Massachusetts changed the words. Now it must defend the rights.
Massachusetts changed the words. Now it must defend the rights.
We’ve passed an important law in Massachusetts, but I’m finding it hard to celebrate.
After years of effort, disability advocates have finally won the fight to eliminate archaic and offensive language from our state laws. The words “mentally retarded,” once used as a medical diagnosis but now considered a slur, no longer appear in the laws of Massachusetts. The words “hearing impaired” have been replaced by the more accurate and less biased “deaf or hard of hearing,” and language has been changed throughout the laws to replace the phrase “handicapped person” with “person with disabilities.”
While the state is working to align our written laws with modern standards in an attempt to signal virtue and a new dedication to disability issues, I am watching as the federal infrastructure around disability crumbles. The systems supporting people with disabilities on a federal level are being destroyed, and the consequences are rolling toward the states like a tidal wave. Will we be ready to meet that wave in MA?
All across the US, federal programs that enable people with disabilities to live in the community are being slashed. ICE is deporting and imprisoning thousands of people with disabilities, and tearing apart crucial support networks that include PCAs and nurses, who are either being detained or are staying home from work for fear of deportation.
The recent attacks on the Department of Education will have serious effects on students with disabilities. Special education programs that serve students with disabilities are being moved under the authority of the Secretary of Health and Human Services, RFK Jr., an anti-vaxxer and ableist who doesn’t believe our children should grow, learn and thrive through their challenges. The entity within the Department of Education responsible for civil rights complaints has also shifted oversight--to the Department of Justice. This means that any complaints of discrimination against students will be moved under the authority of a department that just released a memo stating “segregation is not discrimination,” and challenged the rights of people with disabilities to remain in the community.
That memo was released last week by the Department of Justice in reference to Texas vs. Kennedy, an ongoing lawsuit involving several states suing the federal government, claiming that the Olmstead decision which enshrines the right of people with disabilities to receive services in the “least restrictive environment,” is unlawful and tramples states’ rights. This suit has been in litigation since the previous federal administration--it was formerly called Texas vs. Becerra (the former head of HHS before RFK Jr.). A few weeks ago, the Department of Justice released a memo for “guidance” on the lawsuit.
This memo is dangerous not only to the disability community, but to all of us. Based as it is on dissents from settled court cases, it should have no bearing on our current civil rights law. However, it is a bright red warning flag coming from the DOJ. It lays out the roadmap for the continued rollback of civil rights law.
The DOJ has already been attacking the concept of “disparate impact”—unintentional discrimination that happens when a single rule applies unevenly to different groups, rather than rules specifically applied to discriminate against one group in particular. With the rollback of disparate impact, discrimination cases would have to prove intent to discriminate, rather than just pose discriminatory outcomes. Disparate impact has been settled law, embedded in our civil rights for decades, but the current federal administration is choosing to ignore the laws and set forth guidance that fosters blatant discrimination.
In this memo, the DOJ takes things a step further, claiming that segregation is not inherently discriminatory. They posit that some people’s disabilities make it impossible or “unreasonable” for them to live in the community, and therefore confining them to institutions is not discriminatory. As much as I hate the slippery slope argument, this feels like a slippery slope to me—the DOJ’s claim that people with mental health conditions should be institutionalized for their own good allows the department to claim that anyone they can diagnose with a mental health disability SHOULD be institutionalized.
As it currently stands in federal civil rights laws, including Olmstead, institutionalization should be a last resort. Removing someone’s basic rights to live in the community, through guardianship or institutionalization, should not ever be done lightly. The federal administration is trying to narrow the rights of disabled citizens—taking away your right to live independently, to engage in your community, to receive a free and appropriate public education, regardless of disability. Many people with disabilities who are immigrants, or those who are queer are already being taken to detention centers, and they are being denied eligibility for housing assistance and shelters.
This slow creep restricting our civil rights cannot be ignored. Though these threats come from the federal level, it’s the job of our state to protect its residents. We applaud Massachusetts for taking steps to change the language to be more inclusive and respectful of people with disabilities, and we ask: Is MA ready to stand by disabled residents and our independence, protecting the vulnerable even as their funding and rights are under attack by the feds, or is the archaic language law just virtue signaling?
Links to learn more:
https://dredf.org/this-isnt-reform-its-abandonment-plain-language/
https://dredf.org/protect-504/
https://www.justice.gov/olc/media/1446701/dl