Before moving on to the post of the week, you will notice that the blog has a new look and feel. I upgraded the blog so that it is better able to be used on mobile devices and more importantly the upgrade increases its ability to be accessible. Besides the look, you will see that everything is in the same place. So, users should not be concerned. Now onto the blog entry of the week!
With Donald Trump’s election to the presidency of the United States, the legal blogoshere has lit up with what might you expect from a Trump administration with respect to whatever specialty the blogging lawyer has. So, I am going to jump on that bandwagon.
First off, we don’t know what tone a Trump administration will take with respect to the rights of persons with disabilities. His record was such that he fought hard against ADA suits filed against his businesses, and then there was the reporter episode. That said, he might argue that more businesses should fight hard against ADA suits when necessary, and he has argued that the reporter episode was misconstrued. So, what follows is pure speculation on my part. That said, if one were to speculate using the principle that President Trump would be all about business-small and large- and what is best for business is good for everyone else, you could extrapolate certain things from that. Of course, this is a gross oversimplification, and again, we simply do not know the direction a Trump administration will go. Nevertheless, what follows is some food for thought:
- The Department of Justice pushed back its Title II and III regulations with respect to what constitutes an accessible website. I think those regulations are likely dead in the water. I have seen defense lawyers argue that the regulations are needed to create certainty for their clients. However, I think certainty is overrated in this situation. The standard for title II and title III is meaningful access. Being a businessperson, a President Trump might decide that it is better for businesses to have maximum flexibility to figure out how to allow its customers meaningful access to websites rather than hamstring businesses by complicated regulations. Sure, that might lead to lots of individual litigation, but the counter argument to that is that the ADA was meant to deal with individual situations. It also leads to the question as to what a Department of Justice in a Trump administration might insist upon with respect to settlement terms vis a vis the standard to use for Internet accessibility, assuming they elect to get involved in that kind of litigation in the first place.
- The Department of Justice and disability rights advocates have gotten very aggressive with respect to Olmstead enforcement where states are doing things with their budget that increase the risk of persons with disabilities being institutionalized. Whether the Supreme Court ever envisioned Olmstead being used in that way, as a sword, is something we discussed here. It is possible that a Trump administration would move away from enforcing Olmstead this way and just focus on situations where persons with disabilities are in institutions and are looking to get served in the community. I suppose it is also possible that they might argue in friends of the court briefs that it is not proper for disability rights advocates to use Olmstead as a sword.
- A Trump administration might get out of the title II enforcement business altogether per this blog entry.
- I recently read that there was a committee of folks working on updating the Air Carrier Access Act regulations to see if an agreement cannot be reached by all the parties. I read that if the process broke down, proposed regulations might be in the offing. The election of President Trump changes the bargaining dynamics so that the airlines might conceivably try to drive a harder bargain with respect to how far they want to go to accommodate persons with disabilities. For example, airlines might insist on narrowing just what kind of animals can accompany a person with a disability on the plane.
- One wonders if the affirmative-action regulations for persons with disabilities put out by OFCCP will even be defended by a Trump administration. The thinking being that such rules and regulations are too onerous for business and in any event, may not be defensible per this blog entry.
- With respect to architectural barriers and title III of the ADA, one wonders if a Trump administration would not get behind an effort to require notice to the business before being allowed to proceed with a title III architectural barriers action in the courts. California recently passed such a law. Since California did such a thing and California voted overwhelmingly for Hillary Clinton, that might give a President Trump cover for such a law. Whether President Trump chooses to use up political capital to enact such a law is anyone’s guess, but it makes sense that a Trump administration would look favorably on such legislation.
- There will be a new Supreme Court Justice, and it will not be Merrick Garland. Impossible to say what a new Justice would do with respect to the rights of persons with disabilities. Keep in mind, that when it comes to persons with disabilities, with rare exception (see next paragraph), Justice Kennedy has not been the swing vote on close decisions involving the rights of persons with disabilities.
- An area that Justice Kennedy will definitely be a swing vote on with respect to the rights of persons with disabilities is in the area of causation outside of the retaliation context. As discussed in this blog entry, there may be room for argument as to what is the standard for causation with respect to disability discrimination claims outside of the retaliation context. Scalia and Kennedy, the Kennedy view discussed here, may have been coming from very different views on that. President Trump is on record as saying that he wants a Justice in the mode of Scalia, but of course that doesn’t mean such a Justice will always follow what Justice Scalia would have done.
- Would a President Trump Department of Justice ask the United States Supreme Court to attack head-on just what are the obligations of the police when it comes to dealing with persons with mental health issues, as discussed in this blog entry.
- President Trump wants to repeal the Affordable Care Act, though he wants to keep the pre-existing condition coverage mandate and the ability to cover children 26 years or younger. That has two implications. First, the Affordable Care Act has requirements for data collection with respect to patients with disabilities. Second, the effective communication rule in the Affordable Care Act goes beyond what the Rehabilitation Act requires by adopting the effective communication regulations for title II of the ADA as the standard.
- Might a President Trump administration be receptive to claims that title II of the ADA goes beyond the enforcement clause of the equal protection clause or as incorporated into the due process clause? (See this blog entry for example).
- Not sure what a President Trump administration would do with respect to how far a school has to go to meet its obligation under IDEA, a case currently pending before the United States Supreme Court.
- Republicans for years have talked about getting rid of the Department of Education. Hard to believe they could pull it off. If it is possible, that would have huge ramifications on disability advocacy with respect to students discriminated against by educational institutions. While I don’t feel the need to exhaust administrative remedies with respect to the Department of Justice (process takes too long and Department of Justice involvement too uncertain), I do believe that exhausting administrative remedies with the Office of Civil Rights of the US Department of Education whenever possible is very valuable. Even if the Department of Education is not eliminated, one wonders what priorities the Office of Civil Rights will have in a Trump administration.
- The transgender case currently before the United States Supreme Court with respect to bathrooms has huge implications in the ADA arena. The issue there is just how much deference should be given to guidances from agencies that do not go through the rulemaking process, an issue we discussed in this blog entry. On the one hand, President Trump has said that he doesn’t much care what bathroom a transgender person uses. On the other hand, just how far regulatory agencies can go outside of the rulemaking process has profound implications for business, and it is unclear which way that goes. That is, such actions could be argued as in need of policing, but on the other hand, they do help bring some degree of certainty for clients. Expect the new Supreme Court Justice to play a critical role in answering this question.
Again, all of this is pure speculation and is certainly based upon insufficient information. Nevertheless, wanted to throw it out there as food for thought as lawyers are always trying to anticipate the future for their clients.