A Broader Role for the ADA in a Post-Pandemic World

KATHY MARTINEZ:  Hello.  Hi. This is Kathy Martinez.  And I don't know if -- I'm blind so I can't tell if anybody else is on the screen.

PILAR GONZALEZ MORALES:  Hi, Kathy.  I'm Pilar Gonzalez Morales.  I'm one of the presenters.  Nice to meet you.  And yes, the other panelists are here as well as the ASL interpreter.  And also a bunch of other people, 43 other people.

KATHY MARTINEZ:  Oh, good!  Well, that's good.  I don't know -- I know it's almost time to begin.  Now, is my screen relatively okay?

PILAR GONZALEZ MORALES:  It looks great.  You're perfectly centered.

KATHY MARTINEZ:  Okay.  Well, thank you.  I guess I can get started, then.  Is that right?

LOU ANN BLAKE:  Hi, Kathy.  This is Lou Ann.  I'll be introducing you.

KATHY MARTINEZ:  It is 5:00.  It sounds like we have a bigger audience than I thought.

LOU ANN BLAKE:  I was hoping -- well, it's slowly building.

KATHY MARTINEZ:  I'll follow your lead.

LOU ANN BLAKE:  All right.  Good afternoon, everybody.  Welcome back to the final plenary session of our 2022 Jacobus tenBroek Disability Law Symposium.

I think we're going to be ending on a really appropriate topic, and that is "A Broader Role for the ADA in a Post-Pandemic World."  To help us kick this panel off, we have a very special person, Kathy Martinez, who is President and CEO of Disability Rights Advocates, and previously she was senior Vice President for accessibility and disability at Disability Strategy for Wells Fargo, and she was Assistant Secretary of Labor in the Office of Disability Employment Policy under the Obama Administration.

So please join us in welcoming Kathy Martinez.

Kathy Martinez: Thanks, Lou Ann.  And thanks to the tenBroek organizers for giving me this opportunity to introduce this amazing panel.  I have a little fan girl thing going on here with all these folks.

I am thrilled, and like I said, to be here.  It seems like our audience is building.

I will confess to not being a lawyer, but I do have the privilege of leading one of the people are eminent disability rights law firms in the country, Disability Rights Advocates.  I've been there for a year.  It's been a really amazing year.  I've learned a ton as a nonlawyer.

Anyway, I'm super proud of our high impact litigation that we do.  DRA has been around for almost 30 years, and just want to say, because of the collaboration between DRA and some of the folks on this panel, namely Pilar and Prianka, we've really been able to broaden the scope of our impact and help represent more people with disabilities, especially folks of color.  And we work together with Pilar and Prianka on immigration issues.  We've worked with other folks on policy, police abuse, and education.  So thank you guys for your partnership in helping strengthen DRA.

Well, I'm super excited because today we get to discuss a law that was passed 32 years ago which is really ancient in like law history and statutes.  In many ways the Americans with Disabilities Act in my mind no longer reflects how business is done in this country or in the world.  And while the courts have interpreted the law, the regs obviously have not caught up.  So 32 years into this law, we're having discussions about whether products and services taken for granted by nondisabled people are even covered by the ADA.  So do we continue to litigate?  Or do we go to Congress for a refresh?  And also despite the recognition, when the law was being framed, there was so much discrimination or so much benign discrimination playing a huge role in the historical exclusion of people with disabilities, benign neglect or unintentional discrimination continues to put disabled people at a disadvantage.  And I guess one positive result of both CVS and the L.A. community college district cases, it's really galvanized the community into successfully challenging them.  

Oh, I just got a text.  I did not describe myself.  Sorry.  I am a Latinx woman in my 60s.  I am blind.  I have a red sweater on.  I'm a little uncomfortable leading over Zoom but getting over it.  2 years of doing this should make me more comfortable, but it's a work in progress.

So thank you for the reminder, friend in the text blogosphere.

So now I get to introduce this esteemed panel.  I guess I'll start, we have Shirley Lin, who is assistant professor of law at the Elisabeth Haub School at Pace.  We have Pilar Gonzalez Morales who is the director of the accessibility project at civil rights and enforcement center.  We have Prianka Nair, assistant professor of clinical law -- oh, dear, I can't read this.  Codirector of disability and civil rights clinic Brooklyn Law School.  And last but most certainly not least, Britney Wilson, associate professor of law, director of civil rights and disability justice.

I guess we'll go in that order.  Hopefully we'll have time for some questions.  I certainly have a few.

Shirley, we'll start with you.

PILAR GONZALEZ MORALES:  Hi, Kathy.  We actually had a little bit of an intro to the panel, just to let people know how the next 90 minutes will go.  So I'll intro that really quickly.

KATHY MARTINEZ:  Yes, please.

PILAR GONZALEZ MORALES:  And thank you for that introduction.

So like Kathy said, my name is Pilar Gonzalez Morales.  I'm the director of the accessibility program at the civil rights education and enforcement center.  I am a light skinned Latinx woman with wavy hair, sitting in my living room with some bookshelves and artwork in the background.  I hope everybody has enjoyed the conference so far, and thank you for joining us.

So over the next 90 minutes, you will hear a brief individual presentation from each of our panelists, which will last until around 5:30 Eastern Time, and then we will have a roundtable set up with different questions for panelists that will last around 40 minutes.  And then we're hoping that the last 15 minutes of the presentation will be devoted for questions from the audience.  And we ask you that if you can, to type those into the chat, but otherwise feel free to raise your hand and ask the at end of the panel.

So the purpose of our panel is to explore the different ways in which the COVID-19 pandemic has both uncovered ableism and disability discrimination that underpins our society, including in our legal system and the framework of accommodation.

But also to highlight the opportunities and efforts that the pandemic has opened up to think more broadly not just about disability rights but about disability justice.  One example that comes to mind is prior to March 2020, most places of work had refused to allow staff and workers to work remotely.  In many cases, such requests were denied under the ADA's accommodation framework.  Institutions and employers could cite fundamental alterations or undue burden as reasons to deny this as an accommodation.  However, by April 2020, millions of workers had switched to working from home set ups.  So what employers had denied and deemed impossible for people with disabilities now became the norm for many sectors of our workforce.
In the workforce litigation and advocacy efforts during the pandemic in areas as diverse as jails, detention centers, higher education, or emergency preparedness, they have all shown us how much or how little we can accomplish through the use of the ADA.  The interconnectedness of race and disability and who gets to benefit from the framework of disability rights is also clear when we look at this different spaces and the types of litigation and advocacy is succeeded during the pandemic.

So our four panelists will be discussing all these issues.

Now let me turn it over to our first speaker, Shirley Lin.

SHIRLEY LIN:  Thank you so much, Pilar and also Kathy and my colleagues on this panel who have put in so much time and thoughtfulness leading to this discussion.

As Pilar mentioned, the pandemic has completely inverted the understanding among the general public of what rights we can achieve through accommodations and what would be considered a collective accommodation.  So one of the frameworks I'm hoping to I guess introduce at the end of this conference is the idea of mass accommodations.  The pandemic of course has generated tens of millions of conversations about well-being and environmental safety in institutions, and it has been under disability just as a framework that has been familiar to people with disabilities and experts, but what was of course considered outside the realm of the possible became possible very quickly.

One of the things that I think will be a theme in our conversation today is how disability justice and accommodations in particular is a substantive and affirmative right.  One of the few affirmative rights that remain in our civil rights toolbox here.  So accommodations law did open up opportunities and provide a framework for large institutions and other spaces to think about maybe preventive or holistically inclusive environments going forward.  And for a few years it brought us closer to the idea of how we can innovate and bring us closer to universal access in non-cost prohibitive ways.  So I'll focus on two major public comments, the workplace and education.  And my copanelist Britney Wilson will be discussing the medical environment.  And my colleagues Pilar and Prianka will be looking at detention and criminal incarceration.
The important aspect of the interactive process that Kathy alluded to is something I wrote about in Bargaining for Integration just published in NYU Law Review.  It discusses how disability rights advocates, even members of Congress, would not have imagined that the ADA did not make as much headway in the workplace as we wouldn't have expected in three decades.  And part of it I argue is there are private precedents.  You demand institutional claims by claiming to be disabled, and if you do successfully change the policies, the environment, the physical space, it becomes private.  It remains private more or less unless you're affiliated with disability rights networks.  But we wonder if during the pandemic where everyone has gone through massive structural change, or some structural change in a short period and all together, whether we have actually entered a new normative opportunity to talk about accommodations across populations.

Under this traditional view prepandemic, we have a compliance model of the ADA.  What our panelists will hopefully point to are models for a greater affirmative access for all individuals.  The workplace and the classroom are highly individualized contexts.  This is classic American liberalism, the idea that we have individual rights and that equality and inclusion while normally now framed as formal equality could in some instances involve affirmative responsibilities by the other employer.  So the ADA and the Rehabilitation Act was actually more close to the disparate impact theory of social responsibility we got from that 1971 Supreme Court case Griggs versus Due Power and not the formal equality, no one treated better than anyone else regime that we're still grappling with as a society.

But the other aspect of that is under this individualized model that came out from the 1990s, ADA accommodations were not really successful in terms of class-wide proof because of the sheer diversity or level of documentation required to try to engage in broader institutional change on behalf of individuals with similar disabilities but also speaking to individuals with the same classification of disability, for example, visual impairment.

So the courts, as we know, favored group-based remediation through the court such as of course Roe versus Disparate Impact.

I want to note we can't conceptualize disability and disability justice without understanding that it's all the same piece with racial hierarchy.  We saw the staggering racial and social disparities as to who was infected during this pandemic, which workers were granted accommodations from in-person interaction, but we also think about the fact that workers must become familiar with this medicalized model of documenting and trying to raise and prove that accommodations are not costly, they don't cause an undue burden, and whether they're reasonable or not.  And of course the outcomes vary for people of color and people with disabilities.

So one of the areas I'm focusing on as a source of optimism in the pandemic for mass accommodations is the union organizing by public schoolteachers during COVID.  This is a rare instant of bargaining amongst the workers, the institutional employers, and government during the pandemic.  This organizing has been a crucial example not just because public schoolteachers are the largest remaining industry that's unionized, but because their collective bargaining model has allowed us to get accommodations that advance the collective public good, the students, the public as a whole, and of course then the public health outcomes for the community in the spread of the pandemic.  But we're focusing on accommodations.

So one example I've come across of course is the 2020 an memorandum of understanding when accommodations to staff could be extended without the ADA.  And they also allowed remote work protections for teachers and staff with household members at high risk of serious illness from COVID-19, again going beyond the ADA.

Of course those frameworks that the ADA provided were the floor in these negotiations.  Just really astounding as a former employment lawyer.

In New York City, they could offer work outside of school buildings to everyone who is immunocompromised. A broad array of disabilities and conditions.  And pretty much provided en masse.

A teachers union was allowed to include school mask mandates as a condition of employment.  Although the CDC recently backpedaled on indoor mask wearing and mandates were lifted, the teachers unions are litigating it because it is in their contract.  So an interesting use of private law to protect public health.

There's also a teacher's union in West Virginia that asked the state Board of Education for a mental health break at their statewide Board of Education meeting last December because of the toll on teachers collectively.  And this is, again, an instance where collective advocacy around accommodations allows us to get outside the individualized model.

Pilar, can you not your head if we have 10 minutes?  I believe I'm coming up on my 10 minutes for remarks.  And I can save some of the instances of higher education accommodations in the Q&A.

BRITNEY WILSON:  So I will transition to my topic.  Good evening, everyone.  Thank you for taking time out of your Friday afternoon to listen to us.  The topic of my conversation is going to be disability discrimination in the context of public health, specifically the framing of disability discrimination as an emergency preparedness issue.

My background is in federal civil rights litigation, so this is actually my first year as a professor, so this professor thing is new to me.  This is my very first year.  So I'm going to talk about a case that we are currently litigating in the clinic that fits this topic.

So during the course of this pandemic, we've heard a lot about crisis standards of care, the documents that states often put together that determine who gets access to lifesaving treatment and equipment, when those resources are scarce.  You've probably also heard the disability community has been frightened by those crisis standards of care because many of them are discriminatory and include blatant language that contemplates taking away equipment from or not giving treatment to people with disabilities.  And I'm sure I know who else has spoken during the symposium today so I'm sure you've heard about that and the advocacy the disability community as a whole has done around that.  There have been a lot of federal administrative complaints that have been filed to address these crisis standards of care.  Many states have addressed them.  New York, where I live and where I'm from and where I work, was also one of those places where a federal administrative complaint was filed to challenge New York's crisis standards of care.  The Department of Health ventilator allocation guidelines.  But unfortunately New York was not a state that chose to amend their guidelines through the administrative process.  So we sued.  And by we, I mean my clinic and also my cocounsel at Disability Rights New York.

Specifically we filed a lawsuit challenging the New York State Department of Health ventilator allocation guidelines on behalf of current ventilator users so people with disabilities who use ventilators in their daily lives to breathe.  We challenged a portion of the guidelines that allows for personal ventilators of chronic ventilator users to be reallocated taken from them if they enter a hospital during a time of triage and reallocated to a person deemed to have a, quote/unquote, higher likelihood of survival based on a mechanical score, organ failure assessment score.  Because there's a bunch of lawyers on this call, you can probably imagine that was a difficult challenge to bring because we weren't alleging that people's ventilators had been taken.  We're alleging that the policy that their ventilators could be taken is in itself discriminatory.  That the users were afraid of these policies and were afraid to seek healthcare during the pandemic because of the existence of these policies.

So we framed this complaint knowing that we were going to have the uphill battle of, well, we didn't take anyone's ventilators.  So I can hear all the lawyers, well what's the injury!  What's the injury!  The injury is the deprivation of a nondiscriminatory emergency preparedness plan.  That having a plan that the state puts together that actively contemplates on its face taking away the personal equipment of people with disabilities is a violation under the ADA.  That that lack of a nondiscriminatory emergency prepared plan is an injury. And we actually built that argument off of a case, Brooklyn Center for Independence of the Disabled versus Bloomberg, a more traditional emergency preparedness case that came about after Hurricane Irene where the court said, for example, if you have shelters or fixtures like these that exist in the midst that people have to use in the midst of natural disasters and they are not accessible, that's a discriminatory emergency preparedness plan.  So that's a physical concrete emergency preparedness plan.  And we argued that in our context, the crisis standards of care are another type of emergency preparedness plan and that because on their face they discriminate against people with disabilities, that people with disabilities are being deprived of a nondiscriminatory emergency preparedness plan.

And so in the context of talking about the expansiveness of the ADA and pushing the ADA forward, that's what we tried to do in this case.  And surprise surprise, it was dismissed and the court said, well, we didn't take anyone's vents, essentially.  So we are in the process of appealing that decision to the United States Court of Appeals for the second circuit because quite frankly we don't think you should have to wait to have your ventilator taken in order to challenge a policy like this because our clients would be dead.  And this is an example of how we are trying to get the court to understand that the ADA is more expansive than just, but did you die, though, in terms of its injury analysis.

So that is one example of how we're trying to push the ADA forward.  This is a panel where we're talking about disability justice, and so I want to talk about the implications for racial justice.  I know that a bunch of disability advocates put together a report about crisis standards of care that talked about sort of the intersectional implications of these documents, and it basically suggests that disability discrimination is only one identity of course that people experience.  And I just remembered that I didn't describe myself.  I'll do that.  I'm sorry.  But disability discrimination is only one form of discrimination that people experience. There's also gender discrimination, racial discrimination, and every other type of discrimination.  But I think what that report did not necessarily acknowledge that I've seen in other spaces is that actually the frameworks that we use like SOFA to determine who gets access to what equipment actually have structural racism baked into them.  Dorothy Roberts, for example, the professor, wrote an article where she talked about the figures or the function of underlying organs that SOFA scoring depends on, like the function of your heart, lungs, kidneys, one of the ways they measure those, for example, I'll take the kidneys, is they measure the amount of creatinine in your bloodstream.  And the report says that Black people, for example, are more likely to have higher levels of creatinine in their bloodstream so the SOFA doesn't take racial disparities like that into account.  And of course there are structural and social reasons for these differences in the levels because people of color are more likely to have kidney disease because of lack of access to healthcare and what have you.  So this to me is an example of the limitations of disability rights framework or a litigation, if you will, because even as we try to get the court to recognize the expansiveness of the ADA and the need for an emergency preparedness plan or public health plan that doesn't discriminate against people with disabilities, we're simultaneously not really quite able to address the way that crisis standards of care may lead to multifaceted discrimination.

I will stop here only because I know that these are things that we'll discuss further when we have our Q&A with one another, and I will pass it along to Pilar.

PILAR GONZALEZ MORALES:  Thank you, Britney.

I'm going to be speaking about immigration and detention and specifically preliminary injunction that was granted during the pandemic.

Immigration detention and other carceral settings really highlights the tensions between the ADA and Section 504 disability rights framework and broader calls to dismantle ableism and achieve disability justice. In other carceral settings, ADA litigation often focuses on conditions litigation.  In a way what we're asking is to improve the way in which people are caged.  So what does it mean to receive an accommodation in an institution, an immigration jail, whose entire purpose is to restrict movement and freedom, and that is so deeply tied to white supremacy and racism.

This is something our team grappled with during the litigation during the pandemic.

To backtrack, we had a class action lawsuit against ICE which encompasses its national network of immigration jails.  The main case was filed back in 2019, and it includes claims for failure to provide medical and mental healthcare, discriminatory and punitive use of segregation and disability discrimination.  In February 2020 plaintiffs had a motion to dismiss.  By March of 2020, serious concerns rose about the safety of people in carceral settings in light of the spread of COVID-19.

There's a putative class that includes people with disabilities and as more and more information came out about the dangers of COVID-19 for people with different disabilities and medical conditions, the litigation team decided to file preliminary injunction.

We have to confront various obstacles and skepticism, both within immigration and disability rights legal world.  It became incredibly important for our team to fight for release.  We knew this was risky because it would be seen as an attempt to circumvent the immigration court system.  However, the threat to life, health, and well-being of our class members really opened up the eyes of the team to go beyond asking for improved conditions such as PPE, testing, or social distancing, which we did ask for but we really realized that the way to keep our class members, the rest of the detention population, and the broader community safe, was to ask for release.

Some of the concerns when the team decided to file a PI requesting release were whether disability class should be the focus as opposed to other types of litigation that were asking for a certain percentage of the overall population to be released.  We felt that population reductions would not provide sufficient protections for the elderly, for people with disabilities, or medical conditions, but the team in general supported those facility-specific cases as another way to liberate more people from detention.

Whether they would foreclose or preclude other avenues of release, such as the mass habeas that would focus on disability and anal class and it wasn't really a habeas petition but part of a broader civil lawsuit, so therefore we felt having both open and in fact they did.

Lastly, there were concerns about using the ADA and 504 framework outside the typical conditions cases, and really that's, to that concern, that's where I think that having an abolitionist framework and perspective and really daring to dream bigger and envisioning a freer world really push our team to ask for release.
So now 2 years later into the PI, over 25,000 people have been liberated from ICE jails under the PI.  Unfortunately this year the ninth circuit through a panel that consisted of two Trump employees ruled against the cases and PI.  The PI does remain in effect because we're in ongoing negotiations with the government; however, this decision highlights the ways in which highly racialized settings have only received limited relief due to the pandemic.  So while many white collar work spaces have committed to working from home or continuing other types of COVID safeguards, we see all across the country PIs that were hard fought for in detention centers, jails, and prisons are now being rolled back.

So because of this I think one of the most important lessons that I've learned from the Fraihat litigation and PI is the importance to push through abolition demands.  The so release, unlike other demands, cannot be rolled back to people who have been released.  They were released and that cannot be taken away.
And also to really understand the limits of the law and the court system and to create spaces with other types of advocacy and activism.

I think I'm okay on time.  I will pass it on to Prianka next.

PRIANKA NAIR:  Hello, everyone.  It's really good to see you all.  And thank you, really, for making time for this on a Friday afternoon just before a weekend.  We know we are the only things keeping you from a weekend am.

Just to describe myself, I am a south Asian woman with long black hair that is also going gray although I'm not sure you can see it.  Yet.  Wearing glasses and yeah.  I think that's it.

So I wanted to focus the conversation on jails and prisons and where the use of the ADA, the effectiveness of the ADA has been disappointing, to say the least.  And this is a place where maybe there is the broader role for the ADA has been curtailed by interpretation of the ADA and Section 504 of the Rehabilitation Act.
So it became apparent at the very beginning of the pandemic that the mass incarceration of people in jails and prisons would permit the rapid rise of COVID-19 both within the facilities themselves as well as to the communities surrounding them.  The pandemic initially reignited conversations about the value and purpose of incarceration and about what decarceration would look like.  And on occasion this promulgated legislative and policy changes on both the state and federal level.  So jail administrators in Ohio, California, Colorado, Alabama, and New Jersey actually concluded that widespread jail release was a necessary and appropriate public health intervention.  On a federal level, on March 27, 2020, the CARES Act was signed into law, making funding available for federal correctional facilities to purchase personal protective equipment and test kits for COVID-19.  And Attorney General bar declared on April 3rd 2020 that emergency conditions were materially affecting the functioning of the bureau of prisons and directed the director to review the people with COVID-19 risk factors and determine their eligibility for home confinement.

Despite these steps, the move towards decarceration has been limited and patchy, particularly with respect to prison populations.  Moderate drops in prison populations in 2020 were actually the result of fewer admissions than releases, and, indeed, most parole boards granted fewer in 2020 than 2019.

In response to the CARES Act, the BOP imposed impractical barriers that really had the effect of limiting the number of people who would qualify for home confinement.  For example, they said the individual must have zero infractions of any kind which would be difficult if you're a person with a disability attempting to navigate the complex and myriad rules of prisons and jails.

At this juncture, I just wanted to pivot to looking at how ADA claims have been treated by courts.  It was quickly acknowledged by medical experts that people with coexisting medical conditions were at a heightened risk of contracting COVID-19 and suffering significant complications.  The CDC actually issued guidelines that required social distancing, alcohol-based hand sanitizer, and PPE in congregate settings like prisons, and many groups mobilized to bring ADA claims on behalf of honorable incarcerated people with disabilities.

So I reviewed cases where injunctive relief was denied in litigation at the outset of the pandemic, and many claims were based in the ADA or Section 504, and a theme that frequently raised its head was deference to prison administration.  And as Professor Sharon Dolovich has noted, deference is a catch all justification for curtailing both the burden on prison officials to ensure constitutional prisons and prisoners' prospects for recovery even for meritorious claims.  That certainly proved itself true in the cases that I reviewed.

This was best illustrated in Balentine v Texas which argued that they had failed to implement necessary or even adequate policies and reasonably modify its policies to accommodate incarcerated people with disabilities.  In fact, they adopted policies that covered only some of the guidance of the CDC and failed to implement many of their own policies.  The district court conducted a review of the unit and determined that it had significant concerns about the credibility of TDCJ's experts.  In essence what they did was take seriously the testimony provided by the people incarcerated and noted that unlike the experts, they were able to observe conditions in the unit on a daily basis.  It took seriously their argument that they were not able to socially distance, there were no discussions of early release, that they were not given access to tissues or toilet paper and sneezed into their hands, that isolation measures were not followed.  And so the district court issued a permanent injunction, but in response, on appeal, the fifth circuit staid that permanent injunction and argued that the prison put in place adequate policies.  It further indicated a concern that it would be engaging in impermissible micromanagement of state prisons.  It would put most forcefully by one judge who stated, this case hearkens back to the institutional reform litigation of yesteryear, back before the Prison Litigation Reform Act.  When federal supervision was normal.  It's not normal today.  Rather, this sort of federal court intervention is unlawful and imposes grave costs that should be avoid and not celebrated.
The decision was appealed to the Supreme Court which denied the application to vacate the stay, but one justice wrote a statement in dissent noting that the district court had based its decision based on careful finding of the live testimony and the court's own visit to the unit.  The standard for reversal is very high, it requires a showing that the lower court was clearly wrong.  But they failed to address all of the findings, including the fact that the prison had failed to follow its own rules inexplicably and argued that the fifth circuit acted out of its authority in refusing to defer to those findings.

Another pattern that I observed is that courts have repeatedly treated reasonable accommodation claims and disparate impact claims as disparate treatment claims, not actual equality.  That is, courts have repeatedly dismissed claims brought by prisoners with disabilities on the basis that they have not been treated any differently than prisoners without disabilities.  And this is deeply disturbing because of course the very fact of disability means that an individual is at a heightened risk of contracting and suffering from the effects of COVID-19.  An example of this was the case of Harasser v Cuomo, an ADA claim, on behalf of medically comprised people who were transferred, crowded together on poorly ventilated buses, all mixed together eating in close quarters, they were not tested, and they were not screened, and the plaintiffs sought an order requiring Governor Cuomo to issue standard testing and quarantining and stop transfers until transfers could be conducted in accordance with public safety protocols.  The magistrate judge recommended the denial of the plaintiff's motion for preliminary junction, arguing that they had not failed to provide reasonable accommodations particularly in comparison to the accommodations offered to other prisons in other facilities.  And so it fell into a trap that had has fallen into before in other prison litigation.  Rather than recognizing this was a reasonable accommodations case or that people with disabilities are disproportionately burdened by certain methods of administration, the court simply appeared to treat this as a simple disparate treatment claim.

So in essence courts have shown themselves to be hostile to claims brought under the ADA and Section 504 and while it is disappointing, it is also unsurprising.  Prisons are places where disability, race, and gender discrimination all coalesce.  And that has become apparent during this pandemic.

I hope I haven't gone over time.  But I can talk a little bit more about settlements and what I observed there.

BRITNEY WILSON:  Thank you, Prianka.

Now we'll do a bit of a roundtable amongst ourselves to tease out some of the themes that we've all discussed.  I'm going to go back and do my visual description now because I forgot to do that.

I'm a Black woman with my hair pulled back into a ponytail, black hair, I also have on glasses, and I have on a black shirt and a brown striped blazer but I'm short so you probably can't see that on the screen.
So to kick off our roundtable, I'm going to pose a question to all of us, which is what does disability justice mean to you and to the work that you do and how does it compare to the ADA framework of accommodations?

I will start us off in order alphabetically by last name.  So Pilar, do you want to answer that first?


So when I think about disability justice, I often think of a quote that I'll paraphrase a little bit.  But that disability justice means that everybody and every body is unique and essential.  It means understanding that disability is racialized and gendered.  So disability justice encompasses the fight against ableism for sure, but it also should encompass the fight against racism and heteroism and patriarchy.

For me from a disability rights framework of accommodations, often asking people with disabilities to adjust to an ableist society, the disability rights framework comes from a very specific white cis male lens which affects how our laws are written, what is considered disability and an accommodation and so on.  So to me disability justice may at times include disability rights, but it goes beyond rights and focuses on liberation.


SHIRLEY LIN:  Thank you.  I'll start with a visual description since I did not provide one earlier.
I am a Chinese American woman in her 40s.  I have black hair, shoulder length.  I'm wearing a kind of light colored blazer with purple wire glasses.  And I have white hair that's been waiting a long time to grow so I won't be mistaken for 18.

So I wanted to thank Pilar for getting us started because I also share a view of disability justice as an analysis of power, one in which any of our characteristics are not a means for denying us equality, health, employment, integration in our community, and the ability to reach our full potential.  And I also include in disability justice the idea that it is collective.  Because it is collective, there is a governmental responsibility to facilitate dismantling ableism.  So I see disability justice as a means of achieving racial justice, class justice, gender justice, and of course being as flexible as possible as to how we find these solutions.

BRITNEY WILSON:  Thank you.  Prianka?

PRIANKA NAIR:  Yeah.  Disability justice espouses powerful principles for thinking about the institutions that shape the lives of people with disabilities.  I think it focuses on centering the voices of people who are frequently on the margins, and this would include people with disabilities who have been incarcerated.  And I think it's undeniable that those voices are shunted to the side when it comes to prison litigation.  Not somewhat.  Definitely.  So I think a disability justice approach, especially during this pandemic, in the context of incarceration, that centered the voices and found the value in the bodies, the disabled bodies of people who have been incarcerated would have yielded different results.  It would have resulted in decarceration, a recognition of more social support, and a recognition that interdependence is a reality for people with disabilities who are being released into their communities.  So yes, I think we should have -- I wish it was more part of the conversation when it comes to incarceration.


And for me, I think it's easiest for me to start off by talking about what I don't think it is, which is I think it has become, disability justice has become sort of a colloquial term in a lot of the disability advocacy community to mean disability plus diversity, which I don't think that is what it is.  Obviously disability justice is intended to include disabled people of color, queer disabled people, disabled people with multiple marginalized identities, but it is not just about representation.  It to me, and I can't talk about disability justice without speak the name of Patty Burn and Susan Valid who came up with the 10 principles for disability justice, but for me it is intended to be a response to a critique of a strategy around ableism and addressing ableism, and in this context defining ableism, I'm going to borrow TL Lewis' definition and say that it is the ranking and categorization of bodies and minds based on societal ideas of what is normal, what is productive, what is intelligent, and what have you.  And to me, if we think of ableism in those structural terms, then ableism would necessarily include racism, for example, because racism is another form of the categorization and classification of the ranking of bodies and minds.  I think the presentation, the talk that I just gave about crisis standards of care and the racial justice and disability justice implications sort of illustrates that.  So to me disability justice is about using more than just litigation and reframing how we address the structural effects of ableism as a whole.

PRIANKA NAIR:  I have a question for Britney and Shirley and of course Pilar if you do have an answer, please feel free to provide it.  And this is Prianka, by the way.

We often hear and see protected measures for people with disabilities, the chronically ill, people who are immunocompromised, being discussed as restrictions, for instance, mask mandates are COVID restrictions or burdens imposed on the larger population rather than as something that is positive and reaffirming.  So how do these perceptions affect the work being done in places of higher education, in hospitals, or in public health more broadly, and how do advocates battle this negative narrative?

BRITNEY WILSON:  I'll let someone else go first since I just...

SHIRLEY LIN:  Oh, no worries.  I can go first.

I wanted to highlight something that has been very clear during the controversies and debates in the pandemic that of course we associate with political polarization.  When we overuse or cede the idea of rights as something selfishly to be jealously guarded, it of course leaves us with a chaotic free for all.
And so what I had hoped and I think perhaps is not reflected in the media we consume is that we have emerged with a sense of interdependence between our public commons.  Schools, universities, workplaces, places of public transport and public accommodation.

And by allowing individuals who oppose measures of harm or measures that create hazard for people with disabilities and others quite frankly were given into this right versus counter right mindset.  It's oppositional, it's not doctrinal, but it clearly affects everything we consider a civil liberty.  And so I encourage us to think of other ideas.  We've already started with disability justice as the framework rather than accommodations, entitlements, or disability rights must mean something else, rights unfortunately has been of course a sword for so many.

BRITNEY WILSON:  Yeah.  I completely agree.

For me, I was thinking along the same lines.  If we're talking about disability justice, one of the literal principles is interdependence.  This idea that we all need one another.  What happens to one of us ultimately affects all of us, and I don't know if we could literally have a better example of what that means than living in the middle of a global pandemic.  You know, we have seen what it means to, what public health means in the literal context.  It's not just about the personal habits that you have and you live by, that you can pass things on to other people and that everybody doesn't have the same level of risk involved.  So I don't think we can change any narrative without people embracing and understanding that.  I don't know how well we're doing at that two years in and battles with people about that, but I think that's what we need to stress, that it's not about individual preferences and rights but it's that we all need one another and that what happens to one of us happens to all of us.

Shirley, you have the next question.

SHIRLEY LIN:  Let me bring in Prianka and Pilar in thinking about the framework of abolition that you referenced.  How could we think about abolition as a frame for advancing disability justice in carceral spaces?

PRIANKA NAIR:  Pilar, do you want to go?


PRIANKA NAIR:  Okay.  So you know, abolition is, as has been said eloquently, is a way of seeing the world.  A way of seeing and unseeing the world.  So rather than accepting ideas in a carceral context, ideas like crime and innocence, notions of freedom and inequality, abolition I think can be used to reassess and relook at the relationships that actually form the carceral system.  So the correctional communities, the legislative agendas that kind of shape why we incarcerate people.  The transnational corporations and their vested interest in keeping the prison industrial complex running.  And disability advocates have been using abolitionist ideas in this context to actually reimagine the treatment of incarcerated people with disabilities not just in terms of conditions of confinement, but actually arguing that you need to provide services in the community to someone with a disability because incarceration is itself too restrictive a setting and in violation of the Olmstead mandate, the integration mandate of the ADA.

So I think abolitionist ideas and abolitionism provides a very powerful lens to reexamine the systems that allow the incarceration of people with disabilities and the costs of doing so.  So that in short is kind of my view of what abolitionism adds to this debate.

PILAR GONZALEZ MORALES:  Thanks, Prianka.  That's so well said.

One thought to add to that, and I love that quote you used.  Social problems disappear human beings is another quote.  Freedom is a constant struggle.  We are reminded that the disability movement has in fact been abolitionist.  So the fights to liberate people from mental health institutions and other locked settings is in fact an abolitionist struggle.  So then I think what we need to ask is why stop there?  If we understand that caging those who are deemed mentally ill or people with developmental disabilities is wrong and ableist, and we as disability rights attorneys and advocates have spent a lot of resources, a lot of our time in fighting against institutionalization, then why do we find it okay to cage Black people, to cage brown people and indigenous people, to cage poor people and the unhoused?  

So I think what abolition brings to us is it has already helped the disability rights movement and that it can continue to help I think as you said, Prianka, by imagining, you know, alternatives and creating those alternatives.  If we dare to expand our vision beyond rights and into justice and liberation.

I will pass it on to Britney.  Thanks.

BRITNEY WILSON:  This is a question for all of us.  This is something we've been discussing all along.  But in view of disability justice, highlighting vulnerability as a general aspect of our society, in the midst of this pandemic, what are the racial justice implications for the analyses we've been discussing today?  I can go.  I won't do you first, Pilar, since you just spoke.  So maybe Shirley?

SHIRLEY LIN:  Thank you.

You know, I come from a critical race theory and organizational theory approach.  They agree in the ways in which when we are in collective, like institutions, certainly society, disability, race, class, gender, all of these get amplified once you bring people into an institution.  And so these systemic practices of course require systematic intervention.  So one of the studies that I highlighted recently is that white employees, for example, were three times as likely as Black employees to have someone like a manager affirmatively suggest they have an accommodation for their disability.  And of course identities are reflected in those specific ways in which people are marginalized or stereotyped, and that they face resistance to be integrated rather than continuing to be excluded from entities or collective.


PRIANKA NAIR:  Yeah.  I mean, in a carceral context or the jail and prison context, I feel like the argument is often made and you hear it in the media, for instance, that prisons are the new asylums and there is this argument that you deinstitutionalize people from congregate care settings like psychiatric hospitals, and now they're on the street and they're homeless and they get wrapped up in the system of crime and then they get incarcerated.

And it seems like there is a direct and easy line between deinstitutionalization from a psychiatric facility to incarceration in a jail or a prison.  But there is actually a lot of evidence that the population in these places are quite different.  Psychiatric hospitals and other facilities tend to have more of an elderly population, white, female.  Whereas prisons are predominantly made up of Black young men, people identify as male.  So the refusal by courts to accommodate this population, you cannot divorce that from the race and the disability discrimination.  I think it is very clearly apparent in a prison and jail context.

BRITNEY WILSON:  Definitely.  I'll go.  I'll respond and then you can go last, Pilar.

So I mean, I said this a little bit during my initial presentation, but even just seeing the limitations of litigation in terms of how you can bring an intersectional or racial justice analysis into, quote/unquote, disability rights litigation, for example, right, so we have this case, we're challenging the guidelines as being discriminatory against people with disabilities, but the actual mechanism or system that the guidelines rely upon might be discriminatory towards people of color just in the way that they're devised.  So you might have an instance where if we're able to fix the guidelines along disability lines, we still may not be able to fix it along racial justice lines.  The limitations of these approaches and lack of awareness for how the systems affect one another is just one concrete racial justice impact for our discussion today, but also I think I'm particularly interested in the vulnerability aspect of this question because something I talk about and write about a lot is that all vulnerability is not created equal.  Not everyone gets the opportunity to be viewed as disabled or vulnerable or sick or ill or in need of help or anything like that.  We know that, and something I didn't say in my visual description, again, shame on me, but I am disabled.  You can't -- I'm not used to that not being the first thing you see about me anymore with all of these Zoom calls.  I have CP.  I walk with arm crutches and I use an electronic scooter to get around.  But we know that being disabled does not have the same weight for everybody.  We know that, for example, disability and race also correlates often with perceptions of criminality, lack of intelligence, lack of productivity, laziness, every other stereotype that you can think of, right?  We know that women of color, women's pain is less likely to be believed and taken seriously when they claim to be sick or disabled or what have you.  So we know that people don't always get the same opportunity to be viewed as vulnerable when you take racial justice into account.  And I think that's something that's important for this discussion as well.

PILAR GONZALEZ MORALES:  Thanks, Britney.  I think that last point is so, so important and maybe something that we hadn't touched upon before, so thank you for raising it.

I would just add, you know, I obviously think that racial -- like how are they relevant to each other, like in racial justice and disability justice, I think in every way.  But to go back to the detention center system, we see that immigration centers or jails have a disproportionate number of people with disabilities and that the vast majority of the population in those jails are Latinx, Black, and brown people.  And then that the actual conditions of detention can exacerbate or even disable people.  So our approach to fighting for people with disabilities within immigration jails must take into account the racism inherent in the system, what kinds of immigrants are being jailed and held in immigration detention.

And also related to that, the racial, ethnic, and cultural identities of all the people inside immigration detention.  I think of one specific example, a few years ago now, I was visiting a detention center and a white colleague was pretty surprised that in the facility there had been relatively few complaints filed by the immigrants that were being detained there, which is not common when you do a lot of jails and prison litigation.  From his point of mind is, there's just not many complaints, maybe it's not so bad.  So because you're basing your experience in the population that you are most familiar with, in this case the jail and prison population, you ignore the cultural, language, ethnic, and racial barriers of the population jail by ICE.  So a lack of understanding of systemic racism and racial justice can have a very direct impact on how viable we see litigation and how we deal with litigation and other legal advocacy methods.

I think I'm next asking a question.  So this is specifically for Shirley and Britney.  If you could please talk a little bit about the impact of the states' approach to collective versus individual rights which both of you mentioned a little bit in your presentation.

During the pandemic, how does the ADA framework of accommodations factor into this?
BRITNEY WILSON:  I can start us off I guess.  I think in the context of standing, I think there's no greater discussion of sort of the individuality of our juries prudence system.  Think it's a pretty American system.  I know there's places where this isn't a thing.

I think in particular withstanding, not just in the context of the need to be injured by something, but the need to be concretely and particularly injured by it for the injury to be actual and imminent.  So in the context of our ventilator case, not only being injured by the policy but the court saying, well, that's not imminent enough because you didn't die, because we didn't take your ventilator away from you.  So this idea that, you know, you can't just have a generalized grievance if you will and what impact that has when you extend it further. Then we can see that it actually has potentially dangerous implications in terms of not just potentially scaring people away from healthcare but it could have rogue implications if we don't change these policies, right, but because our legal system is set up to say, well, no, this isn't concrete enough, not only is it that you haven't been affected, but you haven't been affected severely enough that it stops you from taking action against things that are otherwise harmful.

SHIRLEY LIN:  Yeah.  I'm going to take kind of an approach that was promising at the beginning of the pandemic or towards the beginning of the alphabet perhaps when we were at delta.  Remember last July on the ADA anniversary, the Biden Administration announced ahead of time that people with long COVID might qualify or could very much fall in a definition of people with disabilities, right, and we know that could be one in four in America.  And of course there are millions in that population.  That was the first time I heard federal government or any administration just gather a diverse array of people and bodies and say, you know what, employers, institutions, federally funded agencies, be aware that this is an obligation and you may need to prepare in advance to address potential stigma, right, if you try to facilitate your members' integration into whether it's work or study or access to services.

And of course we have some countervailing backpedaling by agencies like the CDC in trying to change the numbers to what is considered risk.  Obviously under economic considerations and thinking about employment as the driver of growth and fiscal health in this country.

But I want to think back to what the government can do, especially since the pandemic gives us opportunity to talk about norms.  The understanding of what it means to have accommodations that benefit everyone.  We knew that air filters, remote telecommuting technology, ramps benefit everyone.  Yet these are considered costly, and we don't have a language, politically or in our economics in thinking about third party benefits of innovation through accommodation.  And so the only stakeholder that has the institutional capacity to support innovation, to collectivize and document this is the government.  So I would encourage, when we think about using the law, thinking outside litigation and thinking about using the legislative process and regulation, because certainly the 1991 interactive process of the ADA was a way of I would say add private responsibility and private process to disability justice.  And it in a sense deregulated disability access.  We can find ways to reverse that.

BRITNEY WILSON:  Thank you, Shirley.

For the final question for all of the panelists, are we and/or other activists working in specific spaces, educational settings, healthcare settings, carceral settings, working in coalition with others?  Prianka, you want to start us off?

PRIANKA NAIR:  Yeah, no, I'm happy to do it.  I feel like when you are incarcerated and you are given that title as a person who has been incarcerated, people can forget your humanity but they can also forget the different aspects of your identity, including the fact that you might be a student with a disability and you might still be entitled to educational services.  So I think it is really important that people work in coalition with each other in this carceral space because there are other federal rights that are protected but are not necessarily enforced in these spaces.  And actually the education of incarcerated individuals with disabilities is something that is being pushed by organizations like the ACLU.  But I think there is not enough coalition building.  There is not enough working together to recognize all the needs of people, incarcerated people with disabilities.


PILAR GONZALEZ MORALES:  So you know, I think the responses around collective rights are really important in thinking about work in coalition with others.  In organizing spaces, we often say we keep us safe, and the pandemic has really shown that, right?  So even as right now the government is pushing for us to go back to normal, you know, whatever that ever meant, it's been my peers, students at school, people with disabilities, their families and friends that have continued to keep masking indoors, continue to ask for work from home setups, etc.  So when I think about the immigration detention and other carceral settings, I think we have been relatively successful, working with formerly detained people, with families, with activists that are not attorneys but that we continue to struggle with working in coalition with those that are not currently caged.

I often see attorneys work with their clients in extremely limited ways.  So we interview potential plaintiffs and decide who is a good plaintiff.  We extract their facts and stories.  And then we move on to the business of litigating.  And at that point we often relegate our clients to almost nonexistent role until we reach the point of depositions or settlement.  And that is especially true for people who are incarcerated, whether jail, prison, or detention center.

So for me I think in litigating Fraihat, we definitely learned to build coalitions across many different groups of people working both in jail settings and detention.  I think we've done better than usual in working with our incarcerated folks, but as a general like disability justice movement, that is something that I often see lacking and that I would love for us to take more time to invest in.

I think the first step to that is really seeing our clients as more than just plaintiffs, but seeing them as whole human beings, as activists and leaders in their own communities.

BRITNEY WILSON:  I completely agree.  Shirley?

SHIRLEY LIN:  Great.  I'll keep it short because I know we want to leave time for questions.  But one of the main coalitions that formed early in the pandemic that I saw outside of course the labor union context that was my case study, I think about how Disability Rights Advocates and pregnant workers advocacy groups came together.  Those with caregiving responsibilities, people with family responsibilities, their interests converged yet again, even though there's historically been a division, at least a legal strategy between disability rights advocates and feminists.  But one of the things that I think could be strengthened of course is providing more support for students rights in educational settings.  I'm finally getting to higher education. Because about 95% of faculty were online during the pandemic at some point, and all schools engaged in some form of technological innovation, schools and universities are where we develop our norms.  So it is incredibly important for those spaces to not backpedal and think about the ways in which they have been pleasantly surprised to see students who otherwise would have dropped out.  And I see that in my own law school classes, but who are instead attending hybrid as they can because of a combination of disability and caregiving responsibilities, whether for someone younger or older.  It is quite prevalent at my school.  And that is our purpose.  We have to show that we are advancing our mission to the greatest extent possible, and so I'm hoping that we can continue to have conversations like the one on this panel across settings, and speaking on this panel as someone focusing on civil spaces, my hope is that the advocacy and the agitation for safety, public safety in workplaces, in schools, translates as well to advocacy in carceral settings.

BRITNEY WILSON:  I think for me I'm going to keep it short and agree with everything you all said and say yes, there's definitely people working in coalition.  I think no one does that better than people with disabilities. I think working within our own coalitions and across disability.  I think it needs to be better in terms of working in coalition across perceived subject matter areas beyond the realm of disability.  So I will say I think I'm seeing more of that happen.  I think a lot of it is happening in the voting rights space.  I think that's good to see.  I think it needs to happen across other issue areas as well.  But it is happening but not enough, and there's more work to be done.  That would be my answer.

And I will, with that, thank you all for listening to us and ask you if you have any questions.  I've been monitoring the chat and I don't see any questions, but don't hit us with all of them at once.  But also let us know if you would like for us to address anything further.

I see a raised hand.  Why don't I just call on you, then.  Steve?

STEVE:  Yes.  In my area, the Arc of Loudoun and some of the Arc chapters have done a nice job of building coalitions with some of the covered entities.  So they have a disability and justice coalition that includes the sheriff's department, community corrections.  And what I have observed firsthand is that some of the cultural barriers, there's been cultural competency and some of the attitudinal barriers have started to come down a bit.  And I just was curious to see if there's been any work in any of your spaces like that and what you have found, because I was very -- I found it to be very nice development when I start seeing people who are working for covered entities and they're now doing presentations on how to comply with the ADA as well.

BRITNEY WILSON:  Does anyone have thoughts to offer in response to Steve?

Maybe not?

Okay.  I don't have any particular thoughts to offer in response to that.  So maybe we can just say thank you for your comment, it's good to know that there is coalition building happening with state entities.

And I saw there's a longer comment in the chat about the adoption of disability rights issues by nondisability-focused advocacy groups using the ADA, how do we feel about that.  I'm skimming this question, so forgive me.  There's a thin line between tokenism and disability justice framework that recognizes that issues affecting people with disabilities affect other marginalized groups and vice versa.

That is a very great point.  Does anybody want to take that first?

PRIANKA NAIR:  It's a tough question.  But a profound point.  So I'm going to hazard a guess at a response that kind of probably does not answer your questions, Holly, and I apologize from the outset.
But you know, something that I did see happening with the Britney Spears case, and I know this is not ADA specific, was a recognition that reproductive rights and disability rights really overlap.  So you had people like the CEO of Planned Parenthood talking about guardianship as coerced reproduction.  And I really do think that, yes, there a thin line between tokenism, as you were saying, but what they did I think has magnified these facts.  When you build coalition, you give someone with a disability or you recognize the multiple identities of a person with a disability.

So I don't know.  I hope that comes close to answering what you're talking about, Holly.

BRITNEY WILSON:  Yeah, Pilar, you want to respond?

PILAR GONZALEZ MORALES:  I was.  Yeah.  I think it's a very good question, and I agree with everything Prianka said.  I would add that it's important to not think as either/or.  I often hear, oh, the disability community and the BIPOC people.  And it's like, well, BIPOC people are part of the disability community.  And, in fact, in many instances are disproportionately part of the disability community because of, you know, different forms of oppression.

So for me litigating in jails or detention centers, it isn't an either or.  It's almost like the Venn diagram are two circles.  So I just wanted to point that out.

And I wanted to address the earlier question now that I've sat with it.  I respect and I think it's necessary in some instances to have coalition with different government institutions.  I think in the context of immigration and in the context of jails, the concept of building coalition with those that are caging my clients is just simply not possible because their safety and well-being is directly impacted and at the hands of those institutions.  So in my work, when I litigate on behalf of people, you know, activists and protesters with disabilities, I cannot build a coalition with a sheriff's department that has brutalized my clients.

So I think there's room in certain instances, and in other ones, like particularly the work that I do, that would just not be possible.

PRIANKA NAIR:  I would say that something where there have been changes in conditions of confinement in prisons is in settlements that's been more successful of going to court to try to resolve ADA claims.  For instance, in one of the cases that I looked at, Busby v Bonner, violating Section 504, the consent decree provided for the provision of masks, the appointment of an inspector to advise on social distancing and adequate cleaning supplies.  It's not quite coalition building, but I have a feeling that we can work together to come up with solutions outside of the ADA framework.

BRITNEY WILSON:  Great.  I see we only have one minute left so I'm thinking we should maybe wrap up.
I want to thank the person for their question and thank you all for your time and I'll pass it back to the facilitator.

LOU ANN BLAKE:  Thank you so much, to all the speakers on this really outstanding panel.  It's really a thoughtful discussion and a great way to end the symposium.

This is Lou Ann Blake at the National Federation of the Blind, and on behalf of the NFB, I would like to thank everybody who has participated in the 2022 Jacobus tenBroek Disability Law Symposium.  It's been outstanding.  Everybody who has participated has helped to make that happen.  We really appreciate it.
I would like to thank all of our sponsors, all of the members of our steering committee.  I forgot to note that Kathy Martinez is a member of our truly, truly fabulous steering committee.  And we are very grateful to them for all the assistance they provided us in putting this symposium together this year.

Finally, I just want to say we all are hopeful that next year we'll all be able to meet together here at the Jernigan Institute in Baltimore, and have another wonderful symposium in 2023.

Thank you all so much, and have a good evening.