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.
PRESENTER: Hey, everybody. I think we're going to get started on the workshop part of our Loper Bright presentation.
I think when we talked about doing this as a workshop, we were imagining a bunch of people sitting around a table, so it's a little daunting to continue to be up here on stage. We do want to make this as interactive as we can.
I was really hoping to have a workshop with information going both ways.
But and the other thing we thought we would be doing is starting off with introductions, but I think that's going to take the entire hour.
So I want to start just by getting a sense of the types of work folks are doing. So can I see a show of hands for folks who are working for nonprofits?
How about lawyers in private practice?
Any nonlawyers here? Yay. And do we have anyone -- I've got to ask this.
Do we have anyone working in government? Federal or state?
Thank you for your service.
In these trying times.
AMY ROBERTSON: Just to summarize. We saw two hands on working in government service, everybody else nonprofit. And I saw the other hand over here was another person working in government.
Are you working federal or state government?
State government.
Can I ask what part of the federal government?
(Off microphone)
Are you asking me?
I'm asking you. We heard from him that he was at DOJ.
I work for HHS.
AMY ROBERTSON: So the thing again as we were sort of envisioning this, as 10 people sitting around a table, we would use since we've asked and talked for the last hour and a half, ask folks if Loper Bright is starting to come up in your practice at all.
And I guess I would be interested in hearing from people who are starting to hear, to get anything from motion in court, motion to dismiss or motion for summary judgment, or as I've sort of heard in some conversations, even just kind of threats from the defendant, like you can't rely on that regulation anymore, Loper Bright. The end. So we have runners. I would like to hear how it's coming up for people in their practice.
ROBERT DINERSTEIN: And do introduce yourself.
ATTENDEE: My name is Kelly. I'm an attorney with AARP Foundation. We've had the threat raised in front of the Court that the defendants in our Olmstead case in New Hampshire are going to raise Loper Bright on a number of issues and summary judgment is due in mid May so we would love amicus support.
Our case is a methods of administration case under Title II of the ADA and they're raising among other things Loper Bright, but I think because that's grounded primarily in regulatory regulation, I think that that's part of where they're really thinking they've got something on us. And so we have an integration mandate claim as well, so I think that's going to be something that we're going to have to face imminently.
Like in the next month.
AMY ROBERTSON: Like I said I think there's a large crew that's ready to help with amicus support and methods of administration was in the 1978 regs.
MEGAN: And as I mentioned to Kelly, both were in the Georgia case that was briefed by both DOJ and by GAO, The Arc, Bazelon, I'm forgetting people.
ATTENDEE: Hi, I'm Rebecca also with the AARP Foundation and the example I'm going to give is outside the disability rights context but an example of how far these issues are spreading. We just completed briefing on a motion to dismiss one of our employment discrimination lawsuits.
And defendants raised Loper Bright as a defense where we had cited some EEOC guidance saying that if you are directly advertising for recent college graduates, then that constitutes age discrimination. So naturally the defendant said well, it's Loper Bright.
You can't use guidance documents anymore. And also by the way, look at how the EEOC hires people who are just out of law school for those jobs and does advertising.
So the EEOC are a bunch of hip, to which we, among other things, said well, we're not litigating about the EEOC, are we? We're litigating about your company and what they're doing.
MEGAN SCHULLER: One thing I want to note on that is something we have seen coming up in our tracking of Loper Bright cases, which I do want to note democracy forward is doing a comprehensive job and we have been working directly with them to make sure it's capturing all of the statutes that intersect with disability rights.
But this kind of challenge about guidance documents really has nothing to do with Loper Bright. Because it's not about a regulation interpreting a statute.
It should be maybe talking about Kisor and Auer deference that Bob explained and we have seen defendants inflating them and I think it's going to be important to remind the Courts those are different issues. It's not a Loper question.
Kisor V. Wilkie did not overturn Auer and there are still contexts that include the append sees to the ADA regulations because they are issued through a notice and comment rule-making process. At least there was one citation in Kisor V. Wilkie as an example of what should still get deference. Because of that thought process and again it's also a question of whether the regulation is ambiguous in that case.
But there are some good arguments for why we should still be getting deference for DOJ interpretations of its own ADA regulations in many instances those certainly is getting whittled down and courts are more skeptical.
ROBERT DINERSTEIN: And of course, given this administration, what it's doing with the guidance. As you probably saw in the last day or two, they withdrew about 12 guidances from DOJ some of which were COVID related and arguably not a problem to withdrew them, but others that went way back, giving guidance to people things it's bizarre to withdrew them and the idea seemed to be like anything you know is wrong. It seems like anything that came before January 20th is wrong.
What it does I think with Loper Bright and Megan is exactly right it's not really a Loper Bright issue, but it also goes to the question of what is the process in which the agency went through to present -- so the gold standard is the regulation it's going through notice and comment, guidances generally don't.
But as Megan said with the ADA standards, that initial guidance was linked to the regulations and went out for notice and comments.
So arguably there's more process involved there. And I think consequently more likely to get more Skidmore respect if not Chevron deference.
MEGAN SCHULLER: And that could be in guidance depending on your judge and I would be thoughtful about it, there is an argument that you should still be getting Kisor V. Wilkie deference for that interpretation.
AMY ROBERTSON: I would add at long as it exists.
MEGAN SCHULLER: As long as it exists.
AMY ROBERTSON: I think there's a whole -- I hinted at this in the first part of this session, but I think we have to start to be ready for some pretty radical moves by agencies to just simply get rid of regulations and then we will have a whole different fight in court. We're all going to become administrative law lawyers so we'll have a big fight as to whether the DOJ, for example, would have the authority right now to withdraw the Title II regs. I think the quick answer is no, but that's a big fight that we may face in the future.
MEGAN SCHULLER: I think our colleagues in the federal government, many of whom are career attorneys who are very dedicated to this work, may have a lot of internal fights there fighting too, because in order to comply with many of these executive orders, they're being asked to find sacrificial lambs and that's a very difficult position. So I think we're going to keep seeing those kinds of actions of rescinding things that they can do more easily.
And so I do think, just strategically speaking, there were a lot of cases for a long time, and this will come up more in the at-risk Olmstead panel I guess it's Kathryn and Jennifer will be speaking about later that the DOJ guidance on Olmstead was heavily relied on by many courts and many litigants and that that is probably not a wise strategy right now.
It doesn't mean you can never cite to it, but don't rest your arguments on it.
I have a question for my co-panelists.
Do we think those 11 withdrawn regs they were weird and insignificant. Do you think some valiant DOJ staff person was told find 11 pieces of guidance to pull?
Since we're all letting our hair down here.
MEGAN SCHULLER: I would say that's very likely scenario. Maybe not told 11, but they had to find things.
AMY ROBERTSON: I'm seeing Ken nodding his head. Hi, Ken. We look to you for everything regulatory.
No thoughts on that?
Anyone else running into -- way in the back.
ATTENDEE: I wasn't here for the first session so I apologize if this question was already asked.
AMY ROBERTSON: I think you're Sam.
ATTENDEE: I'm Sam Kreen I'm an independent consultant. One thing I was wondering already is have people started thinking about what it would look like to use Loper Bright aggressively or offensively. Because we know that this administration is going to come out with bad guidance.
And even bad regs at some point. So like do we have -- do people have a plan to start actually saying no, actually, we don't have to listen to this at all because of Loper Bright or would that be are people concerned that that would backfire in other litigation?
AMY ROBERTSON: I think we need to start thinking about that. I saw Bob had printed out the P flag case, which do you want to talk about that?
ROBERT DINERSTEIN: Yeah, I mean. So it has been -- if P which was decided by a district court judge earlier this month, the title is executive order -- I have to read it because you know it but it's just so offensive. This is the on January 20th the executive order entitled defending women from gender audiology extremism and restoring truth to the government. And the judge enjoined it and essentially it's a very long opinion and thank you Amy for bringing it to my attention. It's from the district court of Maryland here.
It's Judge Herson.
There's one reference to Loper Bright and it basically says this regulation is inconsistent with preexisting law. So that, I think, is very much an argument that one could make. And again, without getting into the very specifics of Chevron and Skidmore and the other cases, there's always been an issue of whether the regulations are going further than the statute or not consistent with the statute.
The first 504 case the Supreme Court heard, the regulations at that point were just coming out. And the Court wasn't really relying on them but did look to them to define some basic terms, which at that time hadn't yet been.
And there's this line in there saying if in fact the regulations went further, and did something that the plaintiffs were asking for, we would have to say that they were ultra virus, they were not consistent with the law.
But the reality is that if you look at the wide range of the ADA and 504 cases, there are some cases like Bragdon.
There’s a lot of reliance on not only a specific regulation but kind of the architecture of the regulation, how they develop, it's a wonderful opinion for that and for other things too. And there are other ways like the Sutton trilogy and Toyota where they couldn't be bothered to look at the regulations and ignore some obvious that would have been helpful. The sands are sift shifting a lot of ways, but Sam to your point, use the tools you have at your disposal.
If the tool even though it was seemingly going after somebody for another purpose, if it's available to use in a more positive or affirmative way, of course.
We should do that.
MEGAN SCHULLER: Yeah, I think I share the view that this is the law now, however you feel about the decision and its reasoning. And I think in both directions the reasoning of Loper Bright makes it a steeper hill to climb if you are defending newer interpretations, newer regulations. I think that means it's an affirmative tool if you want to challenge an interpretation or regulation.
We also encourage people to reach out to us and we can talk about more some of the reasons that, for example the new 504 regulations are actually very well steeped in longstanding law, even though they may have been more recently issued and are well-supported and aren't really new interpretations, though it's a new regulation.
I think it's something people have to think about in both directions, and it's certainly something that we will all probably be using more affirmatively if there are new regulations coming that run afoul of disability rights issues or other protections for people with disabilities.
KATHRYN RUCKER: This is Kathryn. I'll add one footnote. I found it ironic that judge Roberts' criticisms of the Chevron case Chevron created this, what is it like eternal fog of uncertainty, I think is the language. So obviously we're swimming in some pea soup right now, so maybe he was a bit prescient in thinking that was an issue.
But another way to look at the decision is that it just shifts the uncertainty from administrative agency interpretation to judicial interpretation.
So I would probably just be a little cautious in thinking about affirmative arguments and be making those determinations on a statute-by-statute basis, and keeping in mind the Court and jurisdiction that you're in front of.
AMY ROBERTSON: Any other thoughts? We had a couple of things that we wanted to talk about. One of which kind of came up at the end of the main plenary, which is what about regulations that sort of post-date the key regulations that were incorporated by reference.
And that's really everything from even the 1991 Title II and Title III regulations obviously were not incorporated into the statute, DOJ reissued a set of regulations in 2010 that very specifically also expanded on the design guidelines in important ways.
The 2024 HHS regs that Megan has been talking about, and the DOJ has also issued regulations governing web access under Title II medical equipment under Title II, and the access board has issued but the DOJ never adopted the public right-of-way regulations.
And so all of those are sort of more recent and maybe not as subject to -- you can't go directly from some of their provisions, you can't go directly to a provision in 1978 or 1990.
A lot of them you can. I think this is a lot of what -- I don't want to put words in your mouth, but what Megan was just talking about, that even where they're talking about a new or more specific subject, it's very much using the language and framework of these older regulations.
But I think more importantly, and this was my theme at the end of the last session, but fundamentally the delegation is very strong and very broad and the Loper Bright decision specifically states that we air gate to ourselves the best reading of the statute and sometimes the best reading is the statute delegated to the agency.
It goes on to say will recognize that delegation consistent with constitutional limitations, so who the hell knows what that's going to mean, but fundamentally the decision says sometimes the best reading is that it really is up to the agency. And that's clearly the case with Title II, Title III, and Section 504.
And then against the level of detail that each of these regulations has in its implementation in the notice and comment, as you know currently Title II has I think five appendices full of detail about each stage of notice and comment and the kinds of input that they had, the hearings that were conducted, the questions addressed. So I think these all make very if fertile ground for a robust Skidmore respect.
So I think those are the ways -- my gut when I was starting to do this research, oh, my gosh what about the regulations, what about pro ag? I think that's going to be safe as well. I think there are good grounds to support and defend those regulations as well, based on reasoning that is contained in Loper Bright.
MEGAN SCHULLER: I think that also is a good segue into talking about the newer HHS 504 regulations, which are under attack in Texas V. Becerra and I think again, I want to say honestly every word of that regulation is reflective of longstanding law. It had not been updated in a very long time. And much of it is codifying what the Courts have decided. And explaining what courts have decided.
It also has in that preamble a very helpful explanation of the reasoning and basis for each of the provisions and where there is new language, why it is, and how it is reflective of longstanding law. So while we all celebrated because it was long overdue for updating, it was not new interpretations.
This is what we all had understood the law to mean, that the Courts had interpreted the law to mean. And so whether or not you get that Auer Kisor V. Wilkie deference for the preamble and the append sees, it's really helpful to look to it in reading and doing your briefing and making your arguments, because it was very thoughtfully done and has a huge amount of support in the record for every single word that was very carefully thought through issuing that regulation.
It doesn't mean that it's not a huge threat to have a challenge in a district court of the choosing of 17 states. And we didn't get to make that choice.
But there are very strong arguments for the fact that it should if the case ever gets argued, basically be untouched and should be upheld and arguments that, you know, I think we can make using all of the tools that we talked about, the Skidmore factors, the statutory language, the kinds of arguments that should resonate with any judge.
I think we're all concerned by the signal that that case sends, that things are being attacked, that frankly I didn't expect to be so aggressively attacked, that they are so longstanding and well-established.
But it doesn't mean that we should sort of completely say like oh, no, we're going to lose.
I don't think that's true at all. I think it's important that we're being really thoughtful and prepared.
I think we have very good arguments for protecting not only the statute, but the regulation.
ROBERT DINERSTEIN: You know, I want to add too that, of course, the nature of both the plenary and this discussion is we're doing a lot of law talk about regulations, court interpretation, statutes.
But it's also really important to work with advocates, families, others who are out there who are the beneficiaries of these regulations and historically as many of you know, some of the key victories in our movement have been because there has been a groundswell from civil society. And reinforcing legal moves.
So with regard to Texas v. Becerra, a lot of the AGs heard from their constituents what do you mean you're arguing for 504 being unconstitutional do you know how much we depend on this. And their response was interesting.
We're not challenging 504. Just any resources that are actually directly through 504 for voc rehab, we're not challenging that at all.
Well, the 504 power is not the specific -- includes it, but the funding that's coming under title 505. It's all the other financial assistance from whatever source, that's what it's meant to cover.
So it's very misleading for them to say o, we're not really challenging.
Number two, their pleadings don't reflect any amendment to suggest -- even if you did interpret it as a flat-out challenge, they didn't mean it.
They're talking out of both sides of their mouth.
But I think if people out there understood that there is a threat and they're not in fact putting their money where their mouth is, that's going to affect some of these folks and I think we have to be thinking about that as well. It's not just things you can do in the Courtroom.
ATTENDEE: Hi, Jessie from Brown, Goldstein & Levy thanks so much for this great panel. I'm sort of thinking through some half-baked ideas how we can be aggressive trying to shore up the regs and Megan your comments about AGs in certain states are targeting judicial districts with judges who are going to enjoin these regs. I'm wondering if we should be thinking strategically as well about enforcing, relying on the regs in courts that we like to get some shored-up rulings.
But then I'm also thinking if the conservative judges end I up enjoining these regs, which sort of seems to be applied nationwide, how that would interact with cases we might have ongoing in more favorable jurisdictions and I'm kind of going through mental gymnast particulars trying to figure out how that would all play out so I'm curious for your thoughts.
MEGAN SCHULLER: I can say all of us have always been thoughtful about where you're going to bring your cases. You have to be aware of the case law in your circuit and we should definitely continue to do that and a lot of us are going to be I'm sure needing to bring affirmative cases to challenge actions that are discriminatory, rules and regulations, guidance.
And there's many different ways that Texas V. Becerra case for example could resolve and we don't know how it will go so it could be that the case is resolved by the parties and then we see actions by the administration and we will need to respond to those and might not choose to do it in the district court of Texas.
So you know it will depend on the fact and the parties and the issues. I think we should be very thoughtful and strategic right now. And I do think we have to vigorously defend our clients' rights and our constituents' rights and our own rights, but we also need to be aware of the risks in different claims that we're bringing.
And decide, you know, is it in our best interest or our clients' best interests to bring certain claims right now, where there might be a risk of significant harm and rollback of the law as opposed to advancing their rights and protecting them. So I think those are all conversations we all need to continue to have.
And I'm hoping we'll have more opportunities to sort of get together and talk through specific types of claims and the arguments and considerations. I think it's rarely never bring a claim, but it might be very rarely bring this claim now because we want you to understand all these risks that might come with it. And often that means you're more likely to get an appeal. I still think it's very consistent of thinking what is in the best interests of your clients and the defense of disability rights.
ATTENDEE: Hi, Kelly again. I think the other thing we have to think about is how do we organize as well as the other side is organized. Because the Roman firm, the Brown, Goldstein & Levy they have those people on the other side too, and they're sharing their strategies and we're encountering them as private lawyers who are representing states and they're using the same playbook across multiple states in ADA cases, including Loper Bright.
And so I think that one of the things we have to do is try to figure out with amicus strategy, but also by sharing briefs that are happening, that are being used against us affirmatively, and so we can foresee what the arguments will be. There's one that we just -- a West Virginia case a child welfare case came up and it's the same counsel going against us in New Hampshire. And it was the exact same discovery request that he was serving on us in New Hampshire that he used, and won in West Virginia in a child welfare case.
So I think we have to weaponize this stuff ourselves I think and really make sure we can get people ready and also be ready with our own discovery requests that counter those things. So I think there's a lot of organization that we have to do on our side, not just waiting for amicus though.
Like I think we have to be affirmatively sharing this bad stuff that's happening to our clients.
MEGAN SCHULLER: I think that's a really good point and one up here many of us have put a lot of thought how best to do that.
Also coordinating with NDRN and other folks. So I welcome ideas from the audience on the best ways to do that.
I also welcome people reaching out, because we are starting to compile resources to make sure we're ready to go, to make sure we're checking in with each other and coordinating in an effective way.
I think some of the challenges we're facing is that there's so many folks out there who aren't in this room who are also doing disability cases, and as has been noted, like the ADA and 504 really are not the only statutes we're relying on, so we've been trying to put together like a list of all the different statutes to track 1557 and Medicaid and all the P and A statutes and P and A standing and there's so many and really do welcome ideas and collaboration and coordination on how we do this effectively.
ATTENDEE: Hi. I'm actually -- my name is Nicky, but I'm not an attorney. I’m a student who is interested in the law. I had a question one of the things I've noticed there's been a whole lot of activity surrounding the percolation of nationwide injunctive relief. I guess my question would be would the disability rights community and advocates welcome curtailing of the nationwide injunctions and would they see that as benefiting their clients or would they still like that as to some degree a strategic tool in the toolbox, if you will.
AMY ROBERTSON: It always depends on what the injunction says, I suppose. We've pushed for them and we've pushed against them.
MEGAN SCHULLER: I would say having tools taken away from us is one of the biggest threats and challenges right now. Outside of the substance of the law, there's lots of challenges happening to class certification and you know, all the different mechanisms and tools we use to defend people's rights, and that's another piece that we have to be really careful in monitoring and coordinating on.
But I think overall we don't want fewer tools.
Certainly we're going to challenge them as applied in certain cases.
ATTENDEE: Good morning, like Nicky I am finishing up my undergrad. I’m a senior at Villa Nova and I've been doing a lot of grassroots advocacy around Becerra and my question was around specific portions of the complaint around protections being placed in institutions. I know there was a phrase quoted from justice Kenny disabled people being placed in institutions isn't always discriminatory so I'm kind of wondering what the implications of the sections around institutionalization could be in Becerra, because it did seem like in the joint brief on the 19th they did touch it a little bit too.
AMY ROBERTSON: I'm looking at you, Megan.
MEGAN SCHULLER: I'm happy to take this one. I think that what the Supreme Court has said is that unnecessary institutionalization is a form of segregation and that's very clearly prohibited by the law. It's prohibited by the ADA; it's prohibited by section 504. And the Supreme Court has set forth its analysis of how you cabin that in terms of what rare instances, institutionalization may be permitted under the law.
But what is required is provide services in the most integrated setting.
And that's a very longstanding obligation.
It is one that many states, including some of the states on this brief, supported in the Olmstead case and that is a value that I think is more broadly held and understood and many of the ways that they are characterizing it are very false and misleading. And they are skilled in doing a lot of dancing around the basic facts that they're stating.
For example, saying well what we're really challenging is the use of any federal funds to enforce 504 that aren't specifically 504 funds.
Well there are very, very few funds that are specifically 504 funds. So that would completely derail the law the way it has always been understood and applied and would impact the rights of people to not be shut away in an institution and locked away from their communities when they are capable of and want to live in the community.
Which are pieces of that puzzle that the Court laid out in Olmstead.
But if someone wants community-based services and they can live successfully in their community, which, from our experience is almost everybody, then they have a right to that. And some of these arguments about financial costs and things are just not borne out by the evidence.
It is not more expensive to provide services in the community than in an institution. Institutions are incredibly expensive to run and operate.
They're not more effective.
And they are doing a lot of good hand waving to mislead the public about what they are doing.
AMY ROBERTSON: I think it's cool that two people are focusing so hard on Olmstead in college and thank you very much for that.
(Applause)
ROBERT DINERSTEIN: And it's interesting. It's one of my pet peeves so I'll use this opportunity to talk about. The reliance or reference to Justice Kennedy's concurrence in Olmstead, which I think is what you're referring to in the Becerra case.
That comes out of U.S. v. Mississippi in a decision by Judge Jones Edith Jones who is a very conservative judge. In the course of overturning a decision, she was trying to understand or she presented her interpretation of Olmstead. And what she said was, well, because the Olmstead decision was only decided by a plurality or the lead opinion by justice Ginsburg.
We have to look to the opinion that gave it the authority of the Court's decision.
We look to Justice Kennedy's concurrence. And Justice Kennedy said a number of things, which I would I'll call it the category of paternalist dicta.
Seemingly concerned but I think misplaced. The fact is the concurrence did not provide the critical fifth vote.
The critical fifth vote was provided by justice Stevens.
Justice Stevens said I would have simply affirmed the 11th circuit decisions.
The other four justices think it needs to be remanded to make sure there's no fundamental alteration defense so for purposes of the ruling I will join them. That's the critical decision, if you will, not Justice Kennedys.
So I think you had learned in law school, I think it's a first-year law school type of mistake that she made, that her clerks made, that other judges who joined her made.
Now it's the law of the fourth circuit which is where Texas v. Becerra is, so you can't just ignore it. It's inconsistent with other interpretations, but it maybe suggests a certain tangentialness when courts interpret that their own purposes.
But it really misreads almost a basic fact in the case.
MEGAN SCHULLER: And important that decision was also limited to the question whether people who are at risk of serious institutionalization are covered as opposed to people who are currently and actually institutionalized. It is very much an outlier opinion amongst the circuit courts saying that that may not be true, but what's happening in Texas from Becerra is using that question of where do you draw the line of at serious risk to then attack the concept of people being segregated and institutionalized unnecessarily.
And it's an example of tactics that they're using that we need to be aware of, and again, I'll plug that at-risk Olmstead panel for thoughts and strategies on how we need to be careful so as not to roll back broader rights in terms of making sure we have the strongest evidence and clearly defined what we mean by at serious risk.
But they're trying to roll back people's rights by decades in ways that have long been well-understood as just extremely discriminatory and a way of shutting people with disabilities away and out of sight and out of mind.
ATTENDEE: One quick point you had raised something about class actions. I think unfortunately disability work is under attack from multiple perspectives. Standing and class actions are two non direct ways in which our cases are being really compromised. And there is some amazing like crazy decisions coming out of the sixth circuit, one where the sixth circuit was trying to -- it's a car defect case.
But they basically are saying we should do away with the cold commonality rule. You should basically have commonality.
You have to prove that no reasonable juror would never have found this common.
That's a whole other way of attacking the way that disability work is going. And I think that we have to -- again, this is part of my plug for trying to figure out how do we compile somewhere a repository of this information. I know Sam has done a brilliant job at Michigan with all the disability related things but maybe bee need to stand up. We're not afraid of people seeing these things.
We need a briefing bank and I think that would help people.
Especially people who aren't as family with doing these cases.
ATTENDEE: Hi, my name is Charlie. I’m from Access Living in Chicago. And this question may not be fair for this panel and my real name may be Chicken Little.
But Loper Bright in my mind, everything you guys have said, makes perfect sense to me as a litigator, but I also do policy work. And I worry that it's just a piece of the sky that is falling and the larger disability protections that, in my community, we've always turned to the federal government to protect, are no longer reliably protected in the federal government. And my community is basically looking at the lawyers to tell them when do we turn to the states?
When do we protect our rights in our state laws not at a federal level and I'm wondering if you guys are interested in responding to that.
AMY ROBERTSON: I'm lucky to be from Colorado and we have very, very strong state laws, state antidiscrimination laws, specifically laws that protect people with disabilities. And I think if you can, if you're in a state that's friendly to such a thing, this is definitely a time to work with your state legislatures to try to strengthen laws, potentially bring cases in friendly state jurisdictions.
But I also think this is -- in terms of enforcing rights, this is a time also for the nonprofit and private bar to step up, big time.
Because candidly, with all due respect, we've never really been able to count on the DOJ to necessarily bring cases. They've filed some great amicus briefs and statements of interest and have brought some cases, but fundamentally I'm biased here I guess, but we have to look to private attorneys and private attorneys and nonprofits to step up and bring impact cases and keep the law moving forward while we wait for a new and better administration.
And I also want to put in a very long distance plug, we need to start thinking about 2028. Because these guys came in and did a lot of damage right out of the gate and we have to be ready in early 2029 to start fixing things right away so we don't end up as we just saw having the final rule and a bunch of regulations coming out in the December after the election. So I think while we're mourning and fighting and playing offense and defense, we also need to be preparing for 2029.
MEGAN SCHULLER: I will say I think while we have said there's many ways to defend our regs despite the analysis of Loper Bright, I think the sky is falling. I don't think it necessarily is because of Loper Bright for 504 regs or ADA regs, but there's huge challenges and I think we have to be really strategic and thoughtful in the cases we bring, where we bring them, and definitely considering bringing cases in state courts using helpful state laws.
And also that litigation is not the only tool in the box. And I think many of our organizations also do policy work and grassroots work. And you know one thing we were interested in hearing for folks on too any folks living in the 17 states, in Texas, and what advocacy strategies you're seeing used and what might be effective.
And I’m so happy to also pitch that.
But yeah. It's certainly something we've started doing is looking at and considering more heavily when we should bring a claim under state law instead of federal law.
KATHRYN RUCKER: This is Kathryn. I'll just add one other comment since you referenced policy and I think the writing has been on the wall about this for a few years because of these cases from the Supreme Court.
But this is also a big issue for our legislatures, both federally and in other places.
But just talking about, you know, our Congress for a moment. It was already hard to reach consensus to do rule-making and a lot of the authority delegated to agencies to fill in the gap was in part because agencies had that expertise, but also because our Congressional leaders couldn't always reach consensus on some of those details.
So this landscape makes law-making a lot harder, and it also makes it even more important for us to be working with our representatives and senators to say here's what should be in a bill about federal agency authority, express delegation.
This is what we want to be supporting when regulations are issued around the comment process. You can already see in some of the rule-making that happened at the end of last year the department of labor's rule-making around subminimum wage. I had never read a record that was that thorough on issues of agency authority, statutory authority delegation.
And I think we need to be seeing more of that from the agencies and we need to be commenting on those proposed regulations and supporting those arguments so that there is a robust administrative record that we can defend later on.
MEGAN SCHULLER: On this state point, I also want to mention state AGs. We've already seeing a bunch of them stanchion up and filing lawsuits, pushing back on overreach and discrimination by the administration. I think also folks can file complaints if they're in a state that as a good civil rights law if they're in a state that values civil rights, file administrative complaints with them as well as bring their own cases.
Often they need complaints to know where they should be focusing their energies and how to use their limited resources and I think that's something people definitely should be doing.
ATTENDEE: This is Marisa again, hi. I love the higher level conversation but I am a next-step kind of gal. So I wanted to circle back to Kelly's points about coordinating. And I wonder if, you know, obviously we have the disability rights bar association, whether there can be infrastructure through there and obviously there's the website where folks can put all of their sample documents and stuff like that, if we can have a folder there, that focuses specifically on the Loper Bright issues and also going back to Bob's point not just about coordination in the Courtroom, but also outside of the Courtroom and how we support nonlawyers as well in this fight.
I would love to drill down on that.
AMY ROBERTSON: This is Amy. I want to put in a plug for the University of Michigan and it's called -- there's a clearingHouse and it's run actually by I think Sam's wife Margot and it's a general civil rights clearingHouse. It's clearingHouse.net. And I don't think there's any limit, as long as a case is a civil rights case, you can send it to them, send them the pleadings and they have certain -- they have a Trump Administration challenging focus. Traditionally they've had a very strong focus on prisoner's rights.
But they have -- any kind of case that we've been working on in the ADA context, if we send them the pleadings, it becomes part of the clearingHouse.
I think, I don't want to volunteer Margo and her students, but I think that could be a platform that's already -- has an amazing sort of technological platform, be and I think that could be a great resource for us to -- if we all get together and decide that's where we're going to send our cases and briefs and decisions and so on. I think that can continue to be a great resource.
MEGAN SCHULLER: This is Megan. I so appreciate that question, because I have always been like, okay. What are we doing and how does this look in the real world person.
I think another helpful resource is that democracy forward is doing this tracking, but it's imperfect. So if people can tell us when they get a Loper Bright challenge, or tell them directly, we can pass it along to Democracy Forward or you can pass it to us to try to coordinate with them to make sure we're not missing any.
I also think there are a bunch of different coalitions and it's something I've been thinking about a lot is, there's all these meetings for all these coalitions and how do we use them strategically and some are policy focused and some are litigation focused. I think all of those places are still really good places for people to exchange information, whichever ones people might be involved in, whether it's sort of the broader civil rights ones, the coalition for constituents with disabilities, as a way of just flagging and sharing information.
But I think honestly we really need to keep thinking and talking about what's the best way to make sure, particularly on litigation, which isn't always captured in those that we're coordinating and talking to each other.
But then also like the plain language resources on the comms front, I frankly feel like there's a real challenge. There's some folks here who are fantastic at it and I think we need to lean on each other's strengths.
Because I think they have a really powerful and effective comms machine and it's something that we've been trying to think about too, who we could maybe reach out to that has the strengths and power there.
Because obviously like Bazelon for example, it is tiny and we don't have anybody that does comms exclusively. So I do think it needs to be -- also thinking about where can we support each other and make sure that we're looping people in.
ATTENDEE: Hi, I'm Sam also from AARP Foundation. First of all I wanted to put in a plug for the impact fund for folks who are less familiar. It's a nonprofit based out of the Bay that focuses exclusively on plaintiff side impact litigation. So their list serve and their conferences are a wellspring of information in terms of staying on top of things like standing and class actions other things that aren't quite as disability narrow in terms of focus but they obviously cover a lot of disability stuff too.
If people aren't familiar with their work, it's wonderful and rad.
My actual question, Amy, I think the statutory delegation argument is super interesting in Loper Bright.
I'm curious have you seen that unpacked anywhere in terms of briefing and if that briefing has been successful.
Not really post-Loper Bright, not successful or unsuccessful.
We haven't really seen Loper Bright bubble up terribly much, especially in Title II or Title III cases. There was one good Title I case where the delegation language in Title I that is similar to Title II was held to be a delegation under Loper Bright and I cite that in the article. I can't cite it off the top of my head.
But we haven't seen the case develop that significantly in this context.
I think our time is up. I'm happy to chat afterwards but I think we should let you all go have lunch.
(Applause)
SANHO STEELE-LOUCHART: Hello! For those of you who are in the side of Members Hall with the stage, we are going to begin the presentation momentarily.
Now, for those of you who are in the lunch area, we understand that there's been a delay and that not everyone has eaten. So I would request that people feel free to stay and eat their lunch if need be on that other side.
However, if we could keep the volume to a minimum over there, so that way everyone can hear the presentation, that would be helpful.
Now, our panelists, are we all over here on the side of Members Hall with the stage? So we'll be getting starting in just a moment.
Thank you for your patience.
We are paging Cory Bernstein when you get a moment.
Cory Bernstein to the stage, please.
All right.
As we are waiting for our final panelist we'll go ahead and get started here.
I did want to say thank you all for a wonderful lunch and thank you to the staff who made that happen.
Now, we do have one additional piece of Housekeeping that didn't come up earlier.
For those of you who like social media, we have a hashtag campaign, spread the word.
We would love it if you were to go ahead and use the hashtag all over the place, that is #jtblaw. Like Jacobus tenBroek law. And then we will get our panelists started in just a couple of minutes. They had a couple of logistics to attend to on their own.
All right.