representation: The Center for Public Representation (CPR) is a national public interest advocacy organization assists people with disabilities to control their own lives, to make their own decisions, and to fully participate in their communities. CPR has litigated numerous cases to ensure that people with disabilities can leave nursing facilities and other segregated institutions, and live productive lives in the community.

A woman in a motorized chair plays with a small dog on a grassy field in front of a community of houses

Why the ADA Matters to Me: A Conversation With Steve Ferreira

/in , , , /by Pam Katz

For the past 32 years, the Americans with Disabilities Act (ADA) has protected the civil rights of people with disabilities.

Recently, we spoke with Steve Ferreira, who shared how the ADA has impacted his life and how he hopes to ensure that the promise of the ADA is being kept in his community!A man wearing a pink button down shirt smiles and is in a motorized wheelchair.

Steve was born with cerebral palsy in Taipei, Taiwan in 1988. He graduated from Bellevue College in 2013 with an Associate Degree with a concentration in Communications. He is currently attending Central Washington University to obtain his Certificate in Accessible Studies.

In November 2011, Steve started a non-profit called Beyond Disabilities to further his goal of disability awareness. As a motivational speaker, Steve aims to raise disability awareness within every community he addresses. In addition to his motivational speaking, Steve has been involved in athletics. He has competed in international competitions both in the United States and Europe, earning the bronze medal in shot put in 2008 and the gold medal in discus in 2010.

Q: What does the ADA mean to you in your life? Why is it so important to you?

The Americans with Disabilities Act (ADA) was enacted in 1990 and is a civil rights law that prohibits discrimination against people with disabilities. This includes jobs, schools, transportation, and public and private places that can be accessed by the public. It gives protection to all people with disabilities.

It is a law that can be quoted and used when there is a situation where people with disabilities are not receiving the services they need or do not have access to facilities. It is a powerful law.

In 2016, I contacted my hometown, the City of Renton, Washington, to put in signs at a dangerous crosswalk close to my home where I had almost been hit by a car. But nothing happened at the time.

Two years later, while crossing the street in my wheelchair, I was hit by a car that made a right turn onto the road. There was a red light but no warning about watching for pedestrians. I was okay, but my legs would be gone if my wheelchair had not had a leg guard.

I contacted the city again and told them what happened. Using the ADA to back me up, I was able to get the city to install a turning light at the crosswalk. It took two more years for the city to take care of the situation, but I felt a sense of accomplishment when it did.

I drive my wheelchair all over and have over 10,000 miles on it. I drive around 18 to 25 miles a day. If not for the ADA, we would not have cutouts in the crosswalks and lifts on the buses. All it takes is one step to stop me from getting where I need or want to go.

Q: How does the ADA impact you at school and work, in getting around, using transportation, and accessing public and private places?

I typically use public transportation and it’s important for the buses to have lifts installed. There are times when I’m waiting for a bus and the bus will arrive and the lift is broken. Everyone else can enter the bus, but I have to wait sometimes an hour for another bus with a working lift. I joined a committee for people with disabilities in our Metro system to address this issue. Though the committee discussed this issue, nothing was accomplished. I eventually left the committee because I was so frustrated.

On another note, it’s discouraging to have a brand-new building built that does not plan well for accessibility. For example, when I try to access the building, sometimes, the building does not have an automatic door. The doors are typically very heavy, and it is hard to maneuver them when you are using a wheelchair. People need to be more diligent when constructing buildings to make sure they are accessible, and they need to plan to ensure they do not block accessible paths or routes when constructing buildings too!

Q: Tell us about the accessibility program you are taking. What inspired you to pursue this study? What is your capstone project about?

I am currently taking classes at Central Washington University for a certificate in Accessible Studies. There are classes in accessibility and user experience, universal design, accessible information design, and a capstone project.

I have finished the first three classes and I am currently working on my capstone project. My capstone project is entitled “The Importance of Disability Awareness as Part of Diversity, Equity and Inclusion Programs in the Corporate Setting.” I am comparing three companies’ diversity, equity, and inclusion programs and analyzing their attention to disability awareness. It is eye-opening how companies are paying attention to other minority groups but ignoring disability.

I decided to take this program to educate myself on the ADA and how it relates to the empowerment of people with disabilities. Unfortunately, there is still a lot of discrimination against people with disabilities.

Q: Do you plan to advocate for accessibility for people with disabilities? What do you hope to do?

I have done some consulting with local cities, but with my certificate, it will help to have credibility and will add to my resume. I would like to help cities adhere to the rules and regulations of the ADA and thereby help the disability community.

Q: What do you want others to know about the ADA and why it still matters?

The ADA is important to everyone, not just people in wheelchairs or who use other mobility aids. All of us may at some point have a “temporary” disability and the ADA protects them as well. It is a social justice issue.

There are also “invisible” disabilities that are not obvious when first encountered. People with invisible disabilities are also protected by the ADA and are entitled to accommodations. Just because you cannot “see” a disability does not mean that it does not affect one’s daily life and day-to-day functioning.

Disability is unique because it is the only minority group that a person can join at any time in their life.

Q: How can others get involved in advocacy to support the implementation of the ADA and other disability rights efforts?

Others can get involved in advocacy as allies to people with disabilities.

I do motivational speaking to groups about disability awareness. But, when I am out and about, I still get the greatest to the worst reactions from people. Sometimes, people will even come up to me to pray to cure my disability. People need to know that people with disabilities are just like other people. It just may take us a little bit longer to accomplish our goals. Allies should also make sure they know about the ADA and what people need to do to comply with the law – and not take it for granted!

Want to get involved?

Learn more about the ADA here and what to do if you see accessibility needs not being met.

And sign up to advocate with people with disabilities nationwide at thearc.org/action!

Roll of red, white, and blue "I voted" stickers on a white table

Federal Court Strikes Down Texas’ Election Law Provisions Restricting Assistance for Limited English-Speaking and Disabled Voters

/in , /by The Arc

Editor’s Note: You can find the latest news on this lawsuit in this case page. If you need assistance to vote, visit www.fvap.gov.

Washington, DC – A federal court has struck down provisions of Texas’ election law, S.B. 1, that illegally restrict necessary assistance to limited English-speaking voters and voters with disabilities. Last week, Texas officials declined to appeal this ruling. This means that these provisions of S.B. 1 are now permanently enjoined and cannot be enforced.

The order from Judge Robert Pitman prohibits Texas from limiting voting assistance to only reading and marking the ballot and from requiring individuals assisting voters to sign an oath requiring them to confine their assistance to reading the ballot to the voter, directing the voter to read the ballot, marking the voter’s ballot, or directing the voter to mark the ballot. The court further ordered Texas to revise its training and instructional materials for state and county officials, and to distribute notice to all county elections departments clarifying the S.B. 1 provisions that they should not enforce. The provisions at issue directly violated a 2018 injunction holding that such limitations on assistance violated the Voting Rights Act.

In September 2021, The Arc, Legal Defense Fund (LDF), and Reed Smith filed a separate federal lawsuit on behalf of the Houston Area Urban League, Houston Justice, Delta Sigma Theta Sorority, Incorporated, and The Arc of Texas challenging S.B. 1, which includes a series of suppressive voting-related provisions that will make it much harder for Texas residents to vote and disenfranchise some altogether — particularly Black and Latino voters and voters with disabilities. The lawsuit alleges that several provisions of S.B. 1, including the provision recently struck down, violate the U.S. Constitution, the Voting Rights Act, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act. Among other violations, Plaintiffs claim that the law imposes barriers that discriminate against voters with disabilities and deny people with disabilities full and equal opportunities to participate in the state’s election process. This complaint remains pending before Judge Xavier Rodriguez.

“This is a significant victory for voters with disabilities in Texas,” said Shira Wakschlag, Senior Director, Legal Advocacy and General Counsel for The Arc. “Texas voters with disabilities who need assistance to vote will now be able to receive that assistance without illegal restrictions placed on their fundamental right to access democracy. At the same time, many discriminatory aspects of S.B. 1 currently remain in place and we will continue fighting to ensure equal access to the polls for voters with disabilities.”

“Judge Pitman’s order is an important victory for people with disabilities in Texas,” said Georgina Yeomans, Assistant Counsel at LDF. “But there is still work to be done to completely eradicate the discriminatory effects of S.B. 1. That these provisions directly conflicted with a federal injunction at the time they were drafted and passed only highlights the Legislature’s disregard for the law when it enacted S.B. 1.”

“While this order is an important early victory in our challenge to S.B. 1, many egregious and anti-democratic restrictions still remain in violation of the law by intentionally targeting and burdening methods and means of voting used by voters of color, limited English-speaking voters, and those with disabilities,” said Reed Smith partner Ken Broughton, who will argue the plaintiffs’ case in a trial set for next summer. “As we’ve said before, a true democracy seeks to increase voter turnout, not inhibit it, and these restrictions remain fundamentally anti-voter.”

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The Arc of the United States advocates for and serves people wit­­h intellectual and developmental disabilities (IDD), including Down syndrome, autism, Fetal Alcohol Spectrum Disorders, cerebral palsy and other diagnoses. The Arc has a network of nearly 600 chapters across the country promoting and protecting the human rights of people with IDD and actively supporting their full inclusion and participation in the community throughout their lifetimes and without regard to diagnosis. The Arc is not an acronym; always refer to us as The Arc, not The ARC and never ARC. The Arc should be considered as a title or a phrase.

The Arc logo

The Arc Reacts to Supreme Court Ruling Weakening Remedies Available to People With Disabilities Experiencing Discrimination

/in , /by The Arc

Washington, D.C. – Yesterday, in Cummings v. Premier Rehab Keller, P.L.L.C., the U.S. Supreme Court held that damages for emotional distress are not recoverable in lawsuits alleging violations of two federal civil rights statutes covering people with disabilities—Section 504 of the Rehabilitation Act of 1973 (Section 504) and the Affordable Care Act (ACA). This decision will harm people with disabilities who experience mental distress and emotional injury resulting from discrimination in all aspects of public life, including medical offices, schools, workplaces, state and local government programs, and other settings.

The plaintiff in this case, Jane Cummings, is deaf and legally blind. She sought physical therapy services from Premier Rehab Keller (PRK) and asked PRK to provide an American Sign Language (ASL) interpreter at her therapy sessions. PRK refused and told Ms. Cummings that she could instead communicate with the therapist using written notes, lip reading, or gesturing. Ms. Cummings sued, alleging that PRK’s failure to provide an ASL interpreter constituted disability discrimination under Section 504 and the ACA and so she sought damages and other relief.

In partnership with other disability rights organizations, The Arc explained in an amicus brief to the U.S. Supreme Court that without the availability of emotional distress damages, some individuals with disabilities who have been discriminated against on the basis of their disability in violation of federal law will have no relief. As the amicus brief stated: “Often, violations of the relevant statutes do not cost individuals with disabilities money, nor do they impose physical harm. Instead, they are humiliated, singled out, mocked, or made to go without regular access to the service to which they are entitled….Such core harms to human dignity are the very injuries that the Rehabilitation Act, Title VI, Title IX, and the Affordable Care Act are meant to prohibit.” The amicus brief also explained that the standards for proving the level of emotional harm that justifies a damages award are already rigorous and courts carefully analyze awards for adherence to the law and evidence.

“This ruling deprives people with disabilities of justice. These civil rights statutes are intended to protect the rights of people with disabilities and other historically disenfranchised groups. In foreclosing relief for the emotional distress that may ensue from discrimination, this holding diminishes the dignity and respect that people with disabilities deserve and are entitled to as full members of our society. We are very disappointed in this ruling,” said Peter Berns, CEO, The Arc.

Justice Stephen Breyer wrote in dissent that people who suffer discrimination often feel humiliation or embarrassment and that damages for emotional suffering have long been available as remedies in cases alleging discrimination:

It is difficult to square the Court’s holding with the basic purposes that antidiscrimination laws seek to serve. One such purpose…is to vindicate “human dignity and not mere economics.” But the Court’s decision today allows victims of discrimination to recover damages only if they can prove that they have suffered economic harm, even though the primary harm inflicted by discrimination is rarely economic. Indeed, victims of intentional discrimination may sometimes suffer profound emotional injury without any attendant pecuniary harms. The Court’s decision today will leave those victims with no remedy at all.

The Arc advocates for and serves people wit­­h intellectual and developmental disabilities (IDD), including Down syndrome, autism, Fetal Alcohol Spectrum Disorders, cerebral palsy and other diagnoses. The Arc has a network of nearly 600 chapters across the country promoting and protecting the human rights of people with IDD and actively supporting their full inclusion and participation in the community throughout their lifetimes and without regard to diagnosis.

Editor’s Note: The Arc is not an acronym; always refer to us as The Arc, not The ARC and never ARC. The Arc should be considered as a title or a phrase.

A photo of a woman wearing a beige cardigan over a blue shirt and a necklace.

A Review of Judge Ketanji Brown Jackson’s Disability and Civil Rights Record

/in /by The Arc

On February 25, President Biden nominated Judge Ketanji Brown Jackson for Associate Justice of the United States Supreme Court to fill the upcoming vacancy due to the retirement of Justice Stephen Breyer. This is the first-ever nomination of a Black woman to the Supreme Court as well as the first-ever former public defender. Judge Jackson currently sits as a circuit judge on the United States Court of Appeals for the District of Columbia Circuit and has previously served as a clerk for Supreme Court Justice Stephen Breyer, a public defender, a Commissioner on the U.S. Sentencing Commission, and as a judge for the U.S. District Court for the District of Columbia. Judge Jackson has received Columbia Law School’s Empowering Women of Color Constance Baker Motley Award. Judge Jackson’s confirmation hearing before the Senate Judiciary Committee begins on March 21.

Each nomination to the Supreme Court is incredibly significant. The Arc reviews the record of Supreme Court nominees to determine whether prospective members of the Court demonstrate a strong commitment to advancing disability civil rights and ensuring equal application of the law. The purpose of The Arc’s review is to educate the public about a given nominee’s record in order to contribute to greater understanding of the nominee with regards to the issues of greatest relevance to people with intellectual and developmental disabilities (IDD) and their families and supporters.

Judge Jackson has authored nearly 600 opinions since being appointed a judge in 2011. Here, we highlight some areas of her jurisprudence particularly relevant to people with disabilities.

EDUCATION

The Arc’s position statement on Education states: “All children with IDD must receive a free appropriate public education that includes fair evaluation, ambitious goals, challenging objectives, the right to progress, individualized supports and services, high quality instruction, and access to the general education curriculum in age-appropriate inclusive settings.”

In her opinions related to the education of students with disabilities, Judge Jackson has generally demonstrated an appreciation for the obligations of school districts to provide the supports students with disabilities—including those with the most significant disabilities—need to thrive. For example, Judge Jackson has held that public schools must ensure a private placement for a student with a disability can “adequately address” the student’s needs and provide the level of supports required for the student to receive a free appropriate public education (required by the Individuals with Disabilities Education Act) before making the placement.1 Judge Jackson has also rejected a school district’s argument that serving a student with intellectual disability and significant disability-related behaviors was “impossible” or that the student’s behavior excused the district from placing him in a program that could meet his needs and held that the school district violated the IDEA by failing to provide plaintiff an education following his expulsion.2

CRIMINAL JUSTICE

The Arc’s position statement on Criminal Justice states: “People with IDD have the right to justice and fair treatment in all areas of the criminal justice system, and must be afforded the supports and accommodations required to make justice and fair treatment a reality.”

Judge Jackson has generally shown a respect for the dignity of incarcerated people and upheld their rights to receive accommodations and fair treatment while entangled in the criminal justice system. For example, Judge Jackson has held that a jail violated the rights of a deaf inmate under federal disability rights laws when jail officials did nothing to assess the inmate’s need for reasonable modifications despite their knowledge of his disability and failed to provide him with a sign language interpreter, forcing him to communicate only through lip reading and written notes and sending him to solitary confinement.3 In her opinion, Judge Jackson wrote that although “[i]ncarceration inherently involves the relinquishment of many privileges,” incarcerated people retain important rights, “including protections against disability discrimination.”

Judge Jackson has granted a number of compassionate releases during the pandemic, including of prisoners with mental and physical disabilities.4 Judge Jackson has spoken out about the need for a robust public defense system in order to “protect the rights of the accused.”5 Judge Jackson has also expressed concern about the ability of people facing the death penalty to receive adequate opportunity to assert their innocence if new evidence emerges post-conviction.6 Such post-conviction evidence can also be critical in cases involving the death penalty and intellectual disability. The U.S. Supreme Court has held that the Eighth Amendment of the U.S. Constitution prohibits the execution of people with intellectual disability as cruel and unusual punishment and has mandated that states cannot ignore clinical science or impose procedures that create an “unacceptable level of risk” that people with intellectual disability will be executed.7 But proving that an individual has intellectual disability in the death penalty context involves a fact-intensive, comprehensive review of records since childhood as well as expert testimony and all too many individuals who likely have intellectual disability are initially represented by counsel unfamiliar with this area of law and are precluded from presenting relevant evidence to the court later on in the process because of procedural hurdles, resulting in miscarriages of justice for these defendants.

Prior to becoming a judge, Judge Jackson represented criminal defendants with mental health disabilities, including those with co-occurring intellectual or developmental disabilities and, thus, has a keen awareness of the barriers such individuals can face in accessing justice.8

EMPLOYMENT

The Arc’s position statement on Employment states: “People with IDD can be employed in the community alongside people without disabilities and earn competitive wages. They should be supported to make informed choices about their work and careers and have the resources to seek, obtain, and be successful in community employment.”

Judge Jackson has generally demonstrated an appreciation for plaintiffs’ allegations in employment discrimination actions and has held that federal disability rights laws require employers to engage in a meaningful, interactive process with employees with disabilities to ensure the employees have the reasonable accommodations they need to perform their jobs.9 For example, Judge Jackson has held that employers must consider job reassignments for qualified employees with disabilities as reasonable accommodations where other accommodations have proved ineffective. Judge Jackson has also repeatedly emphasized the importance of allowing discovery to proceed to ensure that plaintiffs challenging workplace discrimination have a fair opportunity to present their case.10 Judge Jackson has also demonstrated a commitment to ensuring that pro se plaintiffs—plaintiffs who represent themselves—are able to meaningfully assert their rights in court, ensuring access to justice for those without legal representation who may have misunderstood legal processes and procedures, including for disability-related reasons, among others.11

At times, Judge Jackson has imposed a relatively high bar for proving employment discrimination and has, at times, read procedural requirements in restrictive ways that limit the avenues for relief for employees alleging discrimination.12

CIVIL RIGHTS

The Arc’s position statement on Human and Civil Rights states: “The human and civil rights of all people with IDD must be honored, protected, communicated, enforced and thus be central to all advocacy on their behalf.”

Judge Jackson has generally demonstrated an understanding of the robust protections provided by federal and disability civil rights laws. For example, in a case alleging that Uber discriminated against wheelchair users, Judge Jackson held that people with disabilities do not need to engage in the “futile gesture” of making themselves subject to Uber’s discriminatory policies in order to have standing to sue the company.13 This principle also applies in other contexts under federal disability rights laws and allows, for example, people with IDD who are at serious risk of institutionalization to challenge government policies that deny them community-based services and supports even if they have not yet been institutionalized. Judge Jackson also held that Uber is a public transportation company—not a technology company—and is subject to liability under the Americans with Disabilities Act, ensuring that the rights of people with disabilities are protected in a rapidly changing transportation industry.

Judge Jackson has also participated in a decision upholding President Biden’s eviction moratorium designed to keep renters in their homes during the COVID-19 pandemic, demonstrating a concern for the rights of the most vulnerable residents, which includes renters with disabilities who face a disproportionately severe risk of experiencing homelessness and complications from COVID-19.14

With over a decade on the federal bench, Judge Jackson has extensive relevant experience to serve as a Supreme Court justice. In her nearly 600 opinions on a wide variety of topics, Judge Jackson has demonstrated an understanding and appreciation of the robust protections provided by federal disability and civil rights laws. In disability and other civil rights cases, Judge Jackson has shown a willingness to hear claims from injured plaintiffs, a commitment to avoiding imposing unfair burdens on plaintiffs, and has acknowledged the hardships that drove plaintiffs to seek relief. Her unique background as a public defender prior to becoming a judge and her overall judicial record indicates that she is committed to a generally robust interpretation of disability and civil rights laws, fundamental fairness for all, and ensuring that plaintiffs receive their day in court. Judge Jackson’s historic nomination is important to The Arc as we are committed to access, equity, and inclusion in all we do, and our diverse and growing disability rights movement expects the institutions that uphold our democracy to reflect the full diversity of our country.

The Arc is grateful for a number of groups for publishing their research regarding Judge Jackson’s disability and civil rights record which this statement draws from. For a more thorough review of Judge Jackson’s record on a variety of topics, please see reports from the Bazelon Center for Mental Health Law, NAACP LDF, and the Alliance for Justice.

 

1 W.S. v. District of Columbia, 502 F. Supp. 3d 102 (D.D.C. 2020).

2 Schiff v. District of Columbia, Civil Action No. 18-cv-1382 (KBJ), 2019 U.S. Dist. LEXIS 189606 (D.D.C. Nov. 1, 2019).

3 Pierce v. District of Columbia, 128 F. Supp. 3d 250 (D.D.C. 2015)

4 See, e.g., United States v. Greene, No. 71-CR-1913 (KBJ), 516 F. Supp. 3d 1 (D.D.C. 2021); United States v. Dunlap, No. 17-CR-207 (KBJ), 485 F. Supp. 3d 129 (D.D.C. 2020); United States v. Johnson, No. 15-CR-125 (KBJ), 464 F. Supp. 3d 22 (D.D.C. 2020).

5 Ketanji Brown Jackson, “Responses to Questions for the Record from Senator Ben Sasse to Judge Ketanji Brown Jackson, Nominee to the United States Court of Appeals for the D.C. Circuit,” Senate Judiciary Committee (2022) at 465 (of PDF), available at https://www.judiciary.senate.gov/imo/media/doc/Jackson%20SJQ%20Attachments%20Final.pdf.

6 Ketanji Brown Jackson, “Supreme Court as Gatekeeper: Screening Petitions for ‘Original’ Writs of Habeas Corpus in the Wake of the A.E.D.P.A.” (November 2001), available at https://www.judiciary.senate.gov/imo/media/doc/Jackson%20SJQ%20Attachments%20Final.pdf (pp 1474-85).

7 See, e.g., Atkins v. Virginia, 536 U.S. 304 (2002), Hall v. Florida, 134 S. Ct. 1986 (2014), and Moore v. Texas, 137 S. Ct. 1039 (2017).

8 See, e.g., United States v. Kosh, 184 Fed. Appx. 4 (D.C. Cir. 2006); United States v. Lowe, 186 Fed. Appx. 1 (D.C. Cir. 2006).

9 See, e.g., Von Drasek v. Burwell, 121 F. Supp. 3d 143 (D.D.C. 2015); Mitchell v. Pompeo, No. 1:15-cv-1849 (KBJ), 2019 U.S. Dist. LEXIS 54797 (D.D.C. Mar. 31, 2019).

10 See, e.g., Tyson v. Brennan, 306 F. Supp. 3d 365 (D.D.C. 2017); Ross v. United States Capitol Police, 6 195 F. Supp. 3d 180 (D.D.C. 2016).

11 See, e.g., Horsey v. United States Dep’t of State, 170 F. Supp. 3d 256 (D.D.C. 2016).

12 See, e.g., Alford v. Providence Hosp., 60 F. Supp. 3d 118 (D.D.C. 2014); Crawford v. Johnson, 166 F. Supp. 3d 1 (D.D.C. 2016).

13 Equal Rights Ctr. v. Uber Techs., Inc., 525 F. Supp. 3d 62 (D.D.C. 2021).

14 Alabama Ass’n of Realtors v. United States Dep’t of Health & Hum. Servs., No. 1:20-CV-03377- DLF, 2021 WL 3721431 at *1 (D.C. Cir. Aug. 20, 2021).

 

The backs of two young children with backpacks on. Their heads are out of the frame, and they are standing facing stairs.

Federal Appeals Court Decision Ensures Iowa Schools Can Require Masking to Protect Students with Disabilities

/in , , /by The Arc

DES MOINES, Iowa — The U.S. Court of Appeals for the Eighth Circuit today ruled that the Americans with Disabilities Act and the Rehabilitation Act require schools to impose universal masking rules where necessary to ensure students with disabilities have access to public school education. 

The decision comes in a case brought by the American Civil Liberties Union, the ACLU of Iowa, Disability Rights Iowa, The Arc of the United States, Arnold & Porter, and Duff Law Firm, P.L.C. on behalf of The Arc of Iowa and 11 parents of children with disabilities. The Eighth Circuit held that the clients are entitled to a preliminary injunction to ensure that the defendant school districts in Iowa are providing for universal masking as a reasonable accommodation so that students with disabilities can go to school safely.

“The Eighth Circuit affirmed what we’ve known to be true from the start: School mask mandate bans are discriminatory and illegal,” said Susan Mizner, Director of the ACLU’s Disability Rights Program. “To be able to attend schools safely, many students with disabilities need their schools to require masks. At a time when COVID-19 is ravaging our communities once again, this decision ensures that schools can continue to take basic public health precautions like requiring universal masking to protect their students.”

A federal district court in September enjoined the state from barring mask mandates, recognizing that “forcing children to bear the brunt of societal discord is ‘illogical and unjust.’” The state then appealed that decision, resulting in today’s ruling.

“Today’s decision is an important victory for the civil rights of children with disabilities in Iowa, who have a right to go to school with their peers,” said Rita Bettis Austen, Legal Director of the ACLU of Iowa. “No parent should have to choose between their child’s health and safety and their education, but that is the terrible position that the state put our clients in. It’s important to note that the court’s reasoning also means that even schools that are not named in the lawsuit should be requiring masks when needed to accommodate students with disabilities so they can go to school with their peers. This decision is a huge relief to families across our state.”

The groups are arguing in the lawsuit that federal civil rights laws require schools to be able to require universal masking to give students with disabilities an equal opportunity to benefit from their public education.

The following are additional comments from:

Shira Wakschlag, Senior Director, Legal Advocacy and General Counsel at The Arc of the United States:

“In the midst of yet another COVID-19 surge, the court is making it clear that students with disabilities have the right to go to school safely during this pandemic. The Arc will continue fighting to ensure that students with disabilities in Iowa and nationwide are able to attend their neighborhood schools alongside their peers without putting their health and their lives at risk.”

Catherine E. Johnson, Executive Director of Disability Rights Iowa: 

“I welcome today’s ruling that universal masking as an accommodation is both reasonable and necessary for students with disabilities to attend school in-person safely during the ongoing pandemic. This ruling comes during a time when Iowa is experiencing a surge of COVID-19 cases throughout the state. We are hopeful this opinion provides relief, confidence and clarity for parents, students, and schools to work collaboratively to restore our students’ long established civil rights under federal law and safely return our students with disabilities to their schools.”

The Arc logo

Federal Court Allows Lawsuit Challenging Georgia’s Voter Suppression Law to Proceed

/in , /by The Arc

WASHINGTON, DC —Today, a federal court denied the three motions to dismiss litigation filed by The Arc and others challenging Georgia’s anti-voter law S.B. 202, allowing the case, Sixth District of the African Methodist Episcopal Church, et al. v. Kemp, et al. to proceed.

The Arc is counsel and a plaintiff in the litigation along with plaintiffs the Georgia Muslim Voter Project, Women Watch Afrika, Latino Community Fund Georgia, and co-counsel with the NAACP Legal Defense and Educational Fund, Inc., American Civil Liberties Union (ACLU), ACLU of Georgia, and law firms Davis, Wright, Tremaine and WilmerHale.

“We are pleased that the Court has denied the motions to dismiss, allowing this case to move forward. Voter suppression is a disability rights issue. People with disabilities have the fundamental right to vote and participate in our democracy, but this right has too often been denied. S.B. 202 disenfranchises voters with disabilities and denies them equal access to voting in violation of federal disability rights laws,” said Shira Wakschlag, Senior Director, Legal Advocacy & General Counsel at The Arc.

The Arc advocates for and serves people wit­­h intellectual and developmental disabilities (I/DD), including Down syndrome, autism, Fetal Alcohol Spectrum Disorders, cerebral palsy and other diagnoses. The Arc has a network of 600 chapters across the country promoting and protecting the human rights of people with I/DD and actively supporting their full inclusion and participation in the community throughout their lifetimes and without regard to diagnosis.

Editor’s Note: The Arc is not an acronym; always refer to us as The Arc, not The ARC and never ARC. The Arc should be considered as a title or a phrase.

Close up of the U.S. Supreme Court, focused on the pillars, and doorway.

Disability Rights Groups Urge Supreme Court to Uphold Protections Against Disability Discrimination

/in , /by Pam Katz

Disability rights organizations filed friend-of-the-court briefs today urging the Supreme Court to uphold disability rights by rejecting CVS’s attempt to dismantle non-discrimination protections under Section 504 of the Rehabilitation Act.

The case, CVS v. Doe, involves a CVS-managed prescription drug plan that requires people who need “specialty medications” to receive them by mail, instead of at their local pharmacy. Five individuals living with HIV sued over the requirement, arguing that it effectively prevents them from receiving adequate care for their condition and represents discrimination based on their disability.

CVS is arguing in the case that Section 504 of the Rehabilitation Act does not protect against claims of “disparate impact,” or when neutral policies or practices have disproportionate impacts on a protected class, in this case people with disabilities.

In one of the amicus briefs filed today by 17 disability and civil rights organizations, including the American Civil Liberties Union, the American Association of People with Disabilities, The Arc of the United States, the Civil Rights Education and Enforcement Center, Public Justice, and the Disability Rights Education & Defense Fund, the groups argue that long-standing Supreme Court precedent makes clear that most discrimination against people with disabilities comes from “benign neglect” or thoughtlessness — and that removing the ability to get relief from such discrimination would undermine the entire purpose and history of Section 504. The court explained in Alexander v. Choate that congressional intent would be decimated if Section 504 were interpreted to require intent to discriminate.

In the other amicus brief, filed by the Paralyzed Veterans of America, Bazelon Center for Mental Health Law, National Disability Rights Network, and eight other disability rights organizations, the brief argues that the Supreme Court should not decide the issue of whether disparate impact claims are permitted under Section 504 in this case because the claims brought are, at their core, claims concerning differential treatment and failure to make reasonable accommodations rather than disparate impact claims.

“People with disabilities continue to experience widespread discrimination in all areas of life. Congress passed federal disability rights laws to ensure people with disabilities have comprehensive protections to be included in society and have meaningful access to public life. The disability community has fought hard for these rights over the course of decades and we will continue fighting to ensure the broad protections intended by Congress are not undermined,” said Shira Wakschlag, Senior Director of Legal Advocacy and General Counsel at The Arc of the U.S.

“CVS’s position is not just wrong on the law, it’s dangerous. Disparate impact claims are the backbone of disability rights litigation. If the Supreme Court agrees with CVS, disability rights could be set back decades,” said Susan Mizner, director of the ACLU Disability Rights Program. “CVS cannot in good faith say it supports people with disabilities while simultaneously urging the Supreme Court to gut disability rights. The company should withdraw this case from the Supreme Court docket.”

“The Section 504 regulations were finalized in 1977 after years of serious negotiation between the disability community and government and business representatives,” said DREDF board member Judith Heumann, a leader of the disability rights movement who is featured in the 2020 documentary Crip Camp. “We knew that we had to cover neutral policies — we are so often excluded that way. So that’s what we did. It was foundational.” Heumann was a key witness during the hearings leading up to the Americans with Disabilities Act, and testified about her many experiences with discrimination based on paternalism, restrictive criteria, and stereotypes that were couched in neutral terms.

“The protections of the Rehabilitation Act have existed for almost 50 years. Disabled people rely on the protections within the Rehabilitation Act and section 1557 of the Affordable Care Act to assert our right to demand accountability and recourse when we experience discrimination,” said Maria Town, President and CEO of the American Association of People with Disabilities. “Despite the progress spurred by both disability community advocacy and the presence of these civil rights laws, discrimination is still a daily occurrence for most disabled people. If the Supreme Court sides with CVS, people with disabilities will lose one of the primary avenues we have to defend our rights and seek justice.”

The Rehabilitation Act was passed in 1973, and alongside the Americans with Disabilities Act, established safeguards against disability discrimination. As a result of these laws, society has become increasingly accessible for people with disabilities. Before the Rehabilitation Act, people with disabilities had no resource to challenge discriminatory practices. A decision in favor of CVS would eviscerate the ability to challenge policies and practices that have a disproportionate impact on people with disabilities.

Photo of desks in a classroom with dim, moody lighting

Federal Court Blocks Iowa’s Law Banning Masking Requirements in Schools

/in , /by The Arc

DES MOINES, Iowa — A federal district court today blocked Iowa’s law prohibiting schools from requiring masks. The court ruled that the law violates the civil rights of children with disabilities, including children with underlying conditions, who are more vulnerable to severe illness or death as a result of COVID-19.

The decision makes clear that children have a right under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act to equal access to their educations, which for some children with underlying conditions and disabilities, requires that schools implement universal masking requirements.

The district court recognized that “forcing children to bear the brunt of societal discord is ‘illogical and unjust’” and cited data showing that “the current level of the delta variant in Iowa has increased the infection rate and severity of infection. Some public schools in Iowa are experiencing COVID-19 infection rates at upwards of 60 percent that of last year’s total for the entire school year.” The court also cited data showing that the number of children hospitalized due to COVID-19 is also on the rise.

The decision comes in a case brought by the American Civil Liberties Union, ACLU of Iowa, Disability Rights Iowa, The Arc of the United States, and law firms Arnold & Porter and Duff Law Firm, P.L.C. on behalf of The Arc of Iowa and 11 parents of children with disabilities.

The following statements are from:

Shira Wakschlag, Senior Director of Legal Advocacy and General Counsel, The Arc of the United States:

“The court is making it clear that students with disabilities have the right to go to school safely during this pandemic. The Arc will continue fighting to ensure that students with disabilities are able to attend their neighborhood schools alongside their peers without disabilities without putting their health and their lives at risk.”

Rita Bettis Austen, legal director of the ACLU of Iowa:

“We are grateful to the district court for blocking this dangerous law, which put vulnerable kids in harm’s way and violated their civil rights in education. We are relieved that schools across the state will now be able to protect those kids as required by federal law. No parent should be asked to choose between the safety and health of their child and their child’s ability to go to school, but that’s exactly the position that this law put parents across Iowa in.”

Susan Mizner, director of the ACLU’s Disability Rights Program:

“This is a huge victory for our plaintiffs and all parents of children with disabilities who have been forced to choose between protecting the health of their children and ensuring they receive an education alongside their peers. This decision opens the door for schools across Iowa to take basic public health measures to protect their students. It also should send a message to other states that they cannot put politics above the rights and safety of students with disabilities. Disability rights laws were passed precisely for this situation – in which children with disabilities health and education would be sacrificed for the convenience of the majority. Banning the possibility that schools may require masks — in the middle of a pandemic — discriminates against school children with disabilities. All students with disabilities should be able to attend school safely, as federal disability rights laws guarantee.”

Catherine E. Johnson, executive director, Disability Rights Iowa:

“The order entered today restores our students’ with disabilities long-held civil rights of equal access to their education and full inclusion with their general education peers in the school curriculum and all other activities and programs offered by their school. Today is a monumental day for all plaintiffs, as well as all Iowans forced to choose between sacrificing their child’s health or education opportunities. Effective today, parents no longer have to make this impossible choice, their children are entitled to both.”

Photos and videos of some clients, attorneys, and organizational logos available here: https://drive.google.com/drive/folders/1-XIhBS5ZyNVRRh9lENyhqMbJi5PLqqky

More details about this case are here: https://www.aclu.org/press-releases/lawsuit-challenges-iowa-law-banning-schools-requiring-masks

The decision is here: https://www.aclu.org/legal-document/arc-iowa-v-reynolds-order-granting-temporary-restraining-order

This statement is here: https://www.aclu.org/press-releases/federal-court-blocks-iowas-law-banning-masking-requirements-schools