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.
SANHO STEELE-LOUCHART: Today, to present for us this morning, we have Megan Schuller, the legal director of Bazelon Mental Health Law center, the Center For Mental Health law, rather.
We have joining us on Zoom today, Claudia Center, the Legal Director of Disability Rights Education and Defense Fund.
We have with us as well Kathryn Rucker, the legal director -- a lot of legal directors -- the legal director of the Center for Public Representation
SANHO STEELE-LOUCHART: And of course we have Amy Robertson partner at Fox Robertson. And we have Robert Dinerstein, Professor Emeritus at American University Washington School of law. Please give them a warm welcome this morning.
(Applause)
KATHRYN RUCKER: As Sanho said, I'm Kathryn Rucker with the Center for Public Representation. I'm a white woman with brown hair and glasses wearing a black suit today.
On behalf of our whole panel I want to say good morning and we're pleased to be here with you both to talk about our issues but also to honor the legacy of Dr. tenBroek and want to extend our thanks to the National Federation of the Blind for their hosting us today and for convening us at such an important time.
I have to confess at the outset when I was thinking about this panel, I was growing a bit nostalgic for the days last fall when we thought Loper Bright was the biggest issue that we needed to be worrying about in the context of our disability work.
That has obviously changed, and now the threat landscape has radically changed. Some of the very federal agencies and programs that our communities depend on are at risk.
Despite the chaos, and many dark moments, I have to say that it's been really heartening for me to see the groundswell of activism in our disability community.
Both across a network of allies and others who understand the importance of these issues, and are committed to fighting to stop the kinds of policies and practices that would reverse decades of progress that we've made together in the disability rights and disability justice movements.
We hope this panel can serve as a continuing call to action, by providing all of you with information, resources, and strategies that we can all use collectively in our work going forward.
Today we'll talk a little bit about the historical and legal framework for disability rights laws and statutes.
We'll also talk about some of the arguments and strategies for defending our regulations in court, and we'll begin a conversation that we expect will run over into the workshop today about how to respond to some of the evolving legal challenges in this space.
But first, I'll turn it over to Bob Dinerstein to provide an overview of the major Supreme Court decisions that we'll be talking about today, what they signal about the shift in balance between administrative agencies and federal courts, and then a little bit about the emerging jurisprudence around deference.
ROBERT DINERSTEIN: Thank you, Catherine. My name again is Bob Dinerstein, I'm a youthful retiree wearing a blue sports jacket, lavender shirt and a beard which I used to describe as salt and pepper but it's definitely heavily salt right now. And I am Caucasian. So I was telling people this morning there were certain omens that I experienced on the way here today. A good omen was the traffic was too bad so I was able to get here in a timely way.
An interesting omen as I was listening to our local NPR station, WAMU, there was an ad from chevron which I never heard before, and I thought that was interesting. And the third tragic, on men was that I did not succeed in getting my Wordle today so my 49 day streak is over. So I figure it has to go up from here. So I'm here to talk in a very overview-oriented way about some of the major cases that led up to this Loper Bright case.
And as Kathryn said, the day we submitted this proposal was on the due date was November 1st, and I think we had a somewhat different sense of where we may be going. Here we are, and it turns out we have a lot to say that I think you'll learn about Loper Bright and what related cases might mean.
So Loper Bright purported to, and actually explicitly said, that it was overruling a case called Chevron v. national resources defense council. Let me ask, we do have slides but I'm not sure you're seeing them.
There we go.
Again, for the benefit of those who need it, I will be reading the slides that I will be using. So it's Chevron USA Inc. v. Natural Resources Defense Council, 467 U.S. 837. There are a number of my former students in the audience. I will feel free to call on you if I need to.
(Laughter)
The case was decided in 1984, it was actually a 6-0 decision by Justice Stevens, there were three recusals in the case. Interestingly enough the Court says it was a truncated court, true. But everybody who voted, voted for it, so it was not necessarily controversial at the time.
As we say at the time, the holding in the case federal courts must defer to reasonable ambiguous statutory provisions. And the case laid out a 2-step framework, and they actually call this the Chevron two-step.
Lawyers are not so good about being cute. And it's known as a Chevron two step and it requires two steps.
The first is courts using all tools of statutory instruction available, must determine whether a statute is genuinely ambiguous or silent with respect to the specific issue in question. If it says specifically the issue, we go to the statute itself.
If there is ambiguity, it goes to step 2 which Chevron said the Court must defer to an agencies reasonable interpretation of the statute. So one of the first questions is, is the language actually ambiguous?
Because if it's not ambiguous, you never get to step 2.
But once you get to step 2, as long as the agency's interpretation is reasonable, the Court should defer, that is they should follow what the agency is saying. And the assumption there is agencies have expertise.
They know the area they're regulating and if they're looking in that area, they are better positioned than judges might be to determine what the intention of Congress might have been.
You'll note as we go this that a number of the cases in this area are environmental cases and this was a case concerning the Clean Air Act amendments of 1977 and had to do with clear air standards.
One of the important aspects was in determining about its determination of ambiguity, it was important to the Court that the legislative history indicated that the EPA should have broad discretion in implementing the policy.
In some sense it was an overview type of way that Congress knew that this was such a technical area that it was important to give the EPA broad discretion. So that was also an important part of this.
Interestingly at the time, because Chevron came under a great criticism, at the time it was hailed by conservatives. I think part of the idea was better to leave regulation and determination in the hands of agency people than courts. Because who trusts judges to make these decisions? That was at least the view at that time.
Politics would change.
Now it's out of order, but it’s important to know what another case which actually both precedes Chevron and as we'll see survives the overrule ruling of it, that's the Skidmore v. Swift Company, a 1944 case, written by Justice Jackson.
Also unanimous. A lot of cases a lot of unanimity. A court held that a court will grant an agencies interpretation of a statute only as much deference as the agency's persuasiveness warrants.
The Court it does not mandate a court defer to an agency's interpretation of a statute, but it provides an analytical framework of factors for a court to consider, including: thoroughness of the defendant in agency's consideration, the validity of the agency's reasoning and the consistency of this interpretation with earlier and later agency pronouncements.
This had to do with workers at the Swift Company who were required to be on site at the company and were not being paid because they were not on the clock. And they challenged that provision and important quote from the case was although rulings interpretations and opinions under the Fair Labor Standards Act do not control judicial decision. They do constitute -- and here's the key phrase -- a body of experience and informed judgment to which courts and litigants may properly resort for guidance.
And it's important to know this case was in 1944, shortly after the beginning of the New Deal one might say the height of the growth of the administrative state in its early years.
So I think sense was, in a common sense way, if you're looking to figure out what statute might mean, how to interpret it, look to people who actually seem to have some expertise. Assuming the ruling is persuasive to you. You're not required to follow it, but you're encouraged to look at it.
Now after Skidmore we have a kind of odd case, Auer v. Robbins, it's 519 U.S. 452. I know a couple of you immediately caught that. This was a 1997 case.
The holding was courts will defer to an agency's reasonable construction of ambiguous regularly language unless it is plainly erroneous or inconsistent with the regulation.
There's two ways to think about what courts do here.
One is interpreting an ambiguous statute.
Auer is about interpreting an ambiguous regulation itself.
In some of these cases, that's an important distinction, what are we trying to figure out?
What did Congress mean when it passed the law, or what did the agency mean when it issued a regulation. And when you think about it, you might say again if the reasoning is valid, it is better to rely on what the agency thinks it means than perhaps a judge or somebody else do doing that.
This case has had a limited shelf life, it's from 1997. It was called into question in a complicated case called Kisor v. Wilkie in 2019 which tried to limit the so-called Auer deference.
They came close to doing so, this was a very divided court, but they decided not to do so.
But I think sent out pretty clear signals that this deference was on weak. According to Kisor, the Court using all tools of statutory construction should determine that the regulation is genuinely ambiguous. If it's clear, you don't have to go further.
The agency's interpretation has to be reasonable or fall within the zone of ambiguity, which sounded to me like the zones of privacy.
And the character and context of the agencies interpretation entitles it to controlling weight. We're here to not what I would call strong deference, but some deference looking at expertise.
Now, switching gears just briefly, a case called West Virginia and Environmental Protection Agency.
This is a 2022 case which talked about the major questions doctrine.
What's important about this case is it's another way of calling into question I think the overall role of expertise, frankly the role of government, which is to say that if we're regulating an area that is a really important economic -- of great economic importance, we shouldn't lightly determine that Congress wanted the agency to do that. Because it's sort of too important to leave to the bureaucrats, one might say.
The Court held that agency actions seeking to regulate on issue of quote, major national significance" unquote, must be supported by clear Congressional authorization.
Congress rarely provides an extraordinary grant of regulatory authority through modest words, vague terms or subtle devices.
Maybe they haven't read statutes recently.
It has generally used it to reject claims of regulatory authority when the underlying claim of authority concerns an issue of vast economic and political significance and Congress has not clearly empowered the agency with authority over the issue. So there's two parts here.
Is it really an important issue?
Is it something that has significance in the greater economy and secondly, has Congress spoken to this issue. So one of the things about these cases is emphasizing in a way that I think we've sometimes gotten away from looking at separation of powers is that Congress needs to be more explicit about what it's doing when it legislates.
It's not that Congress is not smart enough to do that, but it's often, as you know, that laws are compromises, or at least they used to be. And sometimes language is purposely left in an ambiguous way to sort of punt it to an agency to kind of fill things out. So that becomes a complication here when we're talking about a court looking at whether Congress was clear in what it did.
So that leads us up to Loper Bright.
And in -- Loper Bright explicitly the Court granted review of the case with the idea of considering whether to overrule Chevron and it's important to note that even though Loper Bright was in fact did overrule Chevron, they explicitly did what they were considering, the Supreme Court itself had not relied on Chevron since about 2016. So if you were reading take leaves at that point you might have concluded maybe Chevron isn't as powerful as it used to be.
But nevertheless it was still on the books. And I think there was a sense that the Court had in Loper Bright, that perhaps by being on the books so-called, so to speak, the lower courts were kind of confused about whether or not they should still be relying on Chevron. In Loper Bright, the holding is that the Administrative Procedure Act requires courts to exercise their independent judgment in designing whether an agency has acted within its statutory authority.
It overturned Chevron deference to reasonable agency interpretations of ambiguous statutes.
It recognize that Congress could expressly delegate authority to an agency and the Court could respect that.
It stated it not called into question cases previously decided on Chevron so it's not looking retroactively. And it reinforce that Skidmore respect as opposed to deference still exists. So briefly about this, commentary right now is all over the place is Loper Bright a major break or not. It's explicitly presented as if it is, and the majority it's a 6-3 decision. The majority believed it to be.
But it's still a little bit unclear. And what's unclear about it or some brief clarifications. One, it again does not overturn prior Chevron cases.
Two, the deference that is overruled is deference to what the statute's meaning is. There still is a role for deference to the agency's fact-finding and to the agency's policy making roles. And we may think what are the areas of institutional competence.
So really what the Court said was when it comes to construing statutes, we judges, this is what we do. And you agency folks don't have particular expertise in interpreting what statutes mean.
That's what we will do.
Even though we will still look to agency reasoning, perhaps, we're not going to be look at what might be thought of as a knee-jerk way. It's also important that the Court ruled in this case on the violation of the administration procedure act. It did not determine that Chevron was unconstitutional or giving the agency authority of that nature was unconstitutional even though Justice Thomas would have gone that far.
And so the question, the third important thing to say here, I think what is Congress saying with respect to the level of delegation. So if Congress says to the agency, yes, you have broad authority, that is an important element in saying that you can look to what the agency is doing.
So there's a lot in Loper Bright and we'll be getting into specifically with regard to disability statutes as my colleagues will get to, but it does purport to change the scene. And as I said, academic commentary is only decided last term, it is still forming but most of it is to say like you can find what you want based on what you think.
Now, there's one other case and I'll be concluding and that is a case which also is pretty significant but it's gotten left attention that's Corner Post v. board of governors of the Federal Reserve system also a 2024 case. In that case the Court held that the six-year statute of limitations under the Administrative Procedure Act begins to accrue comes into play, when the plaintiff suffers an actual injury. When the plaintiff could bring a lawsuit, not after the final rule has been issued.
So we had understood, I think many people had understood prior to this case, that if an agency, whether it's the EPA or HHS or any agency issues a regulation that after six years it's no longer capable of being challenged. Well the Court said no, because if somebody is contesting that regulation, and they are not able to bring a case until they've suffered actual injury -- there's a lot of criticism of in this case.
In terms of what our concern is it leads to what I think uncertainty a word you may have heard a lot recently about whether agency regulations are kind of established and limited challenges can be made to them, or whether or not they are subject to constant questioning and a delay.
And I think again it reflects a genuine distrust of bureaucracy, the so-called Deep State criticism.
A distrust of expertise, particularly scientific expertise, and saying essentially that all bets are off and we can reexamine almost any kind of issue. So with that I'm going to turn it over to my colleagues. I would just say lastly, and I think they'll go into this more explicitly.
The good news I think for disability is that many of the important cases that you're aware or interpretations of regulations have not particularly relied on Chevron deference and because of that, as important as Loper Bright might turn out to be with regard to administrative law generally, we may be able to cabinet its effects of disability area.
Thank you.
(Applause)
CLAUDIA CENTER: Thank you, Bob. This is Claudia Center speaking to you from San Francisco. I'm a white woman over 50 with brown hair. And I'm going to talk a little bit about the historical and legal framework of our key disability rights laws. Two of our most important and powerful laws are Section 504 of the Rehabilitation Act and Title II of the ADA.
And as we all know, both of these are very short statutes with the substantive language requiring nondiscrimination totaling less than 50 words. And all the detail about what disability nondiscrimination is comes in the regulations.
The regulations have all the meat of the statutes for Section 504 and Title II of the ADA. So that could on its face make us have a panic about Loper Bright, because all the important stuff is in the regulation.
But I think what our session today wants to tell you, or is trying to communicate, is don't panic.
We have really strong components of our statutory history that will help you if you do encounter a Loper Bright challenge.
So when analyzing a Loper Bright challenge, you want to start with the specific language of the statute, the specific allocation of authority to the agencies, and then just any interaction or relationship between the law and Congress. Because Loper Bright really focuses on Congress's role in enacting a statute.
So I'm going to start with slide 12 on Section 504, and as that slide says, in 1973, Section 504 was enacted to prohibit disability discrimination by recipients of federal financial assistance. And you know, that's 29 USC section 974. So we all know the history of the section 504 regulations finalized in 1977. We've all watched Crip Camp and the power of 504.
But what's important here for our purposes is the final regulations were developed with substantial regulation of Congress. And that is documented in the history of those regulations. So there was consultation with House and Senate committees.
There were Senate hearings considering the regulations. When the final regulations -- no. When the proposed regulations were being considered, HEW, which was the agency at the time that developed and ultimately finalized the regulations, HEW sent a copy of the proposed regulations to each member of Congress and solicited comments.
And then even after the regs were finalized, there was a House committee that conducted further hearings on the implementation of 504 and the specific requirements of the regulations. So you can see there there's a lot of Congressional engagement with the regulations, that's very important under Loper Bright, because it shows that Congress is essentially approving the regulations.
So in 1978, Section 504 was amended to specify that agencies can issue regulations. So that's an important factor under Loper Bright that the agencies specifically authorized by the statute, and that these regulations are to be reviewed by Congress.
So the slide reads in 1978, Section 504 was amended to add federal agencies and crucially to require each agency to promulgate regulations to carry out the statute as to that agency, and to submit those regulations to the relevant Congressional committee. So what the statute says is copies of any proposed regulations shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the 30th day after the date such regulation was submitted to the committee.
So in other words, it's explicit in the statute that Congress will review the regulations before they go into effect. And so what has happened since, you know, Section 504 went into effect, is that Congressional committees have had the opportunity to review at least 50 sets of Section 504 regulations.
And these are collected in a brief that several of us worked on, including Amy Robertson and I in the CVS v. Doe case. And in that brief there's a table at the end that Amy Robertson created that I use all the time, that shows how these sets of Section 504 regulations were submitted to Congress. And so it really just brings the imprimatur to Congress that include all of the detail.
So given that history of that I just sort of talked about, about the section -- sorry, the 1977 regulations, the very first HEW regulations, there are three Supreme Courts that talk about that specific history, three Supreme Court decisions that talk about that specific history, and give deference to those 1977 regulations, because of the Congressional engagement and review and those three cases are the Darone case in 1984 and that case has the most detail about the process, also Alexander in 1985 and Arline in 1987.
So compared to some other statutes and the implementing regulations, we have some tools to show the Congressional engagement and that these regulations should survive any Loper Bright challenge.
Now I'm going to move to the Americans with Disabilities Act or slide 13.
And so Title II of the ADA at 42 USC section 123214 directs the DOJ to promulgate regulations and incorporates by reference very specifically the standards of specific Section 504 regulations as minimum standards for the regulations implementing Title II of the ADA. And so basically, Title II of the ADA incorporates certain regulations issued by HEW, the regulations I was just talking about, and then certain regulations promulgated by DoJ for Section 504.
And then later in the ADA at -- I mean in Title II of the ADA, section 12149, directs the DOJ to promulgate regulations consistent with minimum guidelines issued by the Architectural and Transportation Barriers Compliance Board.
So in the words of the slide that's up, the Title II of the ADA directed that by July 261991, the Department of Justice and the Department of Transportation were directed to issue implementing regulations. The DOJ regulations were to be consistent with section 504 coordination and agency regulations.
The cord nation regulations are the DOJ ones, and the agency regulations are the HEW regulations.
And Title II gives detailed instructions about the department of transit regulations. So in other words, even though again 12112 of Title 42 which is the heart of our nondiscrimination provision, under Title II, even though that provision is fewer than 50 words, we have this really specific statutory language in Title II of the ADA that incorporates by reference minimum standards that are really critical.
Many of our core nondiscrimination rules date back to those regulations that are incorporated by reference explicitly in Title II of the ADA. So I, after I read Loper Bright, and went back to Title II of the ADA, I called up Arlene Mayerson who is my predecessor at DREDF and I thanked John by email as well by having the foresight to include that specific language in Title II of the ADA and to give that Congressional approval to the existing regulations as a minimum standard.
That is going to be so helpful as any of us face Loper Bright challenges. So I am going to now complete my portion of the panel, and turn things over to my colleague Amy Robertson who is really an incredible expert on these issues, has published on this issue, and again, was critical to our CVS V.
Doe brief which sets out almost all of what I have just reviewed briefly.
Thank you.
(Applause)
AMY ROBERTSON: Thanks Claudia for that lovely introduction. I'll say I'm about to publish an article on this which was included in the materials that drew enormously on the work that I did with Claudia and a number of other folks on the CVS brief. So that was one of our first really deep dives into the regulatory history.
So I'm Amy Robertson. I'm a partner at the Denver law firm of Fox and Robertson with my law partner and as most of you know, also my husband, Tim Fox we've been litigating cases under Titles II and III of the ADA and Section 94 since about 1996.
And this has repeatedly required us to do a deep dive into regulatory history to push back on some of the truly bizarre arguments we get from opposing counsel. So well, my co-panelists are going to go into I think more academic or policy-oriented things. I'm going to talk about how you push back in court when, say, Greg Hurley rolls into court and says well, now that we have Loper Bright, my client doesn't have to comply with the ADAG. And if you don't believe that's going to happen, trust me it's going to happen.
Like I said I've included in the materials an article that kind of sets out a lot of this. The article was drafted and it was initially a blog post to sort of say hey to the disability rights practitioners, hey I think we're going to be okay.
And it turned into an article with a limit more research but sadly no longer a picture of my dog. And I also want to say my focus today and on the article is on the sort of interrelated regulations for Title II, Title III and Section 504.
But those are far from the only regulations that the disability rights community and disability rights practitioners need to worry about, need to focus on.
We will need to think about and defend regulations under Title I of the ADA, the IDEA, Fair Housing Amendments Act, just very recently, the late Biden era, regulations under the air carriers access act that stand for the very conversation proposition that people whose wheelchairs should not have their wheelchairs broken by airlines, that is pretty radical, has already been challenged by a group of your favorite airlines. So we need to keep an eye on that.
I also want to say to, my message here with the entire panel is that specific disability rights regulations are likely going to survive.
But I also don't want to down -- in saying that, I don't want to down play the extreme harm that Loper Bright has already caused in many communities, and in specifically to regulations that protect the trans community.
Almost immediately after the decision, almost as if they had been waiting for it, the decision was harnessed by conservative judges in very strategically selected conservative jurisdictions in cases brought by conservative attorneys general, to challenge Title IX and Affordable Care Act regulations protecting trans individuals and sadly those challenges have been largely successful.
So while I'm enthusiastic about the tools that we have to protect the ADA, but we have to keep using these tools and other tools and every means that we can to protect and promote the rights of our trans siblings and never want to lose sight of that.
I also want, as an aside -- I talk about how this is going to come up in a lot of different contexts. So just I read two fun things in doing the research for the article and then this.
I think illustrating how it's going to come up everywhere.
In one case, these are both quotes from the decision, the judge says, quote, the defendant reads Loper far too broadly.
Loper does not stand for the proposition that all regulations promulgated by federal agencies must be disregarded. So that's good.
I like this one even more, and I think as a plaintiff you really live for moments like this. I would have enjoyed being in court.
Again a quote.
At the hearing, the undersigned, the judge, the undersigned directly asked the defendants counsel what allegedly ambiguous statute was at issue in this case and counsel quickly withdraw the argument. So push back. So I think ultimately we're going to see challenges, both from sort of major well-funded broad sides brought by conservative attorneys general or conservative legal organizations, and I think Megan and Kathryn are going to talk about some of these. There's one, though it doesn't mention Loper Bright, it might as well, Texas v. Becerra case.
But I think the other way this is going to come up and we have to be vigilant defense counsel and single plaintiff or single barrier Title II or Title III cases will seek out an opportunity to start chopping away at individual regulations and potentially in a context where a plaintiffs lawyer might not be as well-versed in all of this, might eventually go up to an appeals court, where some amicus support would be really helpful.
I'm trying to track these best I can using my west clip function.
But I want to say if you encounter this in your practice or you know of a case, there's a whole bunch of us who are ready to jump in and help and write amicus briefs and make sure we're defending these regulations on every front. So now I want to talk about what I was supposed to talk about, is how we can use specifically the language of Loper Bright protect the Section 504 and ADA regulations. So I'm back, slide-wise, to the slide that Bob described that lists the holdings of the Loper Bright case.
And the last three bullet points talk about specific holdings which Bob read that I think we can really harness to defend the 504 and ADA regulations. And I'm going to sort of read them as I come to each one.
The first is that court recognized that Congress could expressly delegate authority to an agency and the Court would respect that, quote, consistent with constitutional limits.
That may or may not be a John Roberts' sized loophole now we're going to decide on constitutional delegation.
I'm not an administrative lawyer. As Claudia explained, as of now we have very solid delegations of authority to the Department of Justice, the Department of Transportation and the access board, to promulgate relevant regulations.
Claudia went through that, in particular I'm going to kind of review -- not only is there delegation language but there's language that essentially incorporates by reference these earlier regs the 1978 HEW coordination regulation and the DOJ agency regulations and also the access board standards as of the time that the ADA was passed.
But wait, there's more. And I think we have a slide about this. Yes. So in Title V of the ADA, which is the part of the ADA that applies to the entire rest of the statute, so this is not limited to either Title II or Title III, you have a provision that says in the statutory language, nothing in -- except as otherwise provided in this chapter, nothing in this chapter -- that's the entire statute -- shall be construed to apply a lesser standard than the standards applied under Title V of the Rehabilitation Act of 1973, or the regulations issued by federal agencies pursuant to such title. S
o in the statutory language, Congress has set a lower bound on how you interpret the ADA, and that is incorporates all of the regulations in place, I would say, as of 1990, when the ADA was passed, implementing Section 504.
And that's huge.
This covers a lot of ground, and I want to just list a couple of areas that we find in those early pre-1990 Section 504 regs that we still rely on regularly to this day. So those older regs included this general antidiscrimination language that's now in 35130, the integration mandate, which a lot of defendants are trying to pretend didn't exist until Title II or effective communication with respect to the disabled person. It's getting a lot of push back but it was right there in the 1990 DOJ agency regs that were incorporated by reference.
Standard for new construction and alteration to be readily accessible to and useable by people with disabilities, program access required of existing facilities. And a pretty robust set of standards for accessible design.
It's definitely evolved since 1990, but if Greg Hurley rolls into your courtroom and says if the word "ramp" isn't in your language, you have a good set of accessible design that weren't incorporated by reference.
I want to note that one of the things you didn't hear me say here is reasonable modifications or reasonable accommodations which has not been featured in the 504 regs because it was a creature of a Supreme Court decision, Alexander. So that is very, very well grounded in the law.
But just by way of an example of how I think defendants are going to harness this and how we push back is a set of cases in Georgia, which I think Kathryn is going to talk about in a little greater detail.
The state of Georgia, both the DOJ and a set of organizational plaintiffs, challenged the way that their public education system was being run for students with disabilities in a very segregated manner.
Well, so the state pushed back under Loper Bright, and said the word "administer" is not in the language.
Those 50 words of Title II. So there's no requirement to quote, administer services, programs, and activities in the most integrated setting.
Wrong.
But there you have the State of Georgia trying to toss the entire integration mandate, because they don't find that one word "administer," probably didn't find it integrated either, in the language of the Title II statute.
But that language, administer in the most integrated setting, is there in the 1978 regulations that are incorporated by reference into Title II. And obviously this point was made very ably by all of the terrific plaintiff counsel in that case.
I don't know if any of them are here today, but thank you. Sadly the Court decided against -- made a decision that made that analysis irrelevant so we didn't get the Court's ruling on it.
But that's exactly how to push back. This has been incorporated by referential expressly into the language of the ADA.
The second holding I'm going back to the Loper Bright slide here, is that the Court stated that it would not call into question earlier cases relying on Chevron. And as Bob noted, a lot of our early cases that we rely on the most used the regs but without explicitly tying it to a Chevron analysis.
So we have pretty good Supreme Court precedent that we can rely on.
Including as Claudia mentioned the Derone case, Arline and Chote, all gave a lot of weight to the regulations without doing any kind of Chevron analysis.
But I especially like the 1998 case of brag done v. Abbott which was interpreting the definition of disability. It was a title 3 case it was defining disability of a person with HIV.
Bragdon relied on that language that sets the interpretation of the ADA at a lower bound at all of those section 504 regs. So the Court noted that all of those section 504 regs had been -- the agencies had interpreted the definition to include individuals with HIV. So number one, it relied on 12201 and said in the end that directive requires us could construe the ADA as the agencies in the Rehabilitation Act.
Brag Don also relied on Skidmore deference or respect.
And held that specifically said we don't need to inquire whether we should do a Chevron analysis.
It is enough to observe that the well-reasoned views of the agency implementing the statute constituted a body of experience to which litigants may properly resort for guidance. And so the Court there relied on the DOJ's interpretation of the ADA based on Skidmore respect. And then it goes on to do a Chevron analysis and holds that it was required to. It says our conclusion is further reinforced by Chevron, and the deference that that case required. So I think that sort of belt suspenders and duct tape in Bragdon.
And finally, and this is the final bullet here in the Loper Bright slide, that case reinforced again the level of respect that was due under Skidmore to well-supported regulations. And I think as you look through the regulatory history, and we're starting to kind of gather all this in one place. So within a week or so, let me know if you want the Google drive link and this is we're going to try to put this all in one place.
But starting in -- Sorry. I don't know what that is. So the 504 regulations and the Title II and Title III regulations, I think tick all of the boxes necessary under Skidmore for respect even if we don't need that given the delegations and earlier decisions, because all of them went through a very rigorous notice and comment process.
If you look through the federal register final rule publications, they list enormous numbers of comments received, hearings conducted, the types of individuals participating, people with disabilities covered entities. The design standards were promulgated by the access board, which itself is required to have members with disabilities and also generally has members from both covered entities and more expert areas, architecture design construction.
And so I think ultimately if you need to go to the Skidmore deference or Skidmore respect, these regulations have everything you need for that.
With that I'm going to turn it over to Kathryn and/or Megan.
MEGAN SCHULLER: Did morning I'm Megan Schuller I use she/her pronouns. I am a white woman with long blondish hair wearing a black mock turtleneck which might be a throwback for some. So I am those who don't know me formerly worked in the disability rights section at the Department of Justice where they write the regulations for titles II and III of the Americans with Disabilities Act I was always a litigator so I did not write them so I will say I identify as I guess an ADA nerd and I think I'm in good company up here.
So we appreciate you bearing with us as we get into some nitty-gritty but I think some of the big picture takeaway that we want you to have here and that I originally had planned to say, the sky is not falling. I think the sky may be falling, but I don't think it's because of Loper Bright or Corner Post.
And why do I think that? I think it's for the many reasons that my colleagues just set out and Amy and Claudia explained in terms of the very strong arguments we have for the ADA and 504 regulations.
It's also because courts ignored Chevron quite often when they felt like it in cases before this, if they did not agree with a regulation they found a way to do so or found that the statute wasn't ambiguous, because this only applies if the statutory language is ambiguous. And also a lot of lower courts don't actually want to do a de novo review.
And where there are regulations that they can turn to, particularly on regulations they don't feel, it is particularly in their wheelhouse they might like to look to the regulation and give it weight and authority. So frankly a lot of this was judge by judge and court by court before now.
And as Bob noted, that the Supreme Court hasn't relied on Chevron since 2016, I think a lot of us saw this coming for a long time.
That the deference that we used to rely on was getting whittled away. And so I also think that it is in the current "sky is falling" world, potentially a case that might be helpful to us, as has been explained. The Loper court gave some sort of preference to regulations that were passed and implemented close in time to the enactment of the statute. And we have many judges who are now originalists and many of us are now becoming expert originalists in our arguments.
But this may be useful to us if there is upcoming rule making, and a need to challenge regulations that are not consistent with long-standing regulations and the understanding of the meaning of statutes.
So that's a slightly perkier overall positive spin on this, but I also want to give some explanation of where the challenges are coming up, and bee certainly are seeing them and we're going to see more, and what the landscape looks like in practice.
I will also just briefly note that I think many think that Loper is not as dangerous as the major questions doctrine that was explained, and that is still out there.
But one other slightly positive spin some have put on Loper is that the major questions doctrine was intended as a limitation on Chevron deference. So it should arguably no longer be relevant.
I have yet to see a court buy that document, but it is one that I want to note. So I think one important point here, Loper Bright is narrow.
We have strong statutes, and in addition to what has already been discussed, Title III is a very detailed statute. And many of the concepts that are in the regulations for Title II, are in the statute for Title III, including reasonable modifications.
I also think that the introduction or preamble to the ADA is one that we will want to look to or rely on that has a paragraph of explaining different forms of discrimination against people with disabilities. And it includes statements about segregation being an illegal form of discrimination, and a failure to modify policies and practices and many other helpful statements there.
So we do need to start making sure, if you're not already, that in our affirmative cases and our claims and our briefing, we are making those statutory arguments first and foremost. And we have a lot of grounds for doing that, including many of the things that have been described, in terms of how you can also tie the regulations to the statute.
But there's great language there too. And I think an important example of this is Olmstead and some raised concerns immediately after Loper Bright what this could mean for Olmstead because I think many of us associate it with our heads in the integration mandate in the Title II regulation that says you have to provide services in the most integrated setting.
But in fact if you look at the Supreme Court's decision in Olmstead, which was a 1999 case that found that unnecessary institutionalization of people with disabilities is an illegal form of discrimination under the ADA.
What they said is that ultimately, in the ADA, enacted in 1990, Congress not only required all public entities to refrain from discrimination, additionally in findings applicable to the entire statute, that's the preamble I just referenced, Congress explicitly identified unjustified, quote, segregation of persons with disabilities as a quote form of discrimination.
The Court primarily relied on statutory interpretation in coming down with that decision. So what we can also do is where we have strong Supreme Court cases to be relying heavily on those, be and the statute, and then the regulations become more of a persuasive authority that you can still cite to and use, but are not the crux of your case.
And if we have a court that is less friendly, and where you have concerns, you could decide to perhaps rely a lot less on the regulations.
If you have a friendly judge, it could be an opportunity to get a rulings that deserve deference. And what we also have in Olmstead is an express statement that the Court need not rely on Chevron. They actually said that.
They were not relying on Chevron, because the integration mandate in the regulation met the Skidmore factors. And as Bob just explained about Skidmore, that survives Loper.
That seems to be a framework that this court is still on board with, as a way of analyzing when to give weight, even if not deference, to regulations. And we have Supreme Court language saying yup, this meets those Skidmore factors. This deserves weight in our decision. So I think we need to mimic that kind of reasoning and arguments in our briefing, and also in terms of how we think about bringing our complaints and alleging our claims.
Also as Bob noted Loper stated that it does not call into question the holdings in earlier cases that relied on the Chevron framework to hold that specific agency actions are lawful.
So I think there's been quite a bit of decision of what that really means in practice, given that Chevron has been overturned, but the Court went out of its way to say we are not throwing out all those cases if you have precedent in your circuit, in your district, those cases have not been overturned, even if they talk about Chevron and use a Chevron analysis in talking about the regulations.
So I think these are important arguments for us to be making, as well as repeatedly incorporating in our advocacy that this is not a Loper issue.
Loper is narrow.
If there is a clear statutory provision, a clear statutory mandate, clear intent of Congress, it's not a Loper case. And I think what we are going to see is that this is going to now be a default defense, right? So in all of our cases we're going to see it come up in a motion to dismiss.
We're going to see it raised on the motions for summary judgment.
It's going to come up in a lot of dispositive motions.
It's just a why not throw it in there, oh, hey also, they're relying on a regulation and that regulation no longer gets deference. So we're going to have to be prepared.
We're going to have to win those early cases so that they see this is not a useful argument for most of the regulations that we are usually citing to.
But it is something that we expect will come up. And as Amy said, we encourage you to reach out to anyone on this panel if you get that argument.
And we can spare you a lot of research and a lot of, you know, starting and developing these arguments from scratch. And as Kathryn will explain, and as Amy referenced in the Georgia case and many of our colleagues worked o we had our first chance to brief that already.
We have those briefs; we are working on compiling the resources and we are happy to help as well as provide amicus support because these early decisions are going to be critical to just cutting this off. It's not going to be a useful argument.
We need that to be held by courts several times and then I think it will fade away.
Similar to when the 11th circuit had to dismiss or rule on the issue of whether or not DOJ can actually enforce Title II of the ADA.
When that was pending all of a sudden in every Title II case the DOJ was bringing defendants all of a sudden said oh, yeah, they can enforce Title II.
But we got enough cases now that even if it comes up you can just cite to the weight of all the precedent, the Courts have dismissed this. This is no longer something you have to spend a long time briefing in detail. So I think that's the sort of key in practice.
Now, as Amy noted, we have unfortunately seen a huge wave of Loper Bright challenges to regulations, particularly Biden administration regulations that protect trans individuals. And it has come up in some other contexts too where we're seeing a lot of those challenges, and that includes 1557 of the Affordable Care Act.
What we are not seeing a lot of yet are challenges under Loper Bright expressly to the 504 regulations and the ADA regulations.
I think we may see more.
It may be because of all these really strong arguments that we've set forth that it's not coming up as often.
But the combination of Loper Bright and Corner Post coming out of the Court last June created a broader culture of regulatory challenge. And so what we are seeing are cases like Texas V. Becerra. And what Texas v Becerra is a case that has been brought by 17 states in a district court in Texas and led by the attorney general of Texas, seeking to invalidate Section 504 of the Rehabilitation Act.
The actual statute. And to do away with the updated Section 504 regulations that were usual issued by the department of health and human services, HHS, under the Biden administration.
And the way that they are going about this is by picking out primarily two regulatory provisions that have been used and weaponized frankly to then attack all of disability rights and to try to politicize issues that have long been by partisan or nonpartisan rights for people with disabilities.
They have focused on a single statement that is in the preamble.
It's not a single sentence, but a short discussion in the preamble, which is just an introductory background that's not a part of the regulation explaining the state of the law that courts have found, specifically the 4th circuit, that gender dysphoria may be a disability under Section 504 of the Rehabilitation Act.
That is simply a factual statement that's being used and manipulated and misrepresented and they are also focused a lot on the integration mandate. And this is something that is a serious concern and we'll talk more about in our workshop.
That this is becoming another area that they are trying to use as a way to walk back longstanding disability rights. And then they are using that to also challenge the entire statute while also making public statements to the press that they're not challenging the entire statute.
On February 19th they filed a joint status report, after stakeholders said the lawsuit would be dropped or they would withdraw and instead made clear they are continuing to pursue their claims including section 504 is unconscious tuitional.
The case is now stayed, that means it's on pause, and nothing is happening at the moment. It was approved by the Court.
They will be doing monthly status reports. And again for folks interested in this case, we also encourage you to reach out to those folks on this panel, all of whom are doing a lot of work to monitor this case, strategize around it. For folks in those 17 states and our workshop, we will talk some more about advocacy strategies that are being employed to put pressure on those AGs who should not be a part of this case and are attacking disability rights broadly.
I don't want to take up too much more time, but I will just end by saying that I think as we've explained, broadly speaking, the regulations under ADA and 504 are in very good position.
There are some that might be more vulnerable to being characterized in a way as not being as closely tied to those original 1977 regs, and we're going to talk more about those in our workshop.
I do think due to the current atmosphere following these cases, that bringing controversial claims like disparate impact are particularly dangerous right now, and are ones that are worth us talking more about, what the risks really are there?
And that could also come up with the forms of relying on the method of administration regulation, where we just are seeing courts that are more open to these challenges.
And we are seeing a lot of folks who are feeling emboldened to challenge our regulations and longstanding protections in a new way. So we look forward to having a lot more discussion on that but I want to turn it over to Kathryn.
(Applause)
KATHRYN: These guys are a hard act to follow and we are aware we have another hour with you. As to further discussion about the Georgia case in particular, because some of us are more familiar with that case, we're happy to spend time taking questions about it or talking about it in more detail in that workshop.
It's probably clear from everything you've heard, we'll say out loud that we do really need to be careful in the way that we consider Loper Bright and how it might affect both our existing cases and the ways in which we develop and frame new ADA initiatives, at least in the short term.
But I do want to underscore the message that I think you've heard today, that like other challenges we've had to navigate in the legal landscape, this is not an insurmountable one. And we have a lot of tools and arguments at our disposal, as you heard.
And by being really intentional and disciplined at every stage of our work, we think we can both mitigate potential vulnerabilities around these decisions and anticipate and be prepared to address future challenges.
Luckily we have a pretty fast-growing body of interpretive decisions to inform our strategic thinking about that. According to West Law I think as of last week I think more than 600 decisions have cited the Loper Bright case. Almost every circuit has some case giving extensive or significant treatment to the decision.
And those early opinions range across a wide variety of federal agencies, as you might expect and also deal with not surprisingly pretty esoteric statute requirements.
There's environmental rules as Bob mentioned frequently in the zone of ambiguity from the EPA or from the Department of the Interior, federal energy commission, the Department of Homeland Security, visa requirements, HHS's Medicare reimbursement just to name a few.
And what those cases, at least the circuit court opinions generally seem to show, kind of at a high level, is that courts are still engaging in independent readings of the statutory language at issue. Often with that kind of strict constructionalist approach that Megan mentioned believing there is one correct interpretation of the statute that courts are best positioned to determine.
But also frequently declining to imply Loper Bright when the statutory language on either is not ambition with us, or they feel the agency's interpretation was correct.
We also, or at least I've also seen some cases where the Courts have taken time to really examine and note where there is broad or express delegations of authority to the agencies and to factor that into their analysis in the way that Loper Bright suggests they should.
Also as illustrated by a recent 9th Circuit opinion, there are courts out there that are reaffirming the Loper Bright decisions directive to look to agencies interpretation for guidance which is important for all the reasons you heard discussed here.
That includes recognizing the agency's body of experience and informed judgment as something that should give those interpretations the power to persuade a court who's making a determination.
However, as you might have heard the panelists allude to and maybe seen yourself in looking at some of these cases, where courts are about the stare decisis language is a bit mixed. Some courts are continuing to follow Supreme Court and circuit court precedence that may have relied on the Chevron framework and others like a DC circuit court I saw noted that decisions with Chevron-like language, that afforded the agency substantial deference should no longer be credited under Loper Bright. So that's definitely an area to continue to watch.
There's been really very little application of Loper Bright in our disabilities space, with the exception of this G nuts case in Georgia that's already been mentioned.
And it's important to note there that because both of those companion cases, one brought by private parties and one brought by DOJ were already fully briefed on summary judgment, the defendants' efforts through a notice of supplemental authority to raise up Loper Bright as a barrier to those cases proceeding weren't particularly successful.
But not because the Court took a lot of time to analyze those arguments.
Those arguments were arguably inappropriate at that stage anyway.
But you can see a really good resource, as Megan said, both in the filings by the Department of Justice and in the opposition to that 28J notice by the private parties, how we can start to frame some of these arguments in the disability context in response to those issues.
I'll just close by mentioning four specific ways that we at the Center for Public Representation have been thinking about how to approach new ADA cases and complaints post-Loper Bright. Essentially really operationalizing the strategies you've heard here. So this will be a bit of a quick recap.
First, grounding all legal claims in statutory provisions and never relying solely on the regulations as a separate or independent legal count.
Second, when we describe defendants' legal obligations in the context of the statute, we want to make sure we're taking time and being very deliberate about including evidence of Congressional intent.
Fact-finding that's relevant and still entitled to deference even after Loper Bright, and any other evidence that demonstrates that the statutory language reflects specific Congressional judgments and is not ambiguous. To Megan's point about trying to take the Loper Bright argument off the table early, because that first step is not met.
When we do reference regulatory obligations, we think it's important to note, as you've heard, what authority was delegated to DOJ to promulgate and enforce those regulations.
There are a lot of very strong arguments to be made there. The consistency between those regulations under Title II and regulations developed as part of 504 and its legislative and statutory history.
And finally if you're citing to past interpretations of the statute or regulations, we're considering being very careful about the amount of space and weight that we devote to those sources. And we encourage you to think through that as well.
Including what conclusions you're asking the Court to draw based on that guidance. And to the extent you can, if you're relying on that guidance, we would suggest ways to emphasize ways specialize knowledge, the consistency of its interpretation over time and how other courts have found it persuasive.
That is essentially the Skidmore framework, the analytical framework and we suggest you do that with a focus on decisions that rely on their independent analysis of the statute.
Courts can still find, as you heard, these kinds of interpretations influential and persuasive and deserving of respect, and that's true even though the degree of deference that was available under Chevron is no longer part of our judicial landscape.
Questions and Answer Session
So I'll stop there so we have a few minutes for questions. I think we have about 8 minutes for questions. Sanho, is there a way you want to take questions with the audience?
SANHO STEELE-LOUCHART: In terms of questions, if people will say their name or say that they have a question, we have two mic runners. Those mic runners will come to you.
If they're coming toward you but they seem confused about where you are in the crowd, please make more noise for them so that way they can get to you faster.
ATTENDEE: In the past there used to be a part of the microphone in the middle but I guess this is part of the educational role which is to get people to run around.
ATTENDEE: Hi, everybody. This is Marisa the executive director for national legal professionals association.
I feel I guess in this moment; I feel for me a bit -- it feels a bit patronizing for us to deny that the sky may well fall for many disabled folks in many cases here, based on this decision. Around to not acknowledge that trans issues are our issues as well.
But I think while it's important for us to talk about the strengths in our arguments, it's also important for us to talk about the weaknesses that we might want to make sure that we're prepared for in those arguments and get ahead of them, including the fact that we have an administration in courts that don't seem to care about precedent or the law.
My big question are what your thoughts are on Title I of the ADA here, especially when we know in cases like Toyota, with the Supreme Court chomping at the bit to literally take down EEOC guidance, how we're feeling about that.
ROBERT DINERSTEIN: I'll start with regard to Toyota and also really true of the Sutton trilogy cases, as many of you Congress overruled in the 2000 amendments to the ADA. The frustration would actually seem to be the opposite. Which was in trying to define what the term "substantial limitation" might mean or what was a major life activity, the Court refused to look at regulations or reduce fused to look at legislative history and decided that the leg age wasn't ambiguous because Webster's defined the word "substantial.
" So if you think about it, the idea that -- no indication that any of the members of Congress actually read the dictionary. The idea that that would be a more authoritative source of an agency, whether you defer to it or not, was sort of bizarre.
But ironically now, again, it's sort of a piece with the fact that we can look at those cases not for their holdings, which we decry, but for saying there hasn't been this strong -- there isn't this sort of automatic reliance on situations even in situations where one would think that should have happened. And so, yes.
I mean, I look at these things kind of in that overall category of life of control what you can control. I think many of us probably feel very much at sea about things that are happening that we don't seem to be able to stand in the way of.
But there are some things we can do.
I think the whole point of the panel really has been to say, you know, if you see Loper Bright being cited against you, otherwise don't just go like that picture of the painting "The Scream", take a breath and think about there are some things that you can do.
I'm with you, I don't think any of us deny that this is part of a challenge to regulations. One theory we haven't mentioned, which is also very much out there, which is so H. Called unitary executive theory. The theory that says everybody in the executive branch works for the President.
I think we've seen some examples of that belief in the last few months. Among other things it's the why the theory under which, I guess, Trump thinks he is authorized to fire FTC commissioners or EEOC commissioners, people who are in independent agencies that are seemingly under legal protection.
To your point, will judges follow that?
Will judges say look you can't just assert this power?
It's up to us to try and make as many persuasive arguments as we can.
MEGAN SCHULLER: I want to speak to the other parts of your comments is, Loper Bright is being used to significantly challenge trans rights, to significantly challenge lots of regulations that are very important to all, many, if not all of us. And so the message is simply that for the 504 regulations, and the ADA regulations, Loper Bright was not in its actual analysis as damaging to those particular regulations as many of us originally sort of feared, and that we wanted to share why we've come up with all of these great arguments to work with the Loper Bright analysis.
But a case like Texas V. Becerra does not cite Loper Bright, does not rely on its analysis and is a significant threat and one we do want to talk more about and one that many of us are spending huge amounts of our time working on to make sure that we protect everybody's rights in the disability community.
And also people with disabilities are just people. And so setting aside whether or not gender dysphoria is a disability, which it has clearly been found by courts to be, it impacts people with a wide range of identities, and all of those are critical to all of our rights.
I had a question about, you know, what I've heard today is mostly defense. And I'm wondering about potential ways of using Loper Bright and corner stone in an offensive way. To say, for example, the giveaway in the 2020 ACA regs that says notwithstanding that all people with disabilities complained about having to fill out forms to have a guide dog or a service animal on an airplane. And you know the rationale was well, but it's only going to fall on the backs of people with disabilities and it will save the airlines a lot so we're going to do it, that under Loper Bright and corner stone, those should be set aside.
I'd like to hear thoughts on that, and possibly other ways that we could use these cases more offensively to say oh, so you think you don't like Chevron?
Okay.
ROBERT DINERSTEIN: Briefly. One of the things I think we said was one of the now what courts should be looking at in terms of how much reliance on regulations should occur is consistency with prior regulatory actions. And so some of the more outrageous moves recently jump out as being intentionally quite inconsistent with what had been well-established regulations.
I think an argument then is that it should be entitled to less influence for a court because of that changing and be seen as obviously political. So the idea that the regulations are not consistent with what the statute has been consistently thought to mean, I think is an important positive thing one can do.
Just to add real quickly, looking at some -- I'm by no means an expert on Chevron, but I've read enough cases to know that when a judge had some issue, he or she would say well I might interpret the law in X way, but the agency to which I must defer does it in Y way, so I'll defer to it. A little bit of passive/aggressive judging.
That's not available after Loper Bright, Roberts has said, you shouldn't be doing that, court. Courts understand and interpret statutes to do their job. I do think it raises a lot of questions about consistency of interpretations, going from agency on one hand to every court.
Again in the current atmosphere we're not looking at consistency, we're looking at disruption.
MEGAN SCHULLER: This is Megan. One other point on that, for example, I think when we talk about the 1557 provision of the Affordable Care Act, that was vulnerable before Loper Bright. Loper Bright could potentially be helpful in that it seems to give preference to regulations issued closer in time to the statute which could take us back to the Obama era regulations, as opposed to what might be new regulations that we're going to see coming out. And there's been a lot of going back and forth on that and it would still mean losing some things in the current Biden Administration regulations.
But I think we need to be thinking about those ways that we -- this is the decision, whether we agree with it or not.
We have to work with it, and we can also be thinking about ways that as new rule-making is likely to be coming out, that Loper Bright may be something that we will all be citing in challenges to those regulations. And using that Skidmore framework. So I think that framework and many of those arguments are the same whether you're defending a reg or challenging a reg and we should certainly be thinking about it in both ways.
And with Corner Post, the Bazelon Center has already challenged some practices that were discriminatory against people with mental health disabilities by the government, and Corner Post, you know, resolved any argument to be made about a statute of limitations issue there. So I think, again, there's nothing wrong with us thinking about ways that these cases can also be used in order to defend the rights of people with disabilities and challenge administration actions and rules.
ATTENDEE: My name is Bonnie, and I'm not a lawyer so my understanding of some of this is probably a little more shallow than some.
But I'm concerned about web accessibility and what the ramifications of Chevron, if any, might be for that. You know, when the ADA was passed, none of us really knew much. I don't think the worldwide web actually existed and technology wasn't really a discussion. So I'm wondering if you can comment on if Chevron has some potential problems or challenges to requirements for web and technology access.
SANHO STEELE-LOUCHART: This is Sanho. Before that answer comes in, I would just say that that will be the last question that we can take for this session, but then remember this is an upcoming session immediately after on the same topic in the same room.
CLAUDIA CENTER: This is Claudia. Can I try a quick answer? I think it's true that websites didn't exist in 1977 or for the 1984 regs or you know only the very beginnings in 1990.
I think we can say that the principles of the regulations that were incorporated by reference were that if you build something new, you build it accessibly. And if you have something with a barrier that's existing, then you remove barriers sufficient to include people with disabilities.
So in the context of websites, websites are updated regularly. And so they are essentially built and rebuilt constantly. And so that same principle of like when you build and alter things make it accessible, can be applied to the website rules. In terms of giving statutory hooks to the principles that are now in 504 and Title II for access.
AMY ROBERTSON: This is Amy. Everything Claudia said, but also we've spent a lot of time talking about these older regs that were incorporated by reference and yes. It is concerning and defendants love the argument that the web didn't really exist in '78 or 1990, but the delegation is still very strong and very broad to interpret the statute, number one.
And number two, the web regulations have an enormous body of research and notice and comment behind them. So I think you would also want to rally all of that to try to invoke Skidmore deference.
But when you're up against an originalist court who is going to tell you that the Internet didn't exist in the 1700s, this goes a little bit to Marisa's point it's a wild west atmosphere. It's like a horse in a hospital, you don't know what it's going to do.
There's a lot that we just don't know. The DOJ could try to withdraw the Title II regs and we'll have a whole different kind of fight. So we have these tools, this panel is about a specific set of tools, and we hope that you have learned a little about how to deploy them.
And the workshop will talk a lot more about how to defend the new regulations as well.
SANHO STEELE-LOUCHART: All right. Thank you to our panelists.