This is being provided in a rough-draft format. Communication Access Realtime Translation (CART) is provided in order to facilitate communication accessibility and may not be a totally verbatim record of the proceedings.
JASMINE HARRIS: Thank you, very much. Good morning, everyone! My name is Jasmine Harris, and I am also shorter than Anil. I am a professor of law at the University of Pennsylvania Carey School of Law, and my pronouns are she/her/hers. I'm a Latina woman with brown hair and brown eyes with red framed glasses and I'm wearing a red dress and a black blazer with a maroon scarf as well and a multicolored beaded necklace. And it is my absolute honor to be with you here today and to co facilitate the opening plenary discussion with my friend and colleague, Shira Wakschlag, who is the senior director of legal advocacy and the general counsel for The Arc of the United States.
So today we are joined by an amazing group of legal scholars and practitioners who I will introduce to you in alphabetical order. In the interest of time I'm simply introducing them with their current. Their full bios are in the material and online for you to look at. I will remind the speakers today and also for the Q&A portion to please identify yourself with your first name before you begin speaking each time.
With that, our speakers today are Ruth Colker, distinguished university professor and Heck Faust Memorial Chair in Constitutional Law at Ohio State Moritz College of Law. We also have Karla Gilbride who is the codirector of the Access to Justice Project with Public Justice. And Jalyn Radziminski, the director of engagement at the Bazelon Center for Mental Health Law and also I have to call this part out. You are currently a law student at Fordham Law School.
[ Applause ]
And last but not least, my colleague, the Seaman Family University professor Karen Tani. The University of Pennsylvania is also appearing virtual today. The panel is very much in the tradition of the Jacobus tenBroek Symposium. We're designing this to speak across silos and recognize the utility of academics. Some of you may not recognize the utility of academics. I'm here to say there's some utility for us and have us understand what's happening in the trenches and for practitioners to benefit from the ability of academics to zoom out and to connect certain dots. So the target of today's panel is the U.S. Supreme Court and it's, quote/unquote, Disability Docket. I would like to offer a few remarks to frame today's discussion.
Just last week, the court belatedly honored Justice Ruth Bader Ginsberg. She is honored at a court she wouldn't recognize, end quote. With commentators noting that we are in the midst of a constitutional revolution, while others espoused the court's crisis of legitimacy.
Where is disability in these current public debates about the court, about its legitimacy? This panel discussion will challenge the belief that disability is the rarest of unicorns on the court's docket. Many of the academics in the room probably, and probably some of you as law students, may have believed or followed a theory that in your disability classes, antidiscrimination classes, about the absence of disability on the court's docket precisely because of early con law cases like the Cleburne Living Center that defined and enforced the rational basis to state action on disability.
But this view that's so conventional, that's so accepted, that's so predominant in law schools, reinforces an understanding of the court's docket that's largely constitutional based, and one that assumes that a case is, quote unquote, about disability. When it simply concerns disability's specific laws and legal questions. Participants advance a different view, that disability is and has always bench more prevalent on the court's docket that's currently recognized. Adopting a broader view than just a specific body of law at issue, cases can be about disability when their underlying facts relate to litigants with disabilities. The creation or exacerbation of disability based on those facts.
Consider as a historical matter a case that we all know and love to perhaps hate, the Daubert versus pharmaceuticals. This is the case that changed the way cases are litigated and the role of judges as gatekeepers in determining admissibility of evidence. Not only are the facts rooted in disability, or questions of causation about disability. Did the antinausea medication cause Jason Daubert's physical disabilities, but the quality of Jason's life was at issue, as a person with a disability. I also imagine there are few in this room who would dispute the tremendous impact that Daubert has had on the introduction of medical experts in evidence of disability cases. Everything from employment, public accommodations, public services. It affects how we discuss disability, what evidence is the best evidence to prove disability, et cetera.
In addition, irrespective of the presence of disability in facts or legal causes of action, there are causes which will undoubtedly have impacted the disproportionate effects on the lives of people with disabilities. The recent case we'll discuss today is Dobbs versus Jackson versus the Women's Health organization. Not about disability but certainly the effects are moving swiftly through communities with disabilities. So why does it matter whether there's a single disability case on the docket or many or whether people recognize the presence of disability in the Supreme Court. Looking across the broader pool of disability cases today, and moving forward, allows us to see how the court's civil right re entrenchment is unfolding through disability related cases. And most importantly, without publicity. Without the publicity necessary to sound the alarms, ignite the public debate and often not front and center when we talk about this type of retrenchment.
More internally, and this is our hope and goal for the panel, it allows advocates to think strategically about new points of intervention and to broader debates using methods other than law to achieve desired outcomes. In my preacademia days I worked as a community lawyer for the Advancement Project and I did work around racial justice and education. It was founded by former level defense fund civil rights lawyers who were raised and educated in methods. Centering litigation and their efforts around the Civil Rights Act of 1964. As the only pathway to justice. As procedural rollbacks on civil rights laws began to gut protections in the civil rights story, these lawyers pivoted and drew on a different set that included community centered movement and lawyer communications. We recognize that a conversation in this space about the Supreme Court and disability will unfold here, where many of you litigated or helped advance some of the key cases we discuss.
Know that we speak today with humility, gratitude, and invite you to join this conversation with open minds, ready to engage and think strategically about old and new tools of justice, limits, and opportunities of the law. We've designed this plenary session and plenary panel to allow for ample time for audience engagement and discussion. The discussion will begin with the panel participants who set the stage for our collective exchange. So I'm going to take a seat at this time and I'm going to begin with questions directed to our panel participants, and thank you very much.
[ Applause ]
Okay. So we wanted to begin today with a look at the current court, and the court's most recent terms. So I'm going to begin with Jayln. You've been involved in advocacy efforts to get hospital corporation through Indiana versus Talevski a case before the court. Can you tell us a little what the case is about, the potential implications for and beyond the disability community, and what organizing work in the spirit of what I was just talking about have you been doing to try to get this case out of court?
JALYN RADZIMINSKI: This is Jalyn. Thank you so much. I'm a Black and Japanese person. I have long and curly brown here today it's in a bun and I'm wearing a green long skirt and top to match that's vintage with shoulder pads. Trying to be stylish. I go by they and she pronouns. Thank you all for having us here. So a little about HHC versus Talevski and HHC stands for Health and Hospital Corporation in Marion County. It's a case about Mr. Talevski. Unfortunately he is now deceased, but he was a patient at a nursing home and his family brought the case on his behalf alleging abuse as well as overuse of chemical restraints. And the family sued HHC and its nursing home entities under the Federal Nursing Home Reform Act and they were successful and won in circuit court which local activists very much celebrated because a lot of Hoosiers is what we call ourselves in Indiana, we're very excited because that's a difficult court to win in regards to disability rights.
Unfortunately, and this is kind of where we are now, HHC petitioned two really concerning questions that have concerned a lot of disability community, whether the court should raise its past holding on the spending clause programs to give privately and whether spending clauses can be enforced the specific provisions of the nursing home act in 1983. A very complicated case for someone like me. But the gist is, such in 1983, it's to give people the right to sue local and state governments and doesn't necessarily give rights, but the right to sue, to enforce those rights in types of scenarios like Medicaid, as well as a lot of other scenarios of different spending clause programs that have implications even beyond the disability community, as well as the intersections of the disability community and just building off of what Jasmine was saying.
Not everybody disability implication has explicit say in disability and also furthered our conversation by saying the disability community has such intersectional experiences and intersecting identities that I found it really essential to stop this case to build as broad as coalition as possible. What is still at stake in this case as you probably all know, just about 80 million people utilize Medicaid. It's basically a quarter of our United States population. And through the intersectional lens, 20% of Medicaid users are Black and 27% are Latinx or Hispanic. So I really saw the essential need that of course our disability community is very urgent, but also Black Latinx communities did not want to see this case move forward.
And besides Medicaid, which is already a lot of people implicated, it impacts SNAP which gives food stamps to individuals and family, it impacts programs like temporary assistance, as well as juveniles that are impacted by the legal system and opportunities for children and adults who are experiencing homeless in. And so in Medicaid and beyond, there's so many implications to people in the working class, those in poverty, those impacted by many systems that I know as disability rights advocates intersect with a lot of the issues that we care about. And in my experience with this case, which seems to be the bane of my existence for the past year and a half, as well as other cases that impact disability rights like Section 504 and CVS in previous years, it's difficult to get people, the general public, to pay attention to disability rights cases just from my past experiences doing comps and organizing around these type of issues.
And what was unique about Talevski is even though we were successful in getting some harmful disability rights SCOTUS cases out of courts in the past, Talevski was unique because it was in the context where a lot of the hardest hitting players and coalition partners from friendly but executed because Dobbs was on the horizon at the same time. So one can imagine that there could be quite overwhelming. And in addition to that, there was a lot of misinformation we had to debunk about whether both harmful questions would be posed. A lot of deeply embedded political tensions. A lot of things at play that made the normal playbook just not good enough.
So we had to take it a step further, where we used we really broadened the coalition as much as possible. So in addition to disability rights groups, we had a myriad of not just different types of legal advocates, but different types of players in the organizing and grassroots advocacy scene, from jail reform to grassroots organizers in civic engagement, to aging groups to cultural affinity groups. Everyone on deck, even elected officials, joined us in the march to get this case to be dropped. And although this case did reach the Supreme Court, the community did not stop. We did traditional strategies of asking HHC to drop the case. Like past cases, to the point where we crowded all of their means where they could not get past any agenda item besides talking about dropping this case.
We've had over 30,000 individuals write to the HHC board members and elected officials writing petitions as well. We went viral on social media as well. We had people of all ages. Some who were engaged in the press. We had multiple press runs, despite media not listening to us at first in such a crowded time with a lot to care about for sure. But also the youth stepped it up and engaged as well, calling on the board members, mayor of the city and all elected officials to take action. So we are still in it, but I can't say that I can say that no matter what happens we definitely built a playbook to learn how we can find creative ways to support legal strategy led by communities that are directly impacted. So that's what I have to share in a nutshell.
JASMINE HARRIS: Thank you, Jalyn. That's incredible.
SHIRA WAKSCHLAG: This is Shira. My pronouns are she/her/hers. I'm a white woman with brown hair with a bun and glasses and dangly earrings and a green floral jumpsuit. I wanted to jump in on that just to build a little off what Jalyn was saying about the organizing that took place and how critical the work is. Not just working to educate the defendant about what the implications of this appeal to the Supreme Court could be, but also all the media work that happened and the education work to the general public to explain these kind of very arcane legal concepts, and kind of get people to understand. Because like Jalyn mentioned, this is the same time basically at all the media about the Dobbs case and all these cases where there's an immediate understanding by the general public what are the stakes here, how does this affect my life.
And I think sometimes with some of our cases, they can be a lot more complicated or procedural or if they involve these laws that not everyone is familiar with. And so I think through some of that, in addition to all the organizing work, some of the media work that happened. And really got both the local and national media to really take notice, and understand what the stakes were. And we saw a lot of great coverage from that. We had our chapter in Indiana get a local op ed placed to talk about what are the implications to people with disabilities in Indiana and beyond and through the work that Jalyn and others did organizing there was a lot of interest generated to educate about this. So if we haven't yet seen the outcome that we want, I think that's been a really critical piece of this.
JASMINE HARRIS: If I could just throw another question back at you. Which is beyond Talevski, can you speak more broadly about the disability community's recent advocacy before the court, and other efforts to keep cases out of the court. And then I think it would be helpful, particularly given what's on the agenda later today and tomorrow, the session around Amicus briefs, if you can offer a couple of reflections there it would be helpful.
SHIRA WAKSCHLAG: So Jalyn already mentioned a couple of times the case of CVS pharmacy versus Doe and that's another example from the 2021 term of a case with major implications for the disability community where we pushed both an amicus strategy and an advocacy strategy to get the case out of court. Just a little background there, CVS managed a prescription drug plan that required who needed specialty medications to receive them by mail. Individuals living with HIV sued over the requirement, arguing that it effectively prevents them from receiving adequate care and constitutes disability discrimination.
The question before the court was whether Section 504 of the Rehabilitation Act and by extension Section 1557 of the Affordable Care Act provides a disparate cause of action for plaintiffs alleging disability discrimination. Arguing that the Supreme Court precedent makes clear that most discrimination against people with disabilities comes from benign neglect and that requiring intent to discriminate to secure relief would undermine the entire purpose and history of Section 504. The brief argued that the meaningful access standard prohibits conduct that is discriminatory even if unintentional. There were a number of other briefs from disability and civil rights groups focusing on angles of the case arguing that they involved intentional discrimination and explaining the impact a negative role could have in the educational context.
But like Jalyn was talking about with all the advocacy in Talevski, there was a lot of that advocacy happening in CVS as well kind of simultaneous to the filing of all the these amicus briefs. In addition to those, the groups that were involved in these briefs also pursued this direct advocacy through a letter to the CVS board, trying to persuade CVS to withdraw its appeal, by explaining the far reaching implications of their argument, and noting that their petition attacks the very foundation of federal disability rights law, and was setback more than 40 years of hard fought civil rights of people with disabilities. The letter also outlined a number of specific examples of prohibitive discrimination that typically do not result from intentional discrimination such as the failure to provide ASL interpreters and accessible spaces.
The letter went into the history of Section 504 and explained that the disability community galvanized to ensure that the Section 504 regulations reflected Congress's intent to protect disabled people from policies whether intentional or not. The groups through the letter asked for a meeting with the board of directors and explained that the company's stance in this case conflicted with its overall commitment to disability inclusion. CVS agreed to the meeting and issued a press release announced it would withdraw its appeal from the Supreme Court and it would work together with a number of national disability rights groups to protect equitable access to healthcare for all Americans and continue to protect the fundamental rights of people with disabilities.
A quote from Judy Heumann who attended the meeting was included in the press release and I want to read that to honor her memory today as we open up this year's symposium. She said: CVS health engaged in an honest dialogue with disability community representatives and livened carefully to our concerns about what was at stake for disabled people. With the question before the Supreme Court. We look forward to continuing this important work and partnership and thank CVS Health for its commitment to preserving disability rights. And of course Judy's participation in the letter and this meeting was critical to the outcome in persuading CVS of the importance of the questions it was raising before the court. CVS is a great example of the importance to continuing a multi pronged approach in our Supreme Court advocacy. It may not always be successful and we got a great feeling of optimism from that experience that may not carry over into every case.
But it's still really important to go beyond amicus briefs to raise the profile of our issues and make sure the stakes are understood, not only by the opposing side, but by the general public and the media. Since each of these pieces can be critical to a successful outcome. I think a lot of times that translation piece is really critical to explaining there are these abstract theories of law, but how do we bring it down. How do we make people understand why this is important. Why they need to care. How it's going to impact them and their families. So I'll just wrap up by adding that of course many national disability rights groups in this room have filed amicus briefs in the Perez case and we saw an amazing outcome this week with a favorable student holding. That where a student with a disability is seeking compensatory damages under the ADA, is not required since this relief is not available under the IDEA.
And Jasmine already mentioned this, but I know there's a lively discussion going on already on the DRBA list working through the implications of this decision and we have a number of people in this room who have been directly involved in the case, whether representing the parties or through amicus work or otherwise. We would love to hear more from you and your reflections on the decisions and the implications and the Supreme Court advocacy during the Q&A. So unless anyone has anything to add to that piece, I think we're going to move to our next section. And talk about some lessons learned from the current term, and also contextualizing beyond disability specific cases.
So Karla, last year you argued before the Supreme Court in Morgan versus Sundance which was the case addressing the use of arbitration clauses and employment contracts and achieved an amazing result with a unanimous favorable opinion. Can you tell us more about that case and your experience arguing before the court as a lawyer with a disability and what kind of relevance this case may have for disability rights and civil rights more broadly? Are there other cases currently before the court that may have implications for the disability community even though they're not focused on federal disability rights law?
KARLA GILBRIDE: Thanks, Shira and hello everyone. I'm Karla Gilbride. I use she/her and they/them pronouns. I am a white female presenting person with blonde hair a little above shoulder height, wearing a black shirt with green and pink designs on it. And I've got a black lab guide dog under the table here with me. And I'm very excited to be here today to talk about, with this great panel to talk about the Supreme Court. So starting off with the Morgan case. Morgan was about arbitration and specific well, it's about the specific facts of Morgan were about what kind of conduct constitutes the waiver of the right to invoke your arbitration clause. But the bigger thing that Morgan was about, that I think has implications for disability rights and civil rights generally, is how is this statute, the Federal Arbitration Act work. Just to back up and talk a little about the facts and talk a little about the statute.
So Robin Morgan was working at Sundance is which owns Taco Bell franchises and she was working hourly at a franchise in Iowa. She wasn't being paid for all of her work so she brought up a claim for violations of unfair labor standards act and she found out in her job application one of the things that was included in the boilerplate language was if she had a future dispute about anything with the company, instead of going to court, she was required to bring that dispute in a private arbitration, which is kind of a shadow court, where, you know, sometimes a retired judge or a lawyer, someone resolves the dispute. It's usually done behind closed doors, in a conference room. And the decisions are not public in the way that court decisions are.
And these clauses, these arbitration clauses are frequently slipped into employment paperwork. When you apply for the job like in Robin's case or once you start the job. A lot of terms of service on websites. Somewhere in the fine print if you have a problem involving what you've purchased or the service, you have to resolve that in a private arbitration. And the statute that is kind of at issue here is the Federal Arbitration Act which Congress passed back in 1925. And it was advocated for by businesses and like the Chamber of Commerce and people who said we want to be able to hire our own expert decision makers, private arbitrators if we're having a dispute about shipping and what the proper rates are for shipping certain types of goods, we want to be able to hire someone who's an expert in that specific area, rather than have a generalist judge who may not understand all these intricacies of our business. That was where the Federal Arbitration Act came from. And when private businesses entered into agreements to have an arbitrator handle disputes, the courts were often not respecting them.
Often not honoring the decisions that the private orb traitors made. So the statute said these contracts to resolve a dispute in arbitration must be enforced or when, you know, brought to a court, a court must find them enforceable. Save on any grounds that exist in law or equity for the revocation of any contract. That language about "any contract" appears in section 2. There's another section later on, section 6, that says a party goes to court to enforce the statute they will do so for any other matter filed in federal court. You have any other contract in section 2 and any other motion in section 6. So what's happened over the years, as more and more companies are using arbitration not the way that the Federal Arbitration Act and its drafters envisioned, which was commercial disputes between businesses, but they're doing it in this way where I described where it is slipped into the fine print in agreements with consumers and sort of a take it or leave it term for if you want a job, you have to agree to this, it's spread out to encompass more and more aspects of life, including civil rights claims.
A decision back in the 1990s by the Supreme Court said a statutory claim under the age discrimination and employment act can go to arbitration. And now ADA claims frequently go to arbitration, certainly in the employment context. I see more of these clauses popping up in medical, someone is getting medical care, someone is in a nursing home. Often there's an arbitration agreement that governs any dispute that comes out of the quality of the care. Housing providers will sometimes include these clauses for certain types of if you are doing a short term housing or adult day programs will sometimes include these. So there are many contexts involving people with disabilities, where, you know, rights are at stake, those rights may be resolved in front of a private arbitrator, if the FAA is enforced.
They said the case that was presented here was the company, the employer litigated in court for a while, and then kind of belatedly kind of moved the case to arbitration and we argued they had waived their right to do so. And a lot of lower courts had imposed the standard of the waiver of right to arbitrate that was more lenient that basically said because this is arbitration, and arbitration is favored under the Federal Arbitration Act, we're going to be very difficult to prove that the party with the arbitration clause waived that right. We're going to bend over backwards to find that the right is still enforceable. And there was a lot of lower court precedent along those lines. And we argued that that precedent, these cases that had a stronger test or a harder test to satisfy for waiver of the right to arbitrate than for the waiver of other contractual rights was to the text of the Federal Arbitration Act. It doesn't say you have to treat arbitration better. Even though most of the cases were most of the Supreme Court precedents dealt with state laws that treated arbitration worse.
So if you look at the case law it would say over and over again you can't disfavor arbitration. You can't treat arbitration worse than other contracts. But we argued from the text of the statute, that's not what the words say. They say it has to be treated as any other contract, like any other contract. That does mean you can't treat it worse, but it also means you can't treat it better. And that was what the lower courts were doing with waiver, and we said that was contrary to the text. In terms of lessons learned, I would say the approach we took at briefing, the approach we took at argument, was to really hammer home how the text is neutral and you have to follow where it leads regardless of the outcome. It's not about favoring arbitration. It's not about disfavoring it. It's about putting it on terms of equality. And that is really how the opinion read, it's kind of following that logic. So that's why I think it has implications beyond the specific facts of the case. Because it says, you know, courts may not create new rules to favor arbitration, or treat arbitration better than other types of contracts. And I hope that that will have implications for other kinds of cases involving civil rights, wherever these clauses get slipped in, to try to bar people from having access to the courts, to bring claims.
And also the other thing I didn't say about arbitration, to bring claims in a court that is public and that has precedential, where opinions have precedential value where arbitration don't. Whatever happens, happens and nobody really knows about it. So to be able to have public campaigns like what Jalyn and Shira talked about, it's important that happened in a public forum where people can bring their organizing and pressure to bear. So that's a little about Morgan. And quickly, my experience arguing as a blind person in court, that was definitely a really exciting experience to argue in that space where a lot of history has been made. It just felt I was very aware as I was standing up there, of other people who stood there before and of all the really pivotal things in our nation's history that have happened, good and bad at the Supreme Court. It felt it was still closed to the public, so we didn't have a large group of observers in the gallery. But there's always a sketch artist. There's audio recordings but not cameras.
There was a sketch artist who was taking down images during the argument, and he published his sketch of the argument with me reading my notes in braille. So I was really glad to have that sort of visual representation for a larger audience of the fact that a blind person was arguing and using braille in the argument. I did talk to the court about accommodations, and they were a little bit flummoxed like they never thought about this before. Like how were you willing to give me an audible cue of the lights in terms of you have 5 minutes left. What they wound up doing was having a person ring a bell when the light turned on. So I had a human bell ringer. They could probably do a little bit better in the 21st century.
[ Laughter ]
Yeah, it was a really great experience. And I hope there will be a lot of other lawyers with disabilities up there before too long. And then the last thing you asked was are there other cases. A couple of people have mentioned Perez and congratulations to the folks in the audience today who were involved in that case.
[ Applause ]
It's a great victory. And I would say in terms of, you know, when you have a statute that you can use, this is a court right now that's very focused on textualism. That was definitely the approach we took in Morgan. And I think it also worked out well here. There was just a Justice Gorsuch who is very much textual, and he walked through a particular provision of IDEA and talks about the needs to exhaust when you're seeking, I forget whether it's relief or remedies. Seeking relief that is available under IDEA and he flipped that around that means if you're seeking remedies that are not available under IDEA it naturally follows or logically follows that you do not need to exhaust your administrative remedies. If the relief you're seeking is not available under the statute. So there's almost like a mathematical there's definitely a lot of looking back at the dictionary what do these words mean in the year that the statute was passed, and also looking at how those same words are interpreted in other statutes by other courts. And a lot of history going back and looking at contemporary sources. But there's also a symbolic logic to it. If YX than X is not X than Z or something like that. If you can figure out a way to fit the statute that you're trying to interpret into that type of a framework, even though it can seem very narrow, very myopic at times.
And obviously the focus on history, other people will talk more about the problems with a focus on history, because we like to not live in the past at the society. We like to actually evolve and move forward and focus on what do the words mean in whatever year the statute was passed can sometimes make it difficult to do that. When it works for you, when you can use those tools to get to the result that you want, I think they can be very powerful tools with this particular court. And the last case I'll talk about quickly which has not been argued yet, but is on the horizon for later this term and which I think has implications or something I will be following, in terms of its disability connotations. There was not a case about quote unquote disability is the Groff V. Case it involves what the standard of undue hardship forth failure to accommodate on the basis of religion in the workplace. The facts of that case are the person who's a devout Christian and observes the sabbath on Sunday, was working for a post office that contracted the USPS has generally contracted with Amazon to deliver packages on Sundays. So he previously hadn't had to ever work on Sunday.
But now everyone in his division or what his job title was required to work occasional Sundays. He asked for an accommodation and it was denied primarily on the basis that it would cause other people who would have to take over his shifts would be unhappy about that. The source was the effect on other workers and the morale within the workplace. So the question that's been presented to the Supreme Court is whether or not that is sufficient to constitute an undue hardship under Title VII which includes language about accommodating sincerely held religious beliefs unless they would pose an undue hardship to the operations of the business. If you're familiar with Title I of the ADA that's identical to the language about reasonable accommodations for disability and the defense of undue hardship for the ADA. So one of the arguments that the petitioner has made is there's an early Supreme Court case this language came into title 7 in 1972 and 1975 the Supreme Court interpreted to say any inconvenience it's part of a de minimis standard, it doesn't have to be high for any employer to establish undue hardship and to not have to accommodate someone's religious beliefs. And that's not the test that has developed with regard to what undue hardship means in the ADA.
There's a discrepancy between how those terms are interpreted in the two statutes. And the petitioner, Mr. Groff, is arguing that they should be harmonized that basically it's the same statutory language, they should be read the same way. Which means bring the Title VII undue hardship standard up to meet where the ADA standard is which is a significant expense or significant burden on the employer. It will be interesting to see how that turns out, in terms of harmonizing the two statutes. Because much of what has caused the ADA to be interpreted is EEOC guidance as well as court precedent. If you just look at the words of the two statutes, they are the same. And a lot of the other what it means, the significant expense language that comes from regulations from the agencies. So I'm definitely watching that one with a lot of interest.
SHIRA WAKSCHLAG: Thank you so much, Karla. And before I move on to our next question, I wanted to since I know there was a broad question about other cases before the court that are not disability specific that might have implications. Do any of our other panelists have anything they want to add to that. Ruth you may have had something.
RUTH COLKER: Hi, this is Ruth Colker. I use she/her pronouns and I have short gray hair and red glasses on. A black gray sweater.
There are at least two cases that I can think of that are not technically disability cases, but will have disability implications. And one of them also involves religion. So back to the previous comments. There's a case involving a website, I forget the exact number, but anyway there's a case involving a website that does work on plans to do work to celebrate marriages. And they don't want to have to help people celebrate their marriages if they are a same sex couple. And that is prohibited under the state's nondiscrimination statute. So it seems so far afield from disability rights. But to the extent that the court carves out an exception to allow someone to not follow a nondiscrimination statute, we have to worry that might happen in a disability context. And during oral argument, Justice Sotomayor said what if an organization believes that for religious reasons they shouldn't celebrate the union of people who are disabled. And that's obviously something that I think many of us are aware happens historically.
Many with disabilities have had difficulty getting married and having their marriage respected the way that other people's marriages are respected. And disappointingly, that question wasn't even taken seriously. It wasn't actually answered. That has something to do with the persistent invisibility of disability rights that a Justice of the Supreme Court could ask a serious question that everyone else thinks is just a throw away. So that's something for us to be thinking about. And tying back to something that Jasmine said in her introduction, because disability only gets rational basis scrutiny, it becomes easier for people to dismiss disability concerns not to take them seriously, not to have Constitutional impact.
The other case that was argued doesn't address disability but would have disability implications is the affirmative action case involving Harvard and University of North Carolina and their admissions programs. And I think that everyone expects that this court will throw out any kind of race based considerations during the admissions process when it throws out race based congratulations, it would have implications for considering other traits like gender or disability. Because disability only gets rational basis scrutiny and may be the case that arguably some disability considerations could be used in the admissions process. But I should say as someone who's been in higher education since 1985, most law schools, like mine and most universities like mine, don't even publish data about the disability status about their admitted students. And so we don't have anything to lose there, because we've never had anything to gain. And that of course has to do with more political discussion that other panelists have already mentioned.
And I know that I, for one, keep asking my university, my law school, well you've just given us the data on race and gender, what's your data on disability and they get really uncomfortable and have no answer there. And I think we want to obviously push for affirmative consideration of a range of ways that disability sometimes affects a student's qualifications and that may cause an admissions office to overlook the strength of an applicant's profile because of a disability or not considering the many strengths that a candidate has. So that's a story that has a long arc that we'll have to be thinking about in the future.
SHIRA WAKSCHLAG: Thank you. So we're going to continue with you, Ruth. So you're currently writing about the Dobbs V. Jackson women's health organization case and its connection to federal disability law. Can you discuss the implications this case has for the disability community, and how it may interact with federal disability rights law?
RUTH COLKER: Yeah, again. Dobbs is my case that was argued as a disability rights case, wasn't often thought of as a disability rights case and is going to have is already having broad implications in the disability community. And I thought that it might be helpful for the people in the audience who are sort of aware of Dobbs, we all sort of know about it, to actually hear the couple of sentences that the court wrote for how it will think about issues of all the reproductive rights in the future. And we can see how dangerous the rule is that the court carved out for all of us. The court says a law regulating abortion, like other health and welfare laws, is entitled to, quote, a strong presumption of validity. It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimacy interests. These legitimate interests include respect for and preservation of prenatal life at all stages of development, the elimination of bar bake medical procedures, the integrity of medical procession and the prevention of discrimination on the basis of race, sex, or disability.
And so why am I alarmed and concerned about this language? So the court loves abortion with what they call other health and welfare law, a strong presumption of validity. Those other laws include sterilization laws that I think all of this room are aware have been used very much to harm the disability community. And so the court tells us that such laws must be sustained if there's a rational basis in which a legislature could have thought that it would serve legitimate state interests. No that it actually does, but someone could have thought that it did. That's a very low level of protection that frankly scares me. And then when the court talks about what kind of legitimate interest a state can consider, it does mention the protection of maternal health and safety, but it's only from the perspective of how the state thinks it is protecting maternal health and safety. It's not about what the pregnant person thinks is her understanding of her own maternal health and safety. And we all know that others are often miscalculating what the experience is of disabled people.
So it's not empowering at all to the pregnant person for the court to say the states could have thought that it might protect the health and safety of the pregnant woman, and that's not her own calculation. And then at the very end, when the court mentions prevention of discrimination of race and disability, oh, great, disability is mentioned. But it's only mentioned in the context of the state itself deciding what it thinks is the way to protect disability discrimination. It's not empowering the person who was pregnant and their community to sort of make those decisions. And Dobbs is already having dramatic impacts. I think that many of us have been reading on the news. One implication of Dobbs is that now many states are trying to not just ban abortion procedures that are surgical, but they're trying to ban abortion procedures that are done through medication, which is majority of abortions.
And those medications that are used for medication abortion have other purposes that the disability community sometimes uses them for. So we're finding people not having an opportunity to access medication they need, because of this overreaching ban on any kind of medication abortion. But there's so many other problems. And just to be general about it. As some of you may know. Justice Thomas in previous opinions has focused on eugenics and abortion promotes eugenics. But what others have mentioned in some really excellent work, is that when the state bans abortion, it doesn't mean that it's done anything for the children born who were disabled who do not have access to good healthcare. It doesn't do anything for the pregnant woman who may find herself facing some significant medical issues while she's pregnant.
And unfortunately many of the states that are now rushing to ban abortion, really from conception, are the states that have also not engaged in the Medicaid expansion. And so these pregnant women are finding themselves unable to access healthcare during their pregnancies, after their pregnancies, after they have given birth. And so we're just going to see, unfortunately probably a rise in maternal mortality. And this is especially problematic for some people who are disabled and become pregnant and have difficult decisions to make about whether with their doctor, their pregnancy is a safe procedure for them to continue. The court is taking those discussions out of the hands of the pregnant person, and not requiring that states offer any kind of medical assistance to pregnant people.
So this gets back to something that Jasmine mentioned in the opening remarks. Which is that because disability does not get heightened scrutiny, it is going to be very difficult for pregnant people who are disabled, who are adversely affected by Dobbs, to bring to any court's attention, this kind of adverse treatment. Because it's rational based scrutiny which means that states can paternalistically decide what they want to do, how they want to treat them and continue to not offer the kind of healthcare that might be necessary to allow people to safely carry their pregnancies to term and to be healthy after they give birth to a child. So it's a scary time. And, you know, a lot of us are watching closely to see what happens. But most of the work that's being done now is really at the state level. Because it's pretty clear that the federal courts are really not an avenue for the protection of our lives.
SHIRA WAKSCHLAG: Thank you. So Karen, as a legal historian, you bring historical lens to this work. Can you talk about the importance of ensuring our Supreme Court advocacy takes into account the interconnectedness the federal disability and other civil rights laws, and share your perspective on analyzing past civil rights cases with a disability frame?
KAREN TANI: Thank you for that great question. For those of you in the audience I'm Karen I'm an Asian American work with short black hair. As is often the case I think I'm following Jasmine's style lead. I'm wearing a dark red dress and a black blazer. I use she/her pronouns. I want to say from a historian's perspective, I would want to echo some points that Jalyn made and Shira made about the sometimes lower salience unfortunately in the public mind of cases that are cast as this is a disability case. This is specific to the disability community. Even though the legal principles at issue are potentially odd.
So what my historical research has shown is that going back to at least the 1970s, you can see conservative justices opportunistically using disability related cases to embed principles that are sort of trans substantive, that have a broader reach. An example, folks in the room might be aware of Justice Rehnquist and his effort over many decades to reorient the federal jurisprudence. My research with my colleague Katie Ayer traces back the foundations of this and shows how important disability he cases were. They were often these building block cases in the mid-1970s and 1980s and 1990s. Such that by the time he's chief justice and is a kind of stronger conservative coalition inside the court, he can cite these cases to do this kind of conservative federalism work. What I mean by that would be, so for example principles that say states are immune from having to pay damages to private citizens whose rights the states have violated, for example.
Or there are other cases, about having to do with the power of Congress to cite policies and to hold states accountable for a particular behavior. Similarly the Rehnquist turns the ship of jurisprudence in terms of making it much harder to do what I would describe as rights affirming, more expensive work. So for example the violence against women act, from the Morrison case is a good example of something that gets struck down. And I think some of these early disability cases were these foundational ones where fewer people are paying attention, and through these cases Rehnquist and like minded justices planned the seeds. There is a case called Edelman v. Jordan which is a low salience disability case and does major work of reviving the 11th amendment which of course is a state protective part of the Constitution. I have other writings about the Pennhurst litigation from the 1980s which of course matters a lot to the disability community but may be less salient to the general public. Lots of important doctrinal work in the Pennhurst case.
The Cleaver case has come up from the 1990s. This is a case that is sometimes remembered as a victory in a sense that the disabled plaintiffs prevailed. Some work that the court does receives lots of attention has really hardened these tiers of scrutiny. To very much formalize the court's equal protection jurisprudence in a way that it's clear it's not going to expand to include, be more protective, that's an example of a disability case that's doing really significant broader work. There is the Garrett case from the 2000s which Ruth has written about, which I would say is a disability case that does significant doctrinal work in terms of Congress's power under Section 5 of the 14th amendment. So I think there's a real pattern here of the court seizing opportunities in disability cases that it is not necessarily seizing in HHC, say, the race context or the sex context. And then embedding these principles that do important work in later cases. And I think that's a pattern that clearly people in this room are alert to, and I hope that people outside the room become more alert to as time goes on.
The question also asks specifically about civil rights cases, and here again I think I'll make the point that Jalyn raised and Shira raised about how disability civil rights cases, those holdings often reach beyond, for example, Section 504, and will necessarily by implication apply to claims under Title 6 and title 9. And it has to do with the way clauses are patterned after each other. Something you say in one context is likely going to spill over to these other contexts. A historical example of this point is the Barnes versus Gorman case from the 2000s. This is a disability related discrimination case involving whether punitive damages are available in a private action alleging violation of civil rights. And it says essentially those damages are off the tables. And that has spill over effects. A case from last term that were similarly or appears to be working similarly would be the Cummings case.
It has to do the with availability of emotional stress damages in a disability civil rights context. But it will likely spill over again to title XI, to title VI. I think they're brought significance. And I'm heartened in some ways by what Shira had said about the disability community to be effective in getting potentially bad cases off the docket. And my hope perhaps this can come out of conversation, would be how broad are those organizing alliances. And are people outside of the disability community kind of appreciating the high stakes. Or is a concern that many people outside of the space still don't understand the potential repercussions of these cases. I'll stop there, and thank you for letting me, the historian, be part of this tremendous litigation focused panel.
JASMINE HARRIS: Thanks so much, Karen. And I think the other point is to recognize, not only from the conversation today, but also from reflections from the justices themselves about the history and the importance of history moving forward. This court, this textualist court in particular. So thank you for the work that you do in the history space. We want to turn briefly to the future, as we bring this part to a conclusion. And I want to turn to you, Karla, for a moment. You did discuss what's happening at the court now. And we wanted to give you an opportunity to reflect on what may be coming up to the court, not yet quite there. But anything to be looking out for, and how should we think about those cases.
KARLA GILBRIDE: Sure. So you know, there are some of the cases for the next session have already been set, but many of them have not. And so just looking into the near term future, one case that I've been tracking is the Laufer versus Acheson Hotels cases. To back up so everyone understands the term. Article 3 standing is a term we throw around a lot and basically what that means is there a cause or controversy that allows an Article 3 court, a federal court to hear the case. So one of the elements of that case or controversy requirement is that there be some sort of an injury that's already occurred or that is imminent and is about to occur in the future or likely to occur in the future, that gives this plaintiff the ability to seek vindication. I think this is a bad policy isn't enough to get you into court. You have to be personally harmed by the thing that you're challenging. And there is a longstanding principle in civil rights law of tester standings arose in the fair housing context, but it's been used in lots of civil rights contexts, that someone who is not personally going to wrench this apartment can go and find out, will you rent to me as a Black person, will you rent to me as a Deaf person.
Pose as someone who is interested in renting so you can find out if there is a discriminatory policy taking place. And this case applies that or raises that question of test or standing in the context of someone who is testing a website or various websites for various hotels to find out if they list information about whether they have accessible rooms. And the first circuit said they had standing to, as a tester, even though they didn't personally intend to stay at the hotels to test out this website and find out if the information was present. And there is a cert petition, the question about the limits of tester standing, particularly by people who are frequent litigants to bring many of these cases, which is the case for Laufer and that Supreme Court did recently what they call re listing which is on the conference, on the agenda for them to decide whether to grant the petition.
And they put it on for the following week, said we're still thinking about it essentially. We not granting it, we're not denying it. We're still mulling it over. If they're still mulling it over, that suggests there's a possibility that they're seriously considering taking the case. Obviously that one has implications for disability rights and civil rights generally in terms of that tester standing concept. That's one I'm watching, and I'm sure there are others, but just in the interest of time, I'll stop there.
JASMINE HARRIS: Thanks, Karla. Jalyn, I just want to ask you one question before we begin our transition into the Q&A. And that is, in your work you've talked about disability justice. And the importance of using a disability justice lens. Can you say a little bit more briefly about how we can think about this conversation about the Supreme Court through a disability justice lens, or is that incompatible?
JALYN RADZIMINSKI: Thanks so much for that. And I'm finding what a time to be alive, to be a law student, learning statutory interpretation, coming from a disability justice organizing background, and just kind of, for context. I love the way the question was raised. Because the concept of disability justice, some call it framework, some call it a movement created by a BIPOC disability arts group. Originally they were the ones who coined the term and created the concept. Rights and justice in that framework often are not compatible. And it acknowledges that disability rights and legal frameworks are often generally censuring people who have access to frameworks who have access to power, that a lot of our communities of color don't have access to. Immigrant people, people in the LGBTQIA+ people don't have access to all these situations.
It challenges who has power in these situations as well. I think the barriers of that concepts illustrates well in the Morgan case access to the court. That kind of illustrates part of disability justice. But any other part is just me personally, I feel like I'm walking on a tightrope holding two brains at once essentially. Because disability justice centers the leadership of the movement for disability justice by disabled people, by people that are in BIPOC communities that have historically not had access. And sometimes I know a lot of people who work only in the disability justice community can find it offensive that rights group claim that they're using that lens. So it is quite a challenge. But the way I look at it as someone who I'm currently at a bridge between those two approaches is that we have to start bringing those perspectives together, at least to be on the defense of the rights that we have now. While disability justice can help us imagine a better future.
For me I strive to uphold the principles of leadership. The most will impacted I know a couple of us have mentioned a few times intersectionality. And committed to cross movements, I know I touched on it earlier and some other folks have touched on it as well. I think even people in the legal profession, if we hold on to some of those principles, especially in the disability space, it can help take our advocacy a lot further and, you know, language is a social construct and language is what we use for laws that are a social construct. And I think, you know, if we continue to have those type of perspectives when we're reading statutes, it can help inform better outcomes that are more aligned with the communities that a lot of us are a part of, but also the communities that we serve. So we're not speaking for those communities, but rather leaning alongside and supporting those communities.
I think, at least for me, it's been how I've been taking that lens as an approach. And for analysis of SCOTUS in general, I'm honored that I can be in the midst of so many amazing legal scholars and practitioners, because for instance when Ruth talked about her analysis of the Harvard case, I was the only student in the classroom, I was like wow, I can see the implications here. And that's from my training exposures to lawyers who often do look at things from disability justice lenses as well and being surrounded by fellow Black disabled people. So when I heard Ruth's analysis of that, that can be encouraging of people who are up and coming to enter this field. So I think even though the concepts are not compatible and rightfully so. It's hard to hit a reset button. But I think these perspectives can be really helpful to at least get us to push the needle forward, as well as hold the line of the little rights that we have currently. And help us continue to strive to envision a more equitable world that's more just. So, yeah. Thank you.
JASMINE HARRIS: Thank you, Jalyn. And with Jalyn's closing comments, I think that we have much more to say and can say. But instead we're going to cut straight to our Q&A group discussion. So there's a procedure for it. I see a microphone in the center of the room you are the microphone runner, okay. I'm told there is a microphone runner as well. So please, you're invited to join the discussion at this point. I see some hands.
Question and Answer Section
ATTENDEE: Hello. My name is Bernard, I'm a member of the NFB and I'm from Virginia. I'm very much enjoying the panel. I'm legally blind. I'm 56 years old. And I belong in Richmond, Virginia to Lifelong Learning Institute. And they're not at all prepared for me. It's basically a nonprofit, and it's for, you know, senior citizens, you have to be 55 or older to belong. My wife and I just joined a couple of months ago. And long story short, I have little vision left in my right eye, and I asked them if I could bring an old CCTV into the school so I could use it during the classes I take.
And for liability issues or whatever, they said that they would look into purchasing one for me. And so last week we had a meeting. They brought a vendor in. They brought a couple of board members and director of the school, and they found out that it was going to cost 4,600 dollars. And there was opposition from the board members and they said well if he's the only one, we really don't need to purchase one. And it's a bad situation. The teachers are volunteers, and I guess my question is this. If the teachers are volunteers, if it's a nonprofit, do they have any responsibility to me to provide reasonable accommodations? Thank you.
SHIRA WAKSCHLAG: Thanks for your question. This is Shira. So, yes. There is a responsibility to provide reasonable accommodations. There's always of course an analysis that has to go through in terms of an individual's undue burden in terms of cost but there's always a responsibility to consider and provide reasonable accommodations. The question is did they actually meaningfully consider it, what are the different considerations. So it's hard to kind of answer theoretically without knowing more information about the situation. But certainly I'm happy to also talk after about more of the details and hope that we can help in some way so that you have access to the program. Because they certainly do have an obligation to at least provide they need to help you effectively communicate and to access the programming. So thank you for the question. I don't know if anyone wants to add anything in particular, but I would be happy to also talk after to hear more details about the situation and think through how to discuss further with this organization.
ATTENDEE: Hi. This is Jessie Weber from Brown Goldstein & Levy. First, thank you so much for this excellent panel. I my question, I hate to ask this and add to the doomsday, I wonder what you think in terms of how worried we should be about regulations, our disability rights regs. I will tell you anecdotally I have had two hearings, on the record they've expressed skepticism about the validity of the title II regs. Luckily we have strong history about why they're entitled to the weight of the law. But you know, these judges seem to believe that the Supreme Court is about to strike down Chevron and the regs are going to go out the window.
I'm wondering if this is something we should be worried about and if so should we be working with others who are also worried about our regs or do we have some time on this. Thanks.
KARLA GILBRIDE: This is Karla. Jessie, I would be worried.
[ Laughter ]
Yeah. So both in terms of Chevron deference and that's what I was allowing to when I talked about the language in the ADA and reasonable accommodation and undue hardship being fleshed out by regs. I think when the good language is only in regs and not in statute, that's a little bit of a the sands are shifting and it's not the strongest foundation to be building on. And so in terms of where to go with that or what to do about that, I think there are lots of probably different strategies. And some of them could involve building a new alternative foundation of state legislation and other things that we can organize around. But I think, you know, what can be passed through Congress these days, it's hard to say. But the statutes are definitely firmer ground than regs. And I think looking to organizing and other types of action for how to build other alternative things to protect rights. Because I do you know, share your concern about where the court is going with the federal administrative state.
RUTH COLKER: This is Ruth. If I could just add a word that's not quite as pessimistic. We may look back and say it was really good how the ADA in 1990 put in statutory language many of the rules that have been written through regulations under Section 504. So there will be some instances where we actually have textual statutory language and won't have to rely entirely on regulations to further the arguments that we want to make. There's all sorts of problems with that analysis, it's certainly not perfect. But because the ADA's somewhat later statute that may help us a little bit in actually having some textual language to rely on. Today we've heard a lot about how this court loves its textual language. We may find ourselves becoming even bigger experts on all those commas and periods and clauses that are codified in the ADA. Including ADA title II.
SHIRA WAKSCHLAG: This is Shira, I was going to add. Yes, agree with Karla about being very worried, always. But I think there's been just beyond the specific issue you raised of course, you think there's also a tendency now, given what's going on with the court and this clear, you know, interest in taking on these big questions that we feel have been settled for a long time, to kind of reopen them. I just think there's a tendency right now of opposing counsel to just kind of throw everything out there on the table and raise all these different questions and they may have absolutely no foundation, but just trying for what they can and seeing what happens. Seeing what sticks. So maybe to some extent that's always been the case, but I think especially now, with seeing these questions going up before the court, and the appetite to take up those questions, it's a real concern.
I think there's a lot of experimenting happening at the district court level to see what sticks and what goes up. So definitely a lot of concern there. And I think it's also really important, like when we're working in these big co counsel groups and people are bringing different expertise to the table and really thinking through oh, let's say with the CVS case, let's not use disparate impact let's talk about meaningful access. Let's not use another trigger to go back up to the Supreme Court. Just something to keep in mind more broadly for sure.
ATTENDEE: This is Al. While I appreciate all of the handwringing and I do some of it myself, I wonder if anyone has considered the more trollish option to say can we consider taking cases that say, for instance, challenge the, you know, arbitration for situations involving, you know, legislation that was passed under the 14th amendment on the grounds that presents a major question and needs to be presented by Congress before the court can say arbitration trumps all.
Or in situations that the Supreme Court looks like it's about to nuke standing in order to get rid of public loan forgiveness, can we say great that means we can seek disgorgement rather than have the states presumably acceptable laws on things like abortion and elsewhere to say well, okay, to the extent that that discriminates against people with disabilities, fine, disgorge all of your funds to say to the states that are doing these things we're not going to help you fund it and you're going to go broke. I'm wondering whether that's an alternative option. Because I'm very frustrated, as I think we are all.
JASMINE HARRIS: Karla, I thought I saw you making a motion for the mic.
KARLA GILBRIDE: I think that there is a role for creative lawyering and obviously thinking through the exact strategy. I'm not commenting on the specific ones you mentioned, Alex. I would need to think about them. But given you know, the stakes are high, obviously. Especially if you're talking about litigating the Supreme Court or something that might wind up there. But at the same time, there is I think using these doctrines like the major questions doctrine is growing up quickly. I don't know when it first arrived on the scene, but it's taken root now with west Virginia VPA and it gets mentioned a lot. Is it something that is it a new tool to add to the arsenal and use when it might help to advance a policy agenda about the way we want the law to be. And I think certainly you're seeing that with first there was SPA in Texas and a similar law was introduced in California.
What about people being able to individually bring suit regarding gun ownership and that's going to be the same strategy deployed in different places involving different constitutional rights and people's right to privately enforce them vigilante style. And I think in terms of what we do creatively it's just to be doing it in consultation with stakeholders and people who are impacted. As Jalyn was talking about. And making sure that certain people understand what goals the strategy is serving so that we're being intentional that way.
But I certainly think that, you know, using all the tools at our disposal, as long as we're doing so strategically and thoughtfully, and with a mind to who your audience is. I would make different arguments to a judge based on what I sort of know about them and that certainly informed the strategy with the Morgan case and who's on the court and what arguments are likely to be most persuasive to that audience. So I think what you're saying is kind of a different is another variant on that. I'm using the tools and adapting them to the landscape we're living within.
JASMINE HARRIS: Just to add to that, this is Jasmine. I would say as a general rule, it might be wise not to make creative affirmative arguments with this court. I think that it's the same approach that may be from a from a policy side we may have with respect to the ADA. Which is leave the ADA alone. When people say maybe there's some room in Congress to do this work and it's like no, focus on enforcement and leave the ADA alone. That kind of general sentiment and more specifically what Karla is saying about process and what Jalyn said about process is really key. Which is, at the end of the day lawyers represent clients, lawyers represent communities. And so really doubling down on the process piece, which is how are these strategies being discussed and being defined is going to be increasingly important with courts that are hostile. I think we have time for one more question. So no pressure.
ATTENDEE: My name is Ogden and I had a question for Karen. This is a bit of a self serving question. We have a mutual friend who is writing his thesis right now about Pennhurst. So I'm wondering, do we need to do a better job at learning our own history, and how can we take that knowledge to kind of impact disability rights in the future.
RUTH COLKER: Thank you for that question. And you know, I think as your thesis writing friends knows, I'm always delighted to connect with other people who are interested in Pennhurst. And I do think there is just so much to be learned and to be done. I'm a relatively new entrant to disability history and disability legal history, and it's because people like Robbie who I know has come to this conference many times, sort of did that speed work and that publicity work to kind of show maybe people outside of the space why this is so significant and worthwhile and important. So I guess part of my answer is just the more the merrier, in terms of like the importance of this history. And to your point, I think I feel like a certain awkwardness about being a non disabled person doing this work. I think I can contribute, and making contributions in conversation with people in the community.
But I would feel much better about this work if there were more people who lived that experience, who were able to do this research. So I guess I would say I'm all for more people who are closer to that history, having access to archives, for example. The ability to fund the travel and do the kinds of research that I am able to do. And I think the lessons are potentially really big. Not only in terms of illuminating lived experiences and that kind of rich social history, but I think part of the work I'm trying to do is to say this really matters far beyond people who identify as disabled. This is the doctrines that I'm writing about in the Pennhurst case, for example, I think these are sweeping reorientations of public law. And I think that sort of ableism in academia prevents people from seeing that. So I think just the more work that we can push into academic spaces and public spaces more generally would be great. Thank you for your question.
JASMINE HARRIS: And your question lived up to the hype. Thank you all for participating and please come find us if you want to continue the discussion.