Gorsuch & Such

Multiple people have weighed in on the pros and cons of Tenth Circuit Judge Neil Gorsuch, President Trump’s nominee to fill the vacant Supreme Court seat left by Justice Antonin Scalia. For years, I’ve attended Federalist Society meetings, and am generally in favor of judicial restraint. However, strict constructionist justices have generally jeopardized the status of disability rights. The intent of this post is to evaluate some of Judge Gorsuch’s opinions in order to anticipate how disability rights may fair should he be approved by the Senate.

Adversaries of Gorsuch’s nomination have been outspoken, particularly in the realm of his previous decisions involving IDEA. As the Bazelon Center reports, Gorsuch has interpreted IDEA extremely narrowly, holding that the law merely requires “the creation of individualized programs reasonably calculated to enable the student to make progress towards the goals within that program….” Thompson R2-J School District v. Luke P., 540 F.3d 1143, 1155 (10th Cir. 2008). More importantly, Gorsuch writes that the standard is “not an onerous one.” Id. This opinion, and others like them, are concerning because it sets a low standard of achievement for students with disabilities. The bare minimum is acceptable, as opposed to fulfilling the full academic potential of the student.

Titles I and II of the Americans with Disabilities Act (and employment-related provisions of the Rehabilitation Act) are other areas in which Judge Gorsuch has routinely ruled against people with disabilities. Perhaps the opinion most routinely cited by Gorsuch critics is Hwang v. Kansas State University. This case involved a professor with cancer, who took a leave of absence to recover from treatment. When the professor was scheduled to return to work, there was an outbreak of the flu at her University. Her doctor recommended an additional period of leave, so as not to jeopardize the professor’s immune system further. This recommendation was denied by the University. Judge Gorsuch opined that a six-month period of leave policy was more than adequate to meet the needs of qualified persons with disabilities, as opposed to requiring the University to determine the particular needs of each individual with a disability. More troublingly, Gorsuch essentially recommends that the professor receive welfare benefits rather than pursue employment, given her situation.

On the other hand, Judge Gorsuch offers hope to the disability community in another very important area: assisted suicide. In 2006, he wrote The Future of Assisted Suicide and Euthanasia, in which he avers that “[a]ll human beings are intrinsically valuable.” Although education and employment are important to people with disabilities (as they are for all people), there is a mounting movement toward assisted suicide, which undermines the value of life with disability, in particular. While I am disturbed by some of Gorsuch’s opinions regarding the government’s role in preserving education and employment rights, it is my right to life that concerns me most today.

Therefore, I think the Gorsuch nomination is a mixed bag for the disability community, despite many on the left clamoring for nay votes. It seems to me the calls to block his nomination from proceeding are silly; his reputation, both academic and professional, is impeccable, and his judicial philosophy is within the mainstream of acceptability. Instead, time would be better spent working on disability rights legislation that is less open to judicial interpretation.

Bound and Gagged?

Yesterday evening, a terrible story broke: a white 18-year-old, described as “having mental health challenges,” was kidnapped in a stolen van by four African-American young people and tortured. The victim was sworn at (“fuck white people” and “fuck Donald Trump”), physically assaulted until he bled, and forced to drink toilet water over a period between 24 and 48 hours. It’s difficult to imagine, but for the actual footage the assailants broadcasted on Facebook. Absolutely sickening.

You’d think that organized minority groups, and justice arms of the government, would come out strong against this behavior. After all, these are the entities that clamor for hate crimes legislation and are supporting one another on the eve of Trump’s assuming office. I expected to go on my own Facebook account and see my liberal friends sharing the story, condemning the unjustifiable behavior of the assailants that demonstrably victimized someone on the basis of his disability and his race. To date, only one of my 900+ Facebook  friends registered as a Democrat has expressed disgust at the story.

Okay, I reasoned. My friend who posted the story is a fellow disability rights attorney. Maybe people simply haven’t heard about the victim and his torture. Not so. I believe they simply fail to see the depravity in the actions. Why? CNN host Don Lemon plainly stated – and then repeated – “I don’t think it’s evil.” Police Commander Kevin Duffin stated, “Kids make stupid mistakes.”

So… Because the perpetrators hated Trump, like their liberal comrades, taking a disabled man, binding and gagging him, and torturing him for hours upon hours, their actions might be justified? Or, at least, understandable? Fathomable? Logical? This boggles my mind!

Speak out, liberal friends. Unlike this tragic victim, you’ve not been bound and gagged – use your voice and condemn this violence!

EEOC’s New Affirmative Action Rule

Today the Equal Employment Opportunity Commission (EEOC) published its final rule on Affirmative Action for Individuals with Disabilities in Federal Employment. It becomes effective 60 days from publication, and its provisions are applicable beginning January 3, 2018. Indeed, federal employees with disabilities – and federal job seekers with disabilities – have some great things to look forward to!

Most importantly, the rule adds two significant requirements to the administration of the Rehabilitation Act. First, those federal employees with targeted disabilities requiring personal assistance (PA) services for work and work-related travel can receive them from their employing agency as a reasonable accommodation. This is huge! People with significant mobility disabilities may now be able to use the restroom at work, eat lunch, and have someone put their coat on before they leave for the day. Importantly, the EEOC expects federal agencies to even provide PA services outside of the agency’s infrastructure for those individuals telecommuting.

I would feel a bit strange about my employer being involved in my toileting routine. Fortunately, the EEOC specifically notes that when hiring a PA service provider, the agency shall “give primary consideration to the individual’s preferences to the extent permitted by law.” This means, for example, that if a female employee with a targeted disability only feels comfortable with the assistance of another female, the agency must consider this request. I am grateful to those submitting comments to the EEOC regarding the intimacy of the relationship between a PA service provider and the recipient of those services.

Second, the EEOC is requiring federal agencies to take specifically-designated steps toward hiring more people with disabilities, and particularly those with severe disabilities. (It should be noted that the EEOC specifically refrained from using the word “severe,” after a commentor indicated the lack of political correctness. You’ll get no political correctness from this crip; consider my succinctness a reasonable accommodation for exhausted vocal muscles.) Specifically, the final rule mandates that the following steps be taken to increase the hiring advancement of those with disabilities:

  • Programs and resources should be used to identify applicants with disabilities;
  • Contracting with disability organizations, including vocational rehabilitation programs, centers for independent living, and employment networks;
  • Ensured availability of sufficient personnel to answer disability-related questions;
  • Creating a plan of action to ensure that disable employees have opportunities for advancement, including information about training opportunities and/or a mentoring program;
  • Inclusion of disability within the agency’s anti-harassment policy and training materials;
  • Adoption of easy-to-understand and easily-available reasonable accommodation policies and rights to accessible technology;
  • Guarantee that the agency evaluate its entire budget when determining whether a reasonable accommodation would constitute an undue hardship; and
  • Provide applicants or employees with a written notice (in an accessible format) of why a reasonable accommodation was denied, along with instructions on how to file a discrimination complaint and appeal.

How’s that for being a model employer?! Any guesses on when we can expect the private sector to get on board?

Indiana Primary and the Traveling Board

Thus far, I’ve been mum about the Indiana primary coming up on Tuesday. This  election season has been strange, turbulent, and intense. I’ve been hesitant to “endorse” any candidate, partially because I don’t want to be accused of racism, stupidity, or any other negative label I don’t believe truly applies. It’s also the case that no candidate particularly supports the comprehensive package of policies I believe is in American interests. Nevertheless, I did choose a Republican presidential candidate and cast my vote for him yesterday.

lv-voted-1

Now, politics aside, my absence from this blog for the last several weeks is due to the fact that I broke my femur and radius on April 16. (Putting together comprehensible sentences is tough, whether the painkillers have kicked in or I’m dealing with the pain.) I began freaking out, worried about getting to my polling place with a ridiculous leg immobilizer. Fortunately, I found out about the Traveling Board.

Of course, voters that cannot go to their polling place have several options.  Many counties permit people to vote early, sometimes at multiple satellite voting locations. Another popular option is the absentee ballot, which I used to vote when studying for a semester in DC in college. However, both of these options are tough for me – I need transportation to an early voting site, and I need a trusted individual to stick my absentee ballot in the mailbox before the deadline. The Traveling Board is an awesome option because people bring the ballot to your home and take it back with them.

A gentlemen and lady came to my home at the scheduled time – 4 PM, right on the dot – and brought a clipboard, ballot, and pen. They helped me position the ballot just where I needed it and were quite nice. In fact, they even brought me a sticker for voting!

I hope my fellow Hoosiers all vote this Tuesday. With the range of options available to us, there are no excuses for escaping your civic duty!

The Left Advocates Discrimination on Basis of Disability

Last week Indiana Governor Mike Pence signed House Enrolled Act 1337 into law. Pro-abortion advocates on the left instantly began howling that Pence, a cold-hearted Republican, is encroaching on women’s rights. However, many of the same advocates refused to acknowledge that the Act forbids discrimination on the basis of disability. Indiana Code 16-31-2-1.1(1)(K) now provides:

That Indiana does not allow a fetus to be aborted solely because of the fetus’s race, color, national origin, ancestry, sex, or diagnosis or any potential diagnosis of the fetus having Down syndrome or any other disability.

Those on the left argue that Pence and fellow Republicans are using these protected classes to further their agenda, without actually caring for members of those classes. To their credit, I don’t know that parents traditionally opt for abortion based on factors like ancestry. However, mothers do regularly abort fetuses with diagnosed disability.

The numbers are startling. For example, 87% of fetuses diagnosed with Down syndrome are aborted.  Another site puts the number at 92%.  If this is not obvious discrimination against the disability community, I don’t know what is. And I am horrified that local disability organizations are more interested in pushing a liberal agenda then celebrating steps taken by the General Assembly to reject eugenic ideals.

Many expect that the new law will not stand up to judicial scrutiny. We shall see.  But I am jubilant that Indiana, the first state to adopt eugenics laws, is now on the forefront of protecting disabled fetuses. (I’m experiencing a bit of schadenfreude, too, now that liberals have been cornered into choosing which traditional voting block – e.g., fertile women or people with disabilities – to which they will pander.)