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).

 

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The Arc Announces Grant from The Coca-Cola Foundation to Support the Dissemination of Special Education Resources to Ensure Equality for All Families

/in , , , /by The Arc

WASHINGTON – Students with disabilities and their families are experiencing yet another disrupted school year, as the COVID-19 pandemic continues to confront educators and families and creates new challenges in almost every aspect of education. The pandemic underscores the long history of disparities in education for students with disabilities and their families and the need for overdue improvements to the system.

Today, The Arc is pleased to announce that we have been awarded a grant from The Coca-Cola Foundation to expand our support of students with intellectual and developmental disabilities (IDD) and their families. It is a critical time to ensure that students and families are informed and equipped to advocate for what they need to achieve. The funding will allow The Arc@School to broadly disseminate information about special education to 350,000 people – leveraging our new Spanish-language resources to reach Spanish-speaking communities that have been historically underserved and provide information to assist parents to better understand and more confidently navigate the complicated special education system.

“We are excited to receive support once again from The Coca-Cola Foundation. It will allow us to help students with intellectual and developmental disabilities and families feel empowered to gain the benefits of public education in the least restrictive setting possible, as mandated by federal and state law,” said Peter Berns, Chief Executive Officer of The Arc of the United Sates. “Throughout the pandemic, time and time again, families have had to fight for their right to be included in school in a manner that is equitable and set up for success. Equal access to education is a long-standing priority of The Arc and we will keep pushing for better for as long as it takes. We thank The Coca-Cola Foundation for staying committed to education for people with disabilities and for their generous support.”

The Arc@School is The Arc’s National Center on Special Education Advocacy. The Arc@School supports students with IDD (and other disabilities) and their families to successfully navigate the special education system and get the supports and services they need to thrive in school. The program also supports educators to better understand and fulfill their responsibilities toward students and families in the special education system.

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 nearly 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.

The Coca-Cola Foundation

Established in 1984, The Coca-Cola Foundation has invested more than $1.2 billion globally to protect the environment, empower women to thrive and to enhance the overall well-being of people and communities.

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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.”

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Following Meeting With Dr. Rochelle Walensky, Disability Rights Advocates Release Statement and Readout

/in , , , /by The Arc

Washington, D.C. – Following a meeting between leaders from disability rights organizations and CDC Director Rochelle Walensky, advocates released the following statement:

The dialogue with the CDC Director was long overdue. We should have never gotten to the point where the head of our nation’s leading public health agency finds it encouraging that a disproportionate number of COVID deaths are people with disabilities. The disability community’s coordinated organizing resulted in a number of actionable recommendations that were shared with Director Walensky Friday, including:

  • Commit to regular ongoing meetings and consultation with disability stakeholders and CDC Leadership
  • Ground isolation guidance in public health evidence and data and in an understanding of their impacts on those most at risk
  • Take action to center people with disabilities—and other communities disproportionately impacted by COVID-19—by ensuring that all CDC COVID-19 guidance and other response efforts are inclusive of the needs of people with disabilities.

We are grateful for the opportunity to present these recommendations to the CDC, and we hope they and other federal agencies within HHS and beyond will work quickly to pursue them.

Bethany Lilly, Senior Director of Income Policy at The Arc of the United States, said “This was a good initial step for the CDC– listening and learning from disability advocates. But there are concrete policy steps that the CDC must take and we look forward to meeting with the CDC Director and other leadership to move these policies forward. We also know that the millions of people with disabilities across the U.S. want to hear from the Director as well.” 

Maria Town, President and CEO of the American Association of People with Disabilities said, “The ableism that the disability community has experienced in our nation’s response to the COVID-19 pandemic is not unique nor exclusive to the CDC. It is pervasive in the field of public health and in the medical field. I hope state public health agencies and other healthcare entities are closely following our advocacy so that they center the disability community in their responses to the current emergency and future pandemics.”

Julia Bascom, Executive Director for the Autistic Self Advocacy Network, said “We hope that the CDC will use this moment to begin to rebuild trust with the disability community. This must include both a genuine public apology as well as sustained policy change, beginning with the list of detailed recommendations we provided. We look forward to partnering with the CDC on concrete actions to safeguard and support people with disabilities and transform how the agency approaches its work.”

Elena Hung, Executive Director and Co-founder of Little Lobbyists, said “We appreciate CDC Director Dr. Walensky responding to our request to meet with disability leaders to acknowledge the harm her recent statement and the CDC’s policies caused our community throughout the duration of the COVID-19 pandemic. We anticipate immediate action to address the concerns raised and we look forward to ongoing meetings with CDC leadership to rebuild trust with the disability community. Little Lobbyists will continue the work to hold our leaders accountable and ensure our children with complex medical needs and disabilities are part of every decision that impacts them.”

Susan Henderson, Executive Director at the Disability Rights Education & Defense Fund, said “We will be engaging with other agencies within the Department of Health and Human Services, as well as Congress, to make sure that the entrenched ableism that has led to systemic discrimination on the basis of disability, and has cost hundreds of thousands of disabled people their lives during this pandemic, does not happen again. We hope that, working with Dr. Walensky, the CDC leads by example.”

Matthew Cortland, Senior Fellow, Data for Progress, said, “Tens of millions of chronically ill, disabled, and immunocompromised Americans need not just the CDC but the entire federal government, led by the Biden White House, to swiftly implement substantive policies that actually value our lives. Today’s meeting was only the very first step on the Biden Administration’s path to rebuilding trust with the disability community.

I look forward to the CDC and the entire Biden Administration partnering with the disability community to develop a pandemic response that meaningfully safeguards the lives of tens of millions of chronically ill, disabled, and immunocompromised Americans.”

Jamila Headley, Co-Executive Director of Be A Hero said: “Today we called on the Director of the Centers for Disease Control to do two critical things: to put people with disabilities at the very center of the COVID-19 response, and to ground her agency’s interventions and guidance firmly in the evidence of what will best work to keep all of us safe.

Headley continued, “In the richest country in the world, the agencies in charge of our pandemic response should not be grounding our public health recommendations and interventions in an acceptance that COVID-19 tests and high quality masks are (and will remain) too scarce. Instead, they should ground their approach in evidence of what is most effective, and in the deep knowledge of the communities who are suffering the most at the hands of COVID-19. At this moment people living with disabilities and their loved ones should know that our government is doing everything they can to keep us safe and alive.”

“Even in the middle of the largest global pandemic in a century, this country can afford to ensure that all of us—including the 93 million people in America living with disabilities and the growing numbers of people joining our community—thrive. We will keep fighting until they do just that.”

“Today Dr. Walenksy apologized to disability rights leaders for her hurtful words last weekend, and said that she and her agency needed to do better. I agree and tomorrow, I expect her to begin taking action,” said Headley.

Background & Readout

The meeting took place following comments from Walensky on Good Morning America last Friday, January 7 about a study she found “encouraging,” in which deaths among vaccinated people were mostly isolated to those who have four or more comorbidities. The comment, for which Walensky apologized in the meeting, sparked outrage from the disability community. The hashtag #MyDisabledLifeIsWorthy, started by writer and advocate Imani Barbarin, was a top trend on Twitter last weekend. The frustration extends far beyond Walensky’s initial comment and reflects a greater need for government and society to center disabled and at-risk individuals in managing COVID. In recognition of the growing frustration of the disability community, groups requested a meeting with Walensky.

During the meeting, representatives sought to hold Director Walensky accountable for her comments, establish a working relationship with the CDC, and have a detailed discussion with Director Walenksy about policies the agency should adopt and implement to prioritize the health and safety of the disability community. During the meeting, Director Walensky apologized for her comments, and stated it was not her intent to be harmful to the community. Advocates acknowledged her apology, and also stressed the need for a public apology, as disabled and medically complex Americans who were not in this meeting also deserve to hear from Walensky. Director Walenksy also committed to regular meetings with involvement from senior officials and herself going forward.

The following organizations and individual advocates were in attendance: The American Association of People with Disabilities (AAPD), The Arc of the United States, The Autistic Self Advocacy Network (ASAN), Be A Hero, The Disability Justice Initiative at the Center for American Progress, Disability Rights Education & Defense Fund (DREDF), the Epilepsy Foundation, Little Lobbyists, and Matthew Cortland, Senior Fellow, Data for Progress.

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.

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Disability Rights Advocates to Meet With CDC Director Following GMA Appearance; Nearly 150 Disability Organizations Release Policy Demand Letter Ahead of Meeting

/in , , , , /by The Arc

Washington, D.C. – On Friday, January 7, CDC Director Dr. Rochelle Walensky, in an interview with Good Morning America, commented on the results of a research study. Director Walensky remarked that a disproportionate number of deaths due to COVID-19 in the study population occurred among those with four or more comorbidities, calling those patients “people who were unwell to begin with” and these results as “encouraging news”. The disability community, who represent those with four or more comorbidities who died in the study, responded in turn. The hashtag #MyDisabledLifeIsWorthy, started by writer and activist Imani Barbarin, was a top trend on Twitter over the weekend. 

As a result of the controversy, representatives from numerous disability organizations requested a meeting with the CDC Director. Tomorrow, Friday, January 14, several will meet with CDC Director Rochelle Walensky to express their frustration with both the comment and how the CDC’s pandemic response has harmed and often left out the disability community. The following organizations and individual advocates will be represented: The American Association of People with Disabilities (AAPD), The Arc of the United States, The Autistic Self Advocacy Network (ASAN), Be A Hero, The Disability Justice Initiative at the Center for American Progress, Disability Rights Education & Defense Fund (DREDF), Little Lobbyists, and Matthew Cortland, Senior Fellow, Data for Progress. 

Ahead of the meeting, advocates sent a letter to the CDC Director from nearly 150  disability-focused organizations from around the country, representing tens of millions of disabled Americans from every state and territory. The letter, which can be read in full here, reads: 

“The disability community’s faith in the government agencies responding to the pandemic has taken hit after hit with repeated policy choices that devalue disabled lives. For every step in the right direction, there have been steps backwards or actions delayed. It is necessary for the public health of our nation that the CDC and other agencies responding to the pandemic take immediate, concrete policy steps to rebuild that trust, protect disabled and high-risk people, and enact an equitable vision of pandemic recovery that centers on those communities most at risk and begins to shift long-standing systemic inequities.” 

To rebuild the disability community’s trust in the CDC, the letter details several important policy demands and outlines three key requests:  

1) Commit to regular ongoing meetings and consultation with disability stakeholders and CDC Leadership; 

2) Base isolation guidance in public health evidence and data with an understanding of the impacts on those most at risk; and 

3) Center people with disabilities–and other communities disproportionately impacted by COVID-19–by ensuring that all CDC COVID-19 guidance is inclusive of the needs of people with disabilities. 

Finally, the groups are requesting a public apology from Director Walensky to disabled, immunocompromised, and high-risk Americans, as well as an affirmation of the CDC’s commitment to ensuring their pandemic response sufficiently centers the needs of these communities. More than 30 million Americans live with 5 or more chronic conditions, according to the Rand Corporation. 

The representatives in this meeting take extremely seriously their responsibility to people with disabilities, who are feeling scared and forgotten as the United States enters its third year of the COVID-19 pandemic. Accordingly, written statements from the organizations will be shared following tomorrow’s meeting. A press call will also take place at 4:30pm ET, on Friday, January 14, roughly one hour after the meeting. If you are a member of the media and would like to register for the call, please email Jess Davidson, AAPD Communications Director, at jdavidson@aapd.com. 

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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.

A headshot of a smiling former Senator Bob Dole in front of a wooden wall.

The Arc Mourns Former U.S. Senator and Disability Rights Champion Bob Dole

/in /by The Arc

Washington, D.C. – The Arc mourns the death of Former U.S. Senator Bob Dole, who was an important champion in the disability rights movement. Senator Dole served as a faithful ally in fighting for equality for people with disabilities.

A disabled war veteran, Senator Dole exemplified steadfast dedication to the Americans with Disabilities Act, helping to lay critical groundwork and ensure passage of the landmark bipartisan law. He also supported the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) and continued to advocate for the treaty after he retired from the Senate. The treaty would have banned discrimination against people with disabilities but ratification failed in the Senate in 2012.

Senator Dole also started the Dole Foundation for Employment of People with Disabilities, established in 1984. He recognized the importance of job training and job placement for people with disabilities and the personal growth and opportunities employment can provide. Senator Dole also supported legislation in the 1980s to make improvements to Supplemental Security Income to help people receive benefits while working.

Senator Dole fought for the rights of people with disabilities throughout his public service. He shared his personal experience with disability to grow bipartisan support on the issues.

“The Arc will remember Senator Dole as an impactful public servant on disability rights issues for decades. We honor Senator Dole’s commitment and his many years on the front lines of the movement,” said Peter Berns, CEO of The Arc. “We look to today’s elected officials carry on Senator Dole’s legacy of doing what is right to ensure equal treatment and human rights for people with disabilities.”

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CDC Announces Rise in Autism Rates Among Children, as Leading Scientists and Clinicians Call for New Approach to Understanding Autism – Focused on Toxic Chemicals and Genetics

/in , /by The Arc

Washington, D.C. – The Centers for Disease Control announced that autism rates are once again rising among children. The new data says 1 in 44 children in the U.S. is on the autism spectrum, or 2.3% of children. The CDC made the announcement Thursday.

In a commentary published this week in Pediatrics, a group of epidemiologists, toxicologists, and physicians with decades of expertise in research, public health, and clinical practice says the interaction of toxic chemicals with genetic susceptibilities is a major contributor to autism spectrum disorder (ASD). The experts, members of Project TENDR, urge a national shift in research, funding, and regulation toward protecting children’s developing brains from harmful exposures.

Heather Volk, PhD, associate professor at the Johns Hopkins Bloomberg School of Public Health and lead author says: “Mounting evidence tells us the key to understanding autism is to examine toxic chemicals and pollutants in combination with genetics. Typically, researchers look at genetics separately from environmental factors. But the greatest risks for autism and its related impairments may result from gene-environment interactions.”

Deborah Hirtz, MD, pediatric neurologist and professor at University of Vermont Medical Center and co-author notes, “My practice sees children who are on the spectrum and their parents. To make a real difference moving forward, we need to focus our efforts where the science is clearly pointing – toward preventing toxic exposures that may do lasting harm to children’s brains.”

The commentary outlines three starting points for action based on growing scientific evidence:

  • Air pollution exposures during pregnancy and early infancy, resulting from fossil fuel combustion and at levels typically found in large cities, have been associated with ASD in multiple studies.
  • Children exposed prenatally to certain pesticides (“organophosphates”) appear more likely to develop ASD.
  • Emerging evidence indicates prenatal exposures to phthalates– ubiquitous endocrine-disrupting chemicals used in plastics, food processing and packaging, and personal care products – are associated with ASD.

Likewise, some environmental factors can reduce the probability of ASD.  Folic acid around the time of conception may protect the developing brain from toxic chemicals. Exposures to air pollutants, pesticides, and phthalates appear to be more strongly related to ASD in children of women who did not take folic acid or needed higher levels of folate during pregnancy.

Irva Hertz-Picciotto, PhD, professor at UC Davis and co-author, states, “We need far more research studying how environmental exposures are altering brain development, and identifying those that are more potent in combination with underlying susceptibilities.”

“From what we’ve already learned, we know what is necessary to protect pregnant women and children: regulation to prevent exposures to neurotoxic pesticides and phthalates, and to quickly achieve further reductions in air pollution from fossil fuels, starting with communities most highly impacted.”

Project TENDR is a collaboration of leading scientists, health professionals, and advocates working to protect children’s brains from toxic chemicals and pollutants. Project TENDR is a program of The Arc, the largest national organization advocating for and with people with intellectual and developmental disabilities, and serving them and their families.

Heather Volk, PhD, is an associate professor, Dept. of Mental Health, and Dept. of Environmental Health and Engineering at Johns Hopkins University Bloomberg School of Public Health. Dr. Volk is Associate Director of Johns Hopkins’ Wendy Klag Center for Autism and Developmental Disabilities and co-Director of the Intellectual and Developmental Disabilities Research Center (IDDRC) at the Kennedy Krieger Institute. Her research seeks to identify factors that relate to the risk and progression of neurodevelopmental disorders. Dr. Volk has particular expertise in how air pollution exposures combined with other factors, including genetics, impact autism risk.

Deborah Hirtz, MD, is a pediatric neurologist and attending physician at the University of Vermont Children’s Hospital, and a professor of neurology and pediatrics at the University of Vermont College of Medicine. Prior to her tenure at U. of Vermont, Dr. Hirtz was a director of clinical trials for the Office of Clinical Research at the National Institute of Neurological Disorders and Strokes (NINDS) of the National Institutes of Health (NIH). Her work as a clinician and scientist has had a profound impact on child neurology, neuroscience, and children’s health and welfare.

Irva Hertz-Picciotto, MPH, PhD, is Professor of the Department of Public Health Sciences and Director of the NIH-funded Environmental Health Sciences Center at UC Davis, representing over a dozen disciplines. A renowned epidemiologist, her 300+ publications have examined environmental chemicals, social factors, and gene-environment interaction associated with pregnancy and child development, and most recently, health effects of climate change. For the last 17 years, Dr. Hertz-Picciotto has directed a research program on Environmental Epidemiology of Autism and Neurodevelopment, which has shaped the field by generating seminal results linking autism to an array of risk and protective factors.

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The Arc Celebrates CVS Health Commitment With Disability Leaders to Affordable and Equitable Access to Health Care

/in , /by Pam Katz

Yesterday, CVS Health announced the withdrawal of its appeal before the Supreme Court that sought to limit the scope of civil rights protections for people with disabilities under federal law. In collaboration with leaders of a number of national disability organizations, CVS Health will seek policy solutions to protect equitable access to health care for all Americans. We celebrate this victory for the disability rights community.

“Disability rights laws were enacted to provide comprehensive protections against discrimination—including unintentional conduct with discriminatory effects—and to ensure people with disabilities have meaningful access to public life. We are pleased that CVS Health came to the table with the disability community, listened, and acted to ensure the rights of people with disabilities continue to be enforced to the full extent of the law as they were intended,” said Shira Wakschlag, Senior Director of Legal Advocacy and General Counsel at The Arc.

The Arc was part of a large coalition of disability and civil rights organizations that filed an amicus brief in CVS V. Doe arguing that long-standing Supreme Court precedent makes clear that much 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 purpose and history of Section 504 of the Rehabilitation Act. Along with a number of other organizations, The Arc also sent a letter to the CVS Board of Directors calling on the company to drop its Supreme Court appeal.

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.