An Interview with Catherine Strode
State legislators have the opportunity to offer protection from abuse to individuals with intellectual and developmental disabilities. The House has passed a bill (HB17-1284) to create a state data system of past offenders. The bill now moves on to the Senate Judiciary Committee.
State Senator Irene Aguilar, the parent of an adult child with disabilities, is one of the bill’s sponsors. In an interview with Catherine Strode, she explains why this bill is one of the most important of the legislative Session for individuals with disabilities and why it is so long overdue.
[Read more…] about Check For Employees Serving At-Risk Adults
Local Control Argument Rejected by Restraints Bill Sponsor
An Interview with Catherine Strode
Three education bills have been strongly backed this session by disability advocacy groups. Two of them, a bill restricting corporal punishment in state schools and a bill restricting suspensions of young children, were Postponed Indefinitely. A central argument in each debate over the bills was ‘local control.’ House Bill 17-1276 prohibits prone restraints on students in Colorado public schools. It has passed out of the House Education Committee.
In an interview with Catherine Strode, the bill’s Republican sponsor, State Senator Bob Gardner, says he believes in ‘local control.’ However, he says it is not an argument that applies to the student restraints issue.
[Read more…] about Local Control Argument Rejected by Restraints Bill Sponsor
State Taps Marijuana Dollars to Attack Opioid Epidemic
An Interview with Catherine Strode
State Senator Cheri Jahn and the other sponsors of Senate Bill 17-193 have accomplished getting money from the state during an extremely tight budget year. In a unanimous vote, the senate has appropriated $1 million in marijuana taxes to establish a research center with the University of Colorado Anschutz Center for the prevention and treatment of substance use disorders.
Colorado’s mortality rate in drug overdoses has increased by 500 per cent over the past three years. In an interview with Catherine Strode, State Senator Cheri Jahn says the state’s drug epidemic is ‘out of control’ and credits her Republican colleagues for the bill’s passage.
[Read more…] about State Taps Marijuana Dollars to Attack Opioid Epidemic
Juvenile Justice Reform On Legislative Agenda
An Interview with Catherine Strode
Colorado could lead the nation in Juvenile Justice Reform if a bill to eliminate detention for youth ages 10 to 12 passes this session.
The bill, which passed out of the House Judiciary Committee unanimously, would eliminate the requirement for the Department of Human Services to place a youth in detention unless charged with a serious offense.
In an interview with Catherine Strode, the Republican and Democratic co-sponsors discuss why this bill is necessary and its potential of a positive impact on Colorado youth.
[Read more…] about Juvenile Justice Reform On Legislative Agenda
Bill Develops Discipline Strategies to Decrease Suspensions
An Interview with Catherine Strode
State Representative James Coleman (House District 7) is very proud that the education bill he is sponsoring has support across both aisles in the Colorado legislature. House Bill 17-1211 calls for a pilot program to provide educators with professional development in culturally responsive methods of discipline. In an interview with Catherine Strode, Representative Coleman says he was ‘appalled’ to learn over 7000 young children in preschool through third grade were suspended from Colorado schools last year. He adds most of those suspensions were disproportionately experienced by children of color.
[Read more…] about Bill Develops Discipline Strategies to Decrease Suspensions
What’s at Stake at the Supreme Court for People with Disabilities? Reviewing Judge Gorsuch’s Record on Disability Rights
By: Shira Wakschlag, Director of Legal Advocacy & Associate General Counsel of the Arc
On January 31, 2017, President Donald Trump nominated Judge Neil Gorsuch of the Tenth Circuit Court of Appeals for a seat on the U.S. Supreme Court. Judge Gorsuch’s confirmation hearing before the Senate Judiciary Committee is set for March 20. A close review of Judge Gorsuch’s opinions pertaining to people with disabilities reveals a jurist with an exceptionally narrow view of the protections offered by federal disability rights laws—an approach that has led to deeply troubling results for members of The Arc in the Tenth Circuit’s jurisdiction. While Judge Gorsuch is a staunch proponent of the inherent dignity of all human beings, including those with disabilities, during his tenure on the Tenth Circuit he has not been a champion for robust enforcement of disability rights laws that are so crucial to enabling individuals with disabilities to lead dignified lives in the community, free from discrimination.
In cases involving the Americans with Disabilities Act (ADA), Individuals with Disabilities Education Act (IDEA), the Rehabilitation Act, and the Fair Housing Act in which Judge Gorsuch authored the majority or concurring opinion, he almost always ruled against the plaintiff with a disability. Perhaps the most common thread uniting these opinions is Judge Gorsuch’s strictly textualist approach to interpreting laws. This approach leads him to frequently disregard legislative history and Congressional intent in favor of deciphering the “objective” meaning of the law’s text in a vacuum, ultimately resulting in very narrow interpretations of the protections guaranteed by federal disability rights laws.
For example, in Hwang v. Kansas State University (2014), the plaintiff, a professor who had been employed by the university for 15 years, requested to extend her 6-month medical leave for a finite period. Due to a cancer diagnosis and weakened immune system, she sought to avoid a flu epidemic that arose on campus. When her employer refused to make an exception to its 6-month leave policy, the plaintiff sued, alleging disability discrimination under the Rehabilitation Act. Judge Gorsuch found for the defendant employer on the grounds that, as a matter of law, a leave of more than 6 months was not a reasonable accommodation. In this opinion, Judge Gorsuch demonstrated a troubling view of disability accommodations in the workplace, implying that the plaintiff employee was seeking not to work and should therefore be funneled into the public benefits system rather than the workplace:
Ms. Hwang’s is a…problem other forms of social security aim to address. The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work—not to turn employers into safety net providers for those who cannot work.
Remarkably, Judge Gorsuch affirmed dismissal of the case prior to fact discovery, thereby precluding the plaintiff from the ability to present evidence. He also failed to engage in the individualized inquiry required in such cases, in conflict with U.S. Supreme Court precedent, guidance from the Equal Employment Opportunity Commission, and four other circuit courts (in addition to a prior conflicting decision within the Tenth Circuit). An amicus brief on behalf of several disability rights advocacy groups requesting a rehearing referred to the decision as “unprecedented.”
Another standout case is Thompson R2-JSchool District v. Luke P. (2008), in which Judge Gorsuch articulated an extraordinarily low standard for educational benefit that is now under review before the U.S. Supreme Court in another case arising from the Tenth Circuit, Endrew F. v. Douglas Cty. Sch. Dist. Re-1. In Luke P., the hearing officer, administrative law judge, and the district court found for the student, noting that the district had failed to provide a free appropriate public education as demonstrated by the student’s inability to generalize the skills he learned at school to settings outside of school. These decisions were based on the notion that this level of minimal progress towards IEP goals was not enough to constitute a meaningful educational benefit under the IDEA. Judge Gorsuch disagreed:
[A] school district is not required to provide every service that would benefit a student if it has found a formula that can reasonably be expected to generate some progress on that student’s IEP goals…Rather, [the IDEA] much more modestly calls for the creation of individualized programs reasonably calculated to enable the student to make some progress towards the goals within that program.
In finding for the school district, Judge Gorsuch rejected the plaintiff’s argument that the purpose of the IDEA, as stated clearly by Congress, was to help students with disabilities achieve more meaningful progress that led to a greater possibility of independent living. Despite legislative history to the contrary, Judge Gorsuch noted that independence was not an outcome-oriented guarantee of the law. In November, along with a large coalition of disability advocates, The Arc submitted an amicus brief before the U.S. Supreme Court challenging this same low standard employed by the Tenth Circuit in the Endrew F. case. In another IDEA case, A.F. v. Espanola Public Schools (2015), where Judge Gorsuch found for the school district, the dissenting judge noted that the outcome “was clearly not the intent of Congress and…harms the interest of the children that IDEA was intended to protect.”
Judge Gorsuch has also demonstrated a narrow view of class actions, a crucial tool for individuals with disabilities to enforce their rights in court. For example, in Shook v. Board of County Commissioners of County of El Paso (2008), Judge Gorsuch affirmed the denial of class certification to a group of plaintiffs alleging that jail conditions for prisoners with psychiatric disabilities violated the Eighth Amendment’s ban against cruel and unusual treatment. In so finding, Judge Gorsuch reasoned that it would be too difficult to craft appropriate systemic relief for the class as a whole given the variety of psychiatric disabilities represented in the class.
These decisions are more than just abstract discussions of legal theories – they have real-life consequences for The Arc’s constituents. In particular, Judge Gorsuch’s effectively pro-school district stance has been devastating for students with disabilities and special education advocates in the Tenth Circuit. Advocates from AdvocacyDenver (a chapter of The Arc), noted that the Luke P. decision was “seismic” for students with disabilities in Colorado, leading school districts to believe that they had a champion in the Tenth Circuit. This dramatically changed their approach to IEP disputes and empowered them to act to the detriment of students with disabilities under the belief that they would almost always prevail in court. Overall, advocates from the chapter noted that the Tenth Circuit offers some of the weakest protections for students with disabilities and their families in the country and that Judge Gorsuch’s decisions on the IDEA have had deeply problematic results for special education advocates and students with disabilities in Colorado.
On the other hand, Judge Gorsuch, like The Arc, is a staunch opponent of physician-assisted suicide. While he has not yet addressed this issue in court, Judge Gorsuch authored a 2006 book, The Future of Assisted Suicide and Euthanasia, in which he notes that: “[a]ll human beings are intrinsically valuable…any line we might draw between human beings for purposes of determining who must live and who may die ultimately seems to devolve into an arbitrary exercise of picking out which particular instrumental capacities one especially likes.” Among other reasons for his opposition, Judge Gorsuch links the practice to the history of societal devaluation of people with disabilities embodied by the eugenics movement, flagging the inherent risk for abuse the system poses for people with disabilities.
Judge Gorsuch’s views on this subject and his recognition of the inherent dignity of people with disabilities reflect an important area of common ground. The question is whether his jurisprudence will ever link this belief in inherent dignity with a robust protection of rights that is so crucial to the ability of people with disabilities to learn, work, and lead dignified lives in the community among their peers. During his tenure on the Tenth Circuit, the answer to this question has largely been no.
More information about Judge Gorsuch’s majority and concurring opinions relating to disability rights can be found here.
This article was originally published on the blog of The Arc, AdvocacyDenver’s national parent organization.
AdvocacyDenver Partners with Comcast to Air Two Public Service Announcements
AdvocacyDenver’s Public Service Announcements are airing on COMCAST to celebrate our HealthMatters and Yoga 4All Abilities classes.
Many thanks to the COMCAST production team, the Dahlia Campus for Health and Well-Being, Mudra Yoga Studio, and our “star” students!
Watch the videos below:
[Read more…] about AdvocacyDenver Partners with Comcast to Air Two Public Service Announcements
Colorado’s Communities Support Bill To Decrease School Suspensions
An Interview with Catherine Strode
The House Education Committee will hear testimony today on a bill to reduce the number of school suspensions and expulsions of young children in Colorado’s public schools. Data presented by the Colorado Children’s Campaign has shown children in minority populations and children with disabilities face disproportionate disciplinary actions, specifically suspensions and expulsions.
The sponsor of House Bill 17-1210, State Representative Susan Lontine, says the ultimate goal of the bill is to close the achievement gap of children in minority populations and explains the bill’s broad community support.
In interviews with Catherine Strode State Representative Lontine explains how the bill can impact educational disparities in Colorado; and the Vice President of Early Childhood Initiatives for the Colorado Children’s Campaign, Bill Jaeger, explains the suspension data.
[Read more…] about Colorado’s Communities Support Bill To Decrease School Suspensions
Republicans’ Bill Would Put TABOR Change On Ballot
An Interview with Catherine Strode
Two Republican legislators are proposing a change in the TABOR formula that would allow the state to retain more taxpayer dollars. State Representative Dan Thurlow (R-55) and State Senator Larry Crowder (R-35) are co-sponsoring House Bill 17-1187, which defines a change in how the excess state revenues cap is factored. If the bill passes, it will go before the voters for approval in November. In an interview with Catherine Strode, State Representative Dan Thurlow says if the bill passes, and voters approve the measure, it would alleviate state budget crises.
[Read more…] about Republicans’ Bill Would Put TABOR Change On Ballot
Coming Events: Protecting Children’s Futures, a Presentation by Betty Lehman of Lehman Disability Planning
AdvocacyDenver and Denver Public Schools invite Parents, Special Education Teachers and Community Providers to:
Protecting Children’s Futures
a Presentation by Betty Lehman of Lehman Disability Planning
March 14, 2017
6-8:00 p.m.
DSST Stapleton High School
2000 Valentia Street
Topics: Disability and Financial Planning and Legal Considerations, ABLE Accounts Update!
Information: Pamela Bisceglia
Pbisceglia@advocacydenver.org
(303) 974-2526
AdvocacyDenver y las Escuelas Públicas de Denver invitan a padres, maestros de educación especial y proveedores comunitarios a
Proteger el Futuro de los Niños
una presentación de Betty Lehman de Lehman Disability Planning
14 de marzo 2017
6-8 p.m.
DSST Stapleton High School
2000 Valentia Street
Temas: La Discapacidad y Planificación Financial y las Consideraciónes Legales, Cuentas de la Ley “ABLE”
información: Bob McGill
bmcgill@advocacydenver.org
(303) 974-2532