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“A Roadmap for Disability Rights:” UDC Law Review Convenes Disability Rights Law Symposium

Tuesday, May 7, 2019   (0 Comments)
Posted by: UDC Law Staff
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Audience in Moot Court Room
 

On Friday, Mar. 29, more than 200 people gathered at the District’s only public law school, the University of the District of Columbia David A. Clarke School of Law (UDC Law), for this year’s UDC Law Review symposium “Disability Rights: Past, Present, and Future.” The multidisciplinary symposium brought together people with disabilities, disability rights advocates, practitioners, law professors, law students, legislators, and other academics, students, and community members to address key topics in disability law and policy.

The UDC Law Review Editorial Board selected this year’s symposium topic to reflect on the state of disability rights ten years after passage of the ADA Amendments Act of 2008 (ADAAA). The day-long symposium featured key players in the process to enact the ADAAA into law, including keynote speaker Chai Feldblum, a principal negotiator for the national coalition of disability rights organizations that secured the law’s passage in 2008 and later Commissioner of the U.S. Equal Employment Opportunity Commission (EEOC).

The ADAAA brought about important changes to the meaning and interpretation of “disability” under the Americans with Disabilities Act (ADA) and other federal antidiscrimination laws. In the eighteen years since the ADA’s passage in 1990, a line of U.S. Supreme Court decisions imposed increasingly narrow interpretations of the law’s key provisions. These decisions removed many Americans with disabilities from the scope of the ADA’s protections on grounds that they had “mitigated” their condition through treatment or failed to demonstrate their condition “substantially limits” major life activities within the meaning of the statute.

With the ADAAA, Congress superseded these restrictive interpretations by amending the law, restoring the broad-based construction and application originally intended by the legislature. The ADAAA directed the courts to focus on whether a covered entity discriminated rather than whether a given plaintiff meets the technical definition of disability, while also broadening the definition of major life activities to include major bodily functions and lowering the threshold of the “regarded as” disability test.

Continuing the Legacy

John C. Brittain, UDC Law Acting Dean and Professor of Law, opened the event with a warm welcome to the audience. Dean Brittain praised UDC Law Review students for holding a full-day symposium dedicated to disability law and policy “in this very important moment in the history of disability rights.” After remarking on the “robust” program and impressive lineup of leading disability rights advocates, Dean Brittain applauded the student leadership of UDC Law Review – the editorial motto of which is “where activism meets scholarship” – for selecting a symposium topic that honors the law school’s commitment to “using the law to help those in need to reshape our community.”

Demetria Themistocles, Editor-in-Chief of UDC Law Review, then took the stage to welcome the audience and provide an overview of the day-long event. Themistocles, ’19, spoke powerfully to the importance of both the personal and political to movement lawyering, saying “I want my work, and our work, to go beyond ourselves to serve others.” Themistocles also highlighted the law school’s enduring leadership in disability rights. UDC Law Professor Emeritus Robert Burgdorf was one of the ADA’s original architects and later co-founded the Legislation Clinic in 1991 with the law school’s namesake, former D.C. Council Chair David A. Clarke. Themistocles also noted the important work of Professor Joseph B. Tulman, who retired from full-time teaching last semester after over 32 years of service to the law school. During his long tenure as director of the law school’s Juvenile and Special Education Law Clinic, Professor Tulman pioneered the use of special education and disability rights advocacy in combination with delinquency defense of children.

Themistocles also emphasized the many law school faculty working toward disability rights still today, including Visiting Professor and Director of the Juvenile and Special Education Law Clinic Lauren Onkeles-Klein’s work to protect children living with disabilities from the school-to-prison pipeline. Themistocles singled out Law Review faculty advisor and longtime disability rights advocate Marcy Karin for special praise. Themistocles thanked Professor Karin – who is the Jack and Lovell Olender Professor of Law and Director of the Legislation Clinic – with providing critical support to Law Review staff throughout the symposium planning process.

The ADAAA: 10+ Years Later

Panelists and speaker at lectern
Dr. Rabia Belt, right, Kevin Barry, center, and Samuel Bagenstos, left, at the opening plenary session “The ADAAA: 10+ Years Later.”

The symposium kicked off with a plenary panel reflecting on the state of disability law and policy ten years after the ADAAA’s passage. Kevin Barry, Professor of Law and Co-Director of the Civil Justice Clinic at Quinnipiac University School of Law, moderated the panel. Professor Barry was a member of the team of disability rights advocates that successfully negotiated draft legislative language resulting in the ADAAA’s passage.

Professor Barry led the panelists in an overview of the ADAAA’s key provisions and the coalitional lobbying campaign and negotiation process that led to the law’s enactment. Samuel Bagenstos, Frank G. Millard Professor of Law at University of Michigan Law School, stressed the powerful role of the disability community in the law’s successful passage. He remarked that the disability community’s exceptional emphasis on solidarity throughout the campaign is what, in the final analysis, secured the ADAAA’s broad and inclusive definition of “disability.” He also stressed the disability community’s central role still today in safeguarding federal protections and social services for vulnerable people under the Affordable Care Act and many other national programs.

Dr. Rabia Belt, a legal historian and Assistant Professor of Law at Stanford Law School, compared the federal courts’ longstanding fixation on “defining” disability to other civil rights statues, in which the courts focus on the act of discrimination itself rather than subjecting plaintiffs to a definitional threshold of “race,” “sex,” or other protected categories. In her book project Disabling Democracy in America: Disability, Citizenship, Suffrage and the Law, 1819-1920, Professor Belt documents how judges and lawmakers in the United States used a “common sense” disability model to exclude primarily African Americans and women from the right to vote based on alleged mental disabilities. Professor Belt urged courts to abandon their obsessive reliance on definitions as a metric for who is and is not disabled – and, in the civil rights law context, the siloed approach courts apply to people with identities that overlap multiple protected categories – in favor of an analytical framework that looks to “equity and access across intersecting identities.”

Syracuse University College of Law Professor Dr. Peter Blanck spoke to the importance of using social scientific studies not only to advance disability rights litigation and advocacy but also to address diversity and bias affecting people with disabilities in the legal profession. Professor Blanck, Chairperson of the Burton Blatt Institute at Syracuse, described the Institute’s recent collaboration with the American Bar Association on a nationwide, longitudinal study of implicit, explicit, and structural bias in the legal profession. The first-of-its-kind study examines bias in the legal profession using an intersectional lens spanning disability, race, sex, sexuality, gender identity, and class. Professor Blanck also shared the study’s preliminary insights for increasing opportunity and reducing bias in the legal profession.

The panelists also discussed developments in disability rights litigation in the years since the ADAAA’s passage. Nicole Buonocore Porter, University of Toledo College of Law Associate Dean for Faculty Research and Development and Professor of Law, presented the results of her searching analysis of 2014-2018 federal court decisions in which the claimant was found “not disabled.” She identified 210 cases in which the plaintiff was erroneously classified as “not disabled” despite plainly debilitating conditions such as multiple sclerosis, seizure disorder, and lupus. Among the 210 “not disabled” cases, Dean Porter identified a shocking 54 cases where the court failed to even cite to applicable ADAAA provisions such as the new major life activities and “regarded as” rules. Dean Porter linked the wrongly decided cases to “ignorance, incompetence, and possibly animus” of both attorneys and judges, and she called for advocates to ratchet up judicial and attorney education on the ADAAA.

Legal Director of the National Women’s Law Center Sunu P. Chandy walked the audience through changes in disability rights litigation since the ADAAA’s passage. Chandy has litigated numerous disability cases, both before and after the ADAAA, including as a federal attorney with the EEOC for 15 years, and she noted the marked increase in successful litigation (and settlements) since the ADAAA’s enactment. Chandy stressed the importance of increasing representation and awareness of people with disabilities in civil rights organizations, which “still today lack meaningful representation of individuals with disabilities,” as critical “for strategy, for legal claims, and for building the movement.”

Disability, Leave, and Caregiving

Panelists and speaker at lectern
From right: Joanna Blotner, Tina Smith Nelson, Jessica Mason, and Vivian Nava-Schellinger at the “Disability, Leave, and Caregiving” session.

Following the opening plenary, the audience split up for two breakout discussions. The first session, “Disability, Leave, and Caregiving,” was moderated by Robin R. Runge, Acting Director of the Equality and Inclusion Department, Solidarity Center and Professorial Lecturer in Law at the George Washington University Law School. Runge highlighted the importance of “thinking intersectionally as lawyers” before introducing each panelist.

The National Partnership for Women & Families’ Jessica Mason started off the conversation by comparing the federal Family Medical Leave Act (FMLA), which guarantees only unpaid leave, with federal proposals designed to address the law’s significant limitations. Mason, who is The National Partnership’s Senior Policy Analyst and Engagement Manager, argued that the FMLA’s weak provisions disproportionately harm individuals with disabilities. The FMLA is only enforceable against employers with 50 or more employees. In addition, an employee must have worked for an employer for more than one year and over 1,000 hours in the year prior to an FMLA claim. Even then, the FMLA’s medical leave provision only covers “serious health conditions.” Mason also spoke to the groundswell of support and successful passage of legislation on the local level, which has established a new baseline of paid family leave insurance and paid sick and safe time.

Joanna Blotner, Paid Family Leave Campaign Manager for Jews United for Justice (JUFJ) – an organizational client of the UDC Law Legislation Clinic – challenged the assumption that most people have access to leave from work and spoke to the role of local legislation in strengthening leave protections. Blotner described the District’s new Universal Paid Leave Act, which creates a paid family and medical leave insurance program that offers partial wage replacement for up to eight weeks of parental leave, six weeks to care for an ill relative, and two weeks personal medical leave to care for an employee’s illness. The program guarantees progressive payments for low-income workers, offering up to 90% of a worker’s wages during leave time. The D.C. law, which takes full effect in July 2020, complements the District’s Family and Medical Leave Act, which offers job protection for up to 16 weeks of leave and is far more protective of employees than its federal counterpart, with a lower size and hours-worked threshold for eligibility. Blotner also encouraged attendees to actively participate in the District’s ongoing implementation process to ensure a successful program launch.

Vivian Nava-Schellinger, Associate Director of Strategic Partnerships and External Affairs for the National Council on Aging (NCOA), highlighted the fact that minimal legal attention to caregiving fails to live up to the crucial role it plays in the lives of elders and individuals with disabilities. “Caregiving isn’t a burden, it’s how we show love,” said Nava-Schellinger, adding that the mission for lawyers and advocates in the field is to “eliminate stressors on caregivers” created as the result of insufficient legal protection. After noting that the narrative matters, Nava-Schellinger pointed out that while “caregiving is everyone’s issue and inherent in that issue is aging,” society has neglected the role aging plays in caregiving and care receiving. She also lamented the lasting endurance of gender disparities, noting that roughly 75% of caregivers are women. Nava-Schellinger observed that lawyers need to understand how aging, disability, and employment intersect, using the example of being “too experienced” as potential code for discrimination under the ADA and Age Discrimination in Employment Act.

Tina Smith Nelson, Managing Attorney for AARP Legal Counsel for the Elderly, described a local crisis in the District related to the lack of at-home or community-based medical care for individuals with disabilities. Smith Nelson spoke to the outsized impact of recent budget cuts in D.C.’s Medicaid Program on beneficiaries and caregivers. The District’s State Plan Program provides for up to eight hours per day of in-home care. By contrast, its Elderly Person with Physical Disability (EPD) Waiver Program offers a home and community-based services model to provide elderly persons and individuals with physical disabilities a pathway to round-the-clock medical care in the comfort of their own home. She also warned that the dearth of available nursing home beds is causing District residents to move to neighboring jurisdictions.

Disability, Police Interactions, and the Criminal Justice System

Panelists
UDC Law Instructor Chris Hill (Moderator), Najma Johnson, Claudia Center, Kari Galloway, Heidi Christensen, Jonathan Smith, and others at the “Disability, Police Interactions, and the Criminal Justice System” session.

“Race, disability, gender, they all intersect in the criminal justice system,” said moderator and Instructor in the Legislation Clinic Chris Hill, adding that the panel would attend to strategies for reform focusing on precisely these intersections. To kick off the discussion, Professor Hill turned first to the policing and confinement of people with “hidden” disabilities – meaning disabilities that are not immediately apparent to others, including police – asking the panelists: “What are we supposed to do to fix a seemingly unfixable system for people with ‘hidden’ disabilities?”

Jonathan M. Smith, Executive Director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, attacked the problem at the point of entry saying that “police are the wrong people, in most circumstances, to respond” to people in crisis in the first place. Smith, who served as UDC Law’s Associate Dean of Experiential and Clinical Programs immediately prior to joining the Committee, stressed the importance of decoupling crisis response from punitive and law enforcement approaches. Smith added that the criminalization and segregation of people with disabilities is reinforced in jails and prisons. Individuals with disabilities are also disproportionately placed in solitary confinement and denied good time credit or admission to programs that could result in early release, he said, adding that “at every stage of their interaction with the criminal legal system, people with disabilities face negative outcomes because of disability discrimination.”

The roots of the overrepresentation of people with disabilities in the criminal justice system extend beyond the boundaries of the system itself, noted Claudia Center, Senior Staff Attorney at the ACLU’s Disability Rights Program. Center pointed to the dearth of community-based services for people with disabilities as a key driver of state and local efforts to “warehouse” individuals with disabilities in psychiatric facilities and prisons. Center also described the efforts of disability rights litigators to develop new approaches to combat based on the logic of Olmstead v. L.C. (1999), in which the U.S. Supreme Court applied the ADA’s reasonable accommodation requirement to people with disabilities in institutional care. The Olmstead Court held that individuals with mental disabilities who are confined in congregate care are entitled to receive appropriate treatment and services in a less restrictive setting.

Najma Johnson, Executive Director of DAWN, noted that police approaching people who are Deaf, Hard of Hearing, or DeafBlind victims often accuse them of “faking it” and routinely resort to summary arrest rather than waiting for sign-language-capable interpreters or other supports to arrive on the scene. “The systematic belief that hearing is better impacts Deaf victims in the criminal justice system every day,” Johnson observed, going on to argue that the failure of the disability rights movement to confront disability discrimination in policing and confinement is rooted in white privilege. “Understanding disability rights through white privilege does not mean that it is understood through the Black experience,” noted Johnson. “Prison is disabling the Black community and destroying us through trauma and pain.”

Johnson also stressed the critical importance of ensuring equity and accessibility at every phase of the criminal enforcement process, from crisis intervention to prison facilities to reentry services. “What breaks my heart is, the deaf victims, do they matter to you? Are they important to you?” asked Johnson. Reentry and social services programs that do not ensure accessibility are fueling the disproportionate representation of people with disabilities in the criminal justice system and failing Deaf survivors of domestic violence, sexual abuse, and stalking, remarked Johnson.

Friends of Guest House Executive Director Kari Galloway and former resident Heidi Christiansen articulated the unique challenges faced by women with disabilities seeking to reenter the community after incarceration. Based in Alexandria, Virginia, Guest House provides residential housing and social services to women reentering the community, having served more than 3,000 women since the program’s founding in 1974. Christiansen praised the program’s peer-based model of reentry and recovery services, which recognizes the resilience and strength of formerly incarcerated women. “Necessity is the mother of invention,” said Christiansen, “and women in reentry and recovery” have the capacity to succeed with the right supports. For her part, Galloway described the enduring consequences of the violence and trauma that women with disabilities face in confinement, which stay with women “even after release,” just as “many women may come out of confinement with disabilities they did not enter with.”

In the closing portion of the panel, attorney and organizer Talila A. Lewis, at the invitation of Claudia Center, spoke to the importance of taking a disability justice approach in criminal justice reform and public defense work. Reflecting on the enduring race-ableism in public defense work, Lewis urged the audience to go beyond the mere provision of an interpreter by recruiting lawyers in the Deaf community and employing sign-language-capable attorneys. Lewis described the importance of a disability justice lens in litigation strategy as well, noting that litigators who are “in a court and not talking about disability, you’re making a mistake, you need to incorporate disability into the defense.” Lewis also made clear the limits of the law in achieving disability justice. “Litigation can’t save us. The systems that abuse us can’t save us,” said Lewis, urging the audience to attend to “the intersections of the intersections.”

Disability and the Military Community

Panelists
From left: Dr. Nicole Tuchinda, David Boelzner, Brandy Disbennett-Albrecht, Aniela Szymanski, Vernecia Smith, and Peter Romer-Friedman speak during the “Disability and the Military Community” session.

Moderator Dr. Nicole Tuchinda, a Clinical Teaching Fellow and Supervising Attorney in the Health Justice Alliance Clinic at Georgetown University Law Center, focused the panel on how military service often leads to or exacerbates disabilities in military-connected families. Professor Tuchinda mentioned how her own military family experienced the toll of multiple deployments and virtually unlimited service requirements of the U.S. Navy. Professor Tuchinda shared how her husband’s deployments promoted anxiety in her children and how her husband has been required to be “on call,” working and ready to operate, 24 hours a day for over 200 consecutive days at a time. The mental health toll on her husband and family members has been significant.

David E. Boelzner, a Clinical Assistant Professor of Law at the William & Mary Law School, opened the panel with an overview of the intricate veterans benefits system, including benefits compensation schemes, the evolution of various veterans benefits, and recent changes to the appeals process. Professor Boelzner explained the historical context for the existing benefits system, noting that veterans benefits were initially envisioned as pension payments – cash paid as a reward for service in the military. However, due to widespread corruption during the Civil War, Congress began restricting these payments to military personnel. Professor Boelzner went on to describe the three-step claim process in existence today. First, a claimant must file with a regional office. Second, the regional office must gather evidence to support the filer’s claim. Lastly, the regional office must grant a final decision based on the evidence collected.

Brandy Disbennett-Albrecht, Training Manager for the Benefits Service Line of the Virginia Department of Veterans Services, described the “frustrating process” that stymies veterans with disabilities from accessing the few benefits that remain today. Disbennett-Albrecht explained the various gaps in the system’s design that leave many veterans unable to obtain benefits. Among other things, the evaluating doctor regularly fails to review a patient’s file prior to the exam, and appointments are often limited to 15 to 20 minutes. Without adequate time to review a patient’s file, access the claimant’s condition, and render a diagnosis, many service members are summarily denied the benefits they have earned. To improve the hearing process, Disbennett-Albrecht recommended that examiners accept brief statements from witnesses present at the time of the event relied on by the claimant.

Aniela Szymanski, Civil Affairs Officer for the U.S. Marine Corps Reserves and Director of Government Relations at the Military Officers Association of America, focused on emerging policy trends during her remarks. She highlighted the dangers of toxic exposure to recent service members, particularly in combat zones and family housing. Given the increasing frequency of deployment and reassignment for many service members, pinpointing the exact moment of exposure can be difficult, and the delayed onset of symptoms compounds the issue. She also addressed the impact of service on the mental health, fertility, and neurocognitive processing of women veterans, including the need to change policy responses to better address the intersection of service, disability, and sex. Finally, she mentioned the confusion caused by having different statutory definitions of “disability” to separate or retire from the military and access VA benefits or Social Security Disability Insurance.

Vernecia Smith, Program Manager for Veterans Workforce Development at Melwood Veterans Services, spoke to the need for reintegrating service members into civilian positions after service. Military personnel frequently need assistance translating military experience into civilian job skills to successfully transition back to work after service, according to Smith. She discussed several programs designed to better reintegrate service members in civilian employment, particularly apprenticeship-based models.

Peter Romer-Friedman, Counsel at Outten & Golden LLP, spoke about the importance of The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which offers job protection to guard and reserve members, as well as protections against discrimination based on military service in civilian employment. Romer-Friedman observed that “without USERRA there is no guard and reserve” in the first place, adding that the law “is like ADA on steroids,” as it requires employers to find any job that the person can do, with or without accommodations, when someone returns to civilian employment. Despite its promise, Romer-Friedman noted several needed changes to the law, including the shifting of the burden of finding a suitable job to the employer rather than the returning service member. Romer-Friedman also pointed out the need to address arbitration provisions and mentioned some of his successful class action litigation for veterans with disabilities under both USERRA and the Rehabilitation Act.

Disability Beyond the Workplace

The second breakout session featured disability rights attorneys working toward equity and accessibility in housing, voting rights, disaster planning, and local government. UDC Law Associate Professor of Law Rafael Cox Alomar moderated the panel. Professor Cox Alomar introduced the speakers and praised the “stellar lineup of experts” as leading the way on disability rights law in underexplored areas.

Karla Gilbride, Public Justice’s Cartwright-Baron Senior Attorney, identified housing as a surprisingly neglected area in disability rights litigation and advocacy. “There are still a lot of barriers and lots to be done to make housing accessible and integrative in the community,” said Gilbride, adding that individuals with disabilities face “not only physical barriers in rental housing but also widespread discrimination by rental housing providers.” Disaster response and relief is another critical area for disability rights advocates, explained Gilbride, and litigators are increasingly bringing suit to ensure that municipalities consider the needs of people with disabilities before catastrophe strikes. Gilbride gave an overview of the many gaps remaining in local emergency plans, including planning for fully accessible and ADA-compliant communications, medical support, and shelter sites. Gilbride pointed to the promise of Olmstead for addressing institutionalization, isolation, and abuse of individuals with disabilities in the disaster relief setting.

Jessica Hunt, Attorney Advisor for the D.C. Mayor’s Office of Disability Rights (ODR), spoke to D.C.’s recent efforts to address the needs of people with disabilities in emergency planning for the greater D.C. area, saying planners are “working hard to develop an accessible transportation framework, mass medical care plans, and facilities.” Hunt described ODR’s involvement in recent emergency planning evaluation efforts by the District, in which city planners staged mock drills at emergency shelter sites and tested evacuation routes. Hunt went on to exhort the audience to raise awareness about local agencies and legal protections focusing on disability and human rights that offer an important alternative to federal disability rights litigation, which can be costly and time-intensive.

The Lawyers’ Committee for Civil Rights Under Law’s Julie Houk, who is Managing Counsel for Election Protection at the organization, drew the audience’s attention to the intersection of disaster planning and voting access for individuals with disabilities. Houk highlighted recent litigation brought against state and local governments on the Eastern seaboard in the wake of hurricanes and floods, as government planners worked to restore infrastructure and hold timely elections without accounting for how the system would accommodate voters with disabilities, and with often disproportionate results to voters of color. While online voter registration is often described as a kind of panacea by voting rights advocates, Houk said “the problem with online voter registration is that it’s often not accessible for people with disabilities.” On the background of the U.S. Supreme Court’s rollback of the Voting Rights Act in Shelby County v. Holder (2013), Houk spoke to the need for advocates to push state and local legislation to ensure equity and accessibility in voting systems.

Andrew Imparato, Executive Director of the Association of University Centers on Disabilities and a member of the legal team that negotiated for the ADAAA’s passage, decried recent efforts by the Trump administration to impose so-called work incentives on public benefits recipients. Proving a disability exemption from “workfare” requirements is a time-intensive and uncertain process, said Imparato, threatening many individuals with disabilities with the termination of public benefits. Imparato argued that such changes pose real consequences to people with disabilities, as big-dollar programs like Medicare already fail to live up to the ADA mandate given the dearth of long-term disability services and supports.

Disability and Education

Group photo
From left: Lydia X. Z. Brown, Adrián Alvarez, UDC Law Professor Lauren Onkeles-Klein (Moderator), Tara J. Miles, and Katherine Pérez at the “Disability and Education” panel.

Lauren Onkeles-Klein, UDC Law Visiting Assistant Professor of Law and Director of the Juvenile and Special Education Law Clinic, moderated the discussion, taking an intersectional lens to the discussion of how educational systems often fail students with disabilities.

Practitioner-In-Residence in the Disability Rights Law Clinic at American University Washington College of Law Adrián Alvarez opened the panel with a focus on the “medical model” of disability, particularly its focus on deficiencies and impairment rather than a child’s capabilities. Professor Alvarez highlighted the Flores settlement for particular mention, explaining that Flores was designed to ensure that children who have immigrated to this country without documentation receive education while in detention, while also expediting children’s transition out of confinement. Unfortunately, as Professor Alvarez pointed out, Flores does not include an express guarantee of special education services to children who are detained. Additionally, Professor Alvarez discussed the unique challenges that immigrant children with disabilities face, including a history of violence in their home countries, traveling long journeys with interrupted education, and schools in the United States that may, contrary to the law, fail to evaluate a child with suspected disabilities.

Lydia X. Z. Brown, Justice Catalyst Fellow at the Judge David L. Bazelon Center for Mental Health Law, spoke next. Brown has fought for disability rights for almost a decade. Brown identifies as multiply disabled and has consistently confronted assumptions that “disabled people cannot be at the forefront” of disability-rights advocacy. “The work I am doing is literally for my own survival, and the survival of people I care about who are living alongside me,” Brown said. “We will die if we sit and wait for privileged people to help the disability community. We must take the initiative and speak up for ourselves.” Brown identified a number of fundamental flaws in our educational system and discussed some of the work they are doing to upend the violence inherent in an educational system that was not designed to educate students with disabilities and those students with intersecting marginalized identities.

Tara J. Miles, Family Educator at Kendall Demonstration School, opened with a discussion of her personal experience as a Deaf child growing up with a family of hearing people as well as an educator working in a quasi-public-school setting with children who come from both majority-deaf and majority-hearing families. Miles, who is now an educator with an elementary school associated with the Laurent Clerc National Deaf Education Center at Gallaudet University, shared how her personal experiences shape her current work with families. Miles identified the many ways in which race and ableism play a major role in whether or not students with disabilities are supported in their communities and educational environments. Acknowledging that neither the medical nor the educational communities have taken the steps to dismantle the structures, policies, and procedures that entrench this differentiated approach, Miles emphasized the importance of cultivating a generation of students with disabilities that advocate for themselves.

Katherine Pérez, Director of the Coelho Center for Disability Law, Policy, and Innovation at Loyola Law School, challenged the medical model of disability that frames disability as an “illness” that can or should be “cured.” Pérez herself grew up with a psychiatric disability, but she did not identify as someone with a disability until law school. According to Pérez, her sense of disability justice took hold based on her relationship with her younger sister, who has an intellectual disability, and it deepened once she embraced her own disability. She went on to discuss the harm that ableism has on all people with disabilities and how it divides those with disabilities from each other, diluting their advocacy power. Pérez also discussed her work to develop a new framework of looking at disability and its intersection with critical race studies to create a new base of power and understanding for disability rights advocates. Her goal is to bridge the gap between the portion of the disability-rights movement that has been centered on a more white, privileged experience of disability with the experiences of people of color with disabilities.

After the panel, Brown noted that ableism was “front and center in the conversation at UDC” – an approach that is sadly unusual for other national conferences on disability rights. Brown identified the importance of ensuring representation of individuals with disabilities on panels to meaningfully discuss “disability oppression as violence” that is “structural [and] pervasive throughout culture and society.”

Disability Rights: The Next 10 Years

The second breakout session, “The Next 10 Years,” brought lawyers and advocates together to think through next steps in disability rights law and policy. Laurie Morin, UDC Law Professor and Director of the Gender Justice Project, set the stage with a forward-looking perspective, asking the panelists to describe “how we move the needle” in the next ten years.

The Bazelon Center for Mental Health Law’s Jennifer Mathis targeted the false distinction between disability rights and civil rights for special attention, saying “still today, disability rights are not seen as civil rights.” Instead, disability continues to be viewed as a government entitlement or special privilege according to Mathis. Disability rights opponents rely on this frame to argue that rights for individuals with disabilities are somehow “harmful to other people,” said Mathis, who is Deputy Legal Director and Director of Policy and Legal Advocacy of the Bazelon Center. Mathis urged the disability community to attack this distinction, saying that “to move the needle, going forward this has to change.”

Ma’ayan Anafi, Policy Counsel at the National Center for Transgender Equality, identified the ADA’s express exclusion of gender dysphoria as a current point of challenge for advocates and litigators seeking to expand the ADA’s protections to transgender people. Anafi traced the statutory interpretation and equal protection arguments that led to several successful challenges to the ADA’s exclusionary provision in the federal courts, in cases seeking accommodations for trans individuals in identification documents, prison facilities, and other government-administered programs. Anafi also problematized the unstated assumption that trans individuals do not have independent or cooccurring disabilities outside of the “gender dysphoria” label, when in fact trans people are much more likely to have a disability and trans people with disabilities face higher rates of poverty, unemployment, and sexual assault.

Next, American University Washington College of Law Professor Robert Dinerstein spoke to the need for litigators and advocates to explore workable alternatives to guardianship proceedings. Dinerstein – who is the law school’s Director of the Disability Rights Law Clinic – explained the problematic nature of guardianship determinations, which compromise autonomy of decision making for individuals with disabilities deemed “incompetent” by substituting granting such decisions to a legal “guardian.” Dinerstein called for further development and implementation of alternatives such as the supportive decision-making model. Dinerstein singled out the lack of workable alternatives to guardianship proceedings as significant obstacles to the movement toward deinstitutionalization and community integration of individuals with disabilities. He also flagged employment and internet accessibility as two other areas that need improvement in the next decade, noting that people with disabilities remain substantially less likely to be employed then individuals without disabilities and that much remains to be done to increase internet accessibility under Title III.

Dr. Leslie Francis, Alfred C. Emery Professor of Law and Professor of Philosophy at the University of Utah, spoke to the importance of thinking through the potential “backlash” to disability rights measures to inform legal and movement strategy going forward. Professor Francis articulated three themes for neutralizing potential opposition. First, to attack the perception of disability rights legislation as protecting entitlements or special privileges as opposed to civil rights and antidiscrimination protections. Second, to double down on the “non-categorial” nature of the ADA’s definition of disability, and as reinforced by the ADAAA, to refocus the public and the courts on discrimination that must be remedied rather than imposing a technical definition of disability as a threshold. Third, to carefully distinguish whether in particular circumstances nondiscrimination requires accommodations (adjustments to individual differences) or modifications (changes in structures or policies that are generally applicable). Professor Francis closed by urging the crowd to focus on remedying discrimination, not on who can qualify for statutory coverage.

Disability and the #MeToo Movement

The audience reconvened for the closing plenary panel in the Moot Courtroom, “Disability and the #MeToo Movement,” moderated by Professor Marcy Karin, faculty sponsor of the symposium.

L. Dara Baldwin, Director of National Policy for the Center for Disability Rights (CDR), a nonprofit, community-based organization for people with disabilities. Baldwin described CDR’s unique fusion of advocacy and supportive services and effectiveness of peer-based approaches to movement organizing against sexual violence committed against people with disabilities. Baldwin drew a sharp contrast between “disability rights” frameworks that tend to individualize people with disabilities and “disability justice” frameworks, saying that “disability justice aims for collective liberation” of the disability community in all its diversity rather than incremental remedies. Baldwin also weighed in in on the failed promise of the Prison Rape Elimination Act (PREA) for individuals with disabilities who are incarcerated, urging PREA advocates to reset strategy to incorporate a disability justice lens going forward.

Co-Director of Legal Programs at the Network for Victim Recovery of DC (NVRDC), Kristin Eliason spoke to the urgent need for victims’ advocates to build out greater access and supports for people with disabilities who are victims of assault. Eliason – who oversees NVRDC’s representation of crime victims in criminal prosecutions, Civil Protection Order cases, and Title IX campus grievance procedures – stressed the responsibility of service providers to make services accessible. Eliason went on to explain the importance of honoring survivors’ right to self-determination, as many victims’ services agencies still struggle with problematic assumptions about the capacity of individuals with disabilities to make their own choices about what steps to take in response to an assault. “Our staff always pushes itself to address and meet the needs of survivors themselves,” said Eliason, noting the importance of honoring the wishes of people who have suffered sexual assault and intimate partner violence. Eliason also spoke to the need of contesting the decisions of legal “guardians” of adults and minors living with disabilities if the decision conflicts with the victim’s own choice.

In an investigative series last year, NPR’s Joe Shapiro chronicled the epidemic of sexual assaults against individuals with intellectual and developmental disabilities. Shapiro played audio clips from several interviews in the series – titled Abused and Betrayed – in which organizers in the disability community recounted sexual assault and its aftermath, as many survivors are confronted with disbelief and stereotyping. Yet women with intellectual disabilities are assaulted at rates seven times higher than others, and perpetrators are more likely to be people known to the victim.

Mia Ives-Rublee, Founder and Coordinator of the Women’s March Disability Caucus, detailed the importance of making movement organizing both physically and emotionally accessible for individuals with disabilities, particularly in the #MeToo movement. “Disabled women are often silenced not only in the disability community but in women’s spaces as well,” said Ives-Rublee, but pointed to the fact that women with disabilities are organizing toward bodily autonomy and reproductive justice as well. Going forward, Ives-Rublee urged advocates to implement support systems in advance of organizing events, to ensure accessibility and support services are in place for women with disabilities before, during, and after the event.

A Roadmap for Disability Rights: Keynote Speaker Chai Feldblum

The symposium culminated in the keynote address of longtime disability rights lawyer and activist Chai Feldblum, who was a key player in the fight to pass both the ADA and ADAAA. Feldblum was later appointed by President Barack Obama as a Commissioner of the U.S. Equal Employment Opportunity Commission. Feldblum, who is now director of Workplace Culture Consulting at Morgan Lewis, delivered a rousing speech on the past, present, and future of disability rights.

“I'm awestruck by both the breadth of the issues that you talked about today and the incredible depth of knowledge and experience represented on the panels,” said Feldblum. “What has happened here today could become one of the most important roadmaps we have for disability rights going forward.”

Feldblum reflected on the rallying cry adopted by the disability community at the time of the ADA’s passage in 1990, “We don’t want your pity, we want our rights!” While the ADA and ADAAA made great strides toward greater equity and accessibility for people with disabilities, Feldblum pointed out that nominal legal rights often leave people behind and stressed the importance of community integration to the ADA. She called for increased efforts to fulfill the promise of federal disability law to ensure the safety, dignity, and integrity of individuals with disabilities.

“When characteristics are demeaned by society, we must reclaim them. Our characteristics are essential aspects of our identity, but they do not define us. Being proud and open about these aspects of ourselves is what allows us to live with dignity,” said Feldblum. “This is our present and it is our future if we proceed in an intentional and strategic way.”

Feldblum turned next to the #MeToo movement. “We are at a moment now where a range of social actors are focusing on the issue of harassment, from nonprofits and religious groups to business and media,” said Feldblum. “Shame on us if we don’t use this opportunity” to make change. “We have to be both intentional and strategic as we move forward,” said Feldblum, adding that advocates must “channel the energy we have no to energize all people that have been left behind, those treated unfairly, and that means people with disabilities.”

With the conclusion of the keynote address, Professor Karin took to the podium to invite the audience to the closing reception to celebrate the event, as well as the UDC Law Review students and others who worked to make the event a success.

Group photo
From left: UDC Law Review Editor-in-Chief Demetria Themistocles, UDC Law Professor Marcy Karin, keynote speaker Chai Feldblum, and Professor Kevin Barry snap a photo after the event.

The ADA Project

The UDC Law Review “Disability Rights” symposium dovetailed with the launch of The ADA Project, a unique collaboration between the Quinnipiac University School of Law Civil Justice Clinic and the UDC Law Legislation Clinic. Throughout the full-day symposium, participants were invited to share testimonials about the ADA and ADAAA.

The ADA Project is designed to provide information about important aspects of the ADA that may be helpful to people with disabilities, advocates, lawyers, and courts. It contains materials to facilitate successful claims of disability discrimination, analysis of the definition of disability, and information to stay up to date on emerging areas of the law. Finally, it serves as a public repository for legislative history materials related to the ADA and ADAAA.

Materials from the symposium, including available speaker PowerPoint slides and presentation videos, will be made available on The ADA Project website later this year.

 


more Calendar

5/27/2019
No Classes/University Closed (Memorial Day)

5/28/2019
Summer Non-Clinic Classes Begin

7/4/2019
No Classes/University Closed (Independence Day)

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