Are the Courts the Solution to Ensuring Disability Rights During the Trump Era?

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Commentary Human Rights

Are the Courts the Solution to Ensuring Disability Rights During the Trump Era?

Robyn Powell

As a disabled woman and an attorney, I am keenly aware of two things: Disability rights are facing significant threats under the Trump administration, and courts can greatly advance or hinder civil rights.

This week alone, we have witnessed numerous examples of the prejudice spread by President Donald Trump and his allies in the White House. In the wake of Trump’s Refugee and Visa Order, also known as the Muslim ban, the president spread falsehoods to a large crowd in Florida about refugees in Sweden. Trump refused to outright condemn anti-Semitism until he faced significant pressure, following a Jewish cemetery being vandalized and a fourth round of bomb threats targeting Jewish community centers. His administration has issued new immigration enforcement policies calling for increased deportations and withdrawn an Obama guidance aimed at preventing discrimination against transgender students.

These are devastating times for many in the United States, particularly those from historically marginalized communities. If you are, like me, trying to find a path forward in these uncertain and frightening times, you may feel defeated. After all, the president and his administration seem to actively oppose equality and civil rights. It really feels like we are in this alone. Despite all this, however, a landmark U.S. Supreme Court decision a few days ago reminded me not to give up hope entirely.

Indeed, the power of the judicial branch was demonstrated this week with the Supreme Court’s unanimous ruling in Fry v. Napoleon Community Schools. This case involved Ehlena Fry, a 13-year-old girl who was denied the right to bring her service dog, Wonder, to school with her. This case has endured for nearly six years. On Wednesday, the justices ruled that in some cases, such as Fry’s, parents do not have to pursue the lengthy administrative process outlined in special education law but can instead seek court enforcement under the Americans with Disabilities Act (ADA). Practically speaking, this decision means that students with disabilities and their families will be able to pursue accommodations faster.

Because of this case and Wonder, the very adorable service dog, I am feeling a small bit of hope again, something we all desperately need.

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As a disabled woman and an attorney, I am keenly aware of two things: Disability rights are facing significant threats under the Trump administration, and courts can greatly advance or hinder civil rights.

Trump has demonstrated complete disdain for the disability community. His real-estate properties have been repeatedly accused of violating the ADA. He has disparaged people with disabilities, such as Marlee Matlin, a Deaf actress, and he asked security to remove a 12-year-old disabled boy and his family from a rally after Trump supporters shoved the boy’s wheelchair.

The Trump administration is no better. His chief strategist, Steve Bannon, has a history of mocking people with disabilities as well as discriminating against disabled employees. Trump’s selection for U.S. attorney general, Jeff Sessions, also has a horrifying record of criticizing disability rights laws (laws that he is now supposed to enforce). Secretary Tom Price will likely undermine access to health care for people with disabilities and Secretary Betsy DeVos is very dangerous for students with disabilities.

So we can’t count on Trump to enforce disability rights, but can we count on the courts?

Throughout my three years of law school, I continuously learned that the judicial system is vital for protecting our rights from overreach by the other two branches of government, the legislative and the executive. In practice, I have learned that while the courts have remarkable power, that power can have mixed results.

Indeed, there have been numerous important cases—far too many to discuss—that have furthered the rights of people with disabilities. For example, the 1999 Supreme Court decision in Olmstead v. L.C. affirmed the rights of people with disabilities to live in their communities and ruled that unjustified segregation violated the ADA. A 2004 Supreme Court case, Tennessee v. Lane, ruled that people with disabilities can sue states for money damages in cases that involve their fundamental right to access courts. There have also been many decisions, such as the landmark 1982 Supreme Court case Board of Education v. Rowley, that have protected the right for students with disabilities to receive free and public education in the least restrictive environment.

Yet, the courts aren’t always a friend to the disability community. In fact, the ADA Amendments Act of 2008 was passed by Congress to preserve the intent of the ADA after the Supreme Court had significantly narrowed its scope.

The ADA Amendments Act is, indeed, a prime example of why we need three branches of government: When one branch severely undermined the importance of people with disabilities, another was able to remedy the issue. However, times are different. Although disability rights have traditionally been a bipartisan issue, the Republican-led Congress now appears much more concerned with pleasing the president. In just one example, in their pursuit of gutting the Affordable Care Act, Republicans have been silent about the harm it will cause disabled people.

So the Supreme Court may be our best bet for protecting disability rights—but will that change if Judge Neil Gorsuch is confirmed? Maybe.

Gorsuch, who is admired by the right, appears qualified and very conservative. Notably, both the American Civil Liberties Union and the Bazelon Center for Mental Health Law have issued statements opposing his confirmation based on his past rulings on disability rights cases. As a federal appellate judge, Gorsuch has participated in several decisions related to the ADA as well as special education. And, as noted by the Bazelon Center, Gorsuch has often ruled in favor of schools and employers. In sum, Gorsuch’s record suggests he has a very narrow view of disability rights laws.

Despite Gorsuch’s concerning record, however, the Fry decision leaves me somewhat optimistic. After all, that decision was unanimous, meaning both liberal and conservative justices agreed. So, even if Gorsuch was on the bench and dissented, the ruling would still be in favor of Fry.

If the election and Trump have taught me anything, it has been to expect the unexpected. What is clear to me is that disability rights, civil rights, Muslim rights, Jewish rights, immigrant rights, reproductive rights, LGBTQ rights, and the rights of people of color are all under attack. I don’t expect that to change from within the Trump administration or Congress. With two of the three branches opposing equality, our best bet appears to be the judicial branch. We are already seeing some evidence of that, with a federal appeals court refusing to reinstate Trump’s overarching, highly discriminatory Muslim ban.

As we try to survive the next four years, it is important that we actively pursue all means necessary for enforcing our civil rights. If the Fry case and the recent action against the Muslim ban are any indication, the courts may indeed be our best option. Maybe, just maybe, Wonder the service dog will deliver some much-needed wonder to all of us.