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The Disability Docket

July 26, 2023

Profs. Jasmine Harris and Karen Tani L’07, PhD’11 have published a pathbreaking paper that highlights the disability through-line in the Supreme Court’s recent cases.

Today marks the 33-year anniversary of the enactment of the Americans with Disabilities Act (ADA), a pivotal law that protects people with disabilities from discrimination. A new article, “The Disability Docket,” urges the public to recognize how vulnerable this population nonetheless remains, as well as how tightly their interests are tethered to other marginalized groups that hope to protect and enhance their civil rights in the Roberts Court era.

The article is co-authored by University of Pennsylvania Carey Law School Professor of Law Jasmine Harris, Seaman Family University Professor Karen Tani L’07, PhD’11, and Shira Wakschlag, Senior Director of Legal Advocacy & General Counsel of The Arc of the United States, and it applies a “disability lens” to the Supreme Court’s 2021 and 2022 Terms, making the case that more legal areas would benefit from this perspective.

“During the last year, the Supreme Court has received a lot of attention for its radical reshaping of some facets of American law, but disability is a through-line that hasn’t been traced—even though a number of cases grew out of disability-related disputes,” said Harris.

In writing the article, Harris, Tani, and Wakschlag aim to help the American public understand the significance of disability-related cases to important debates about inclusion and resource distribution, as well as to show how non-disability cases may disproportionally impact people with disabilities.

Published in the American University Law Review as part of a symposium on “equal justice under law” in recent and current Supreme Court terms and drawing on insights from disability legal studies and from the trenches of disability advocacy, the article begins by explaining what it means to apply a “disability lens” to the Supreme Court’s docket and why it is worth doing so.

“The core claim is that a disability lens allows us to see themes or patterns that are not otherwise visible,” Tani said. “With a fuller picture, we are better able to make sense of the Court’s handiwork.”

The article goes on to make three main interventions. First, the piece delves into the disability-related cases that have been a vehicle through which the Court has retrenched civil rights more generally. The authors argue this is not a new phenomenon, but it is “strikingly visible in recent cases,” such as the damages case Cummings v. Premier Rehab Keller, P.L.L.C.

Second, the authors explain how several cases that are not about disability are likely to have powerful effects on disabled people, including high-profile, high stakes cases such as Dobbs v. Jackson Women’s Health Organization and West Virginia v. Environmental Protection Agency.

Third, the authors emphasize why the current Supreme Court is a dangerous place for cases that do invoke disability law.

“Savvy disability rights litigators, in concert with disabled communities, have sometimes found ways to avoid unfavorable outcomes through community organizing efforts and strategic communications,” the authors explain, referencing cases such as CVS Pharmacy Inc. v. Doe. But in other situations, that kind of strategizing does not occur, or is not effective. Those situations may be “cause for alarm.”

The authors conclude by flagging the Court’s grant of certiorari in Laufer v. Acheson Hotels, LLC, a disability-related case that could do wide-ranging harm to civil rights enforcement.

The case raises the question of whether a civil rights “tester” has Article III standing to challenge a hotel’s failure to provide information about the accessibility of the hotel on its website, even if the person never intended to book a room or stay at the hotel. The case has implications beyond access for disabled people because it invites the Court to review long-standing precedent regarding tester standing in the context of racial discrimination in housing. Moreover, because testers play such an important role in the enforcement of civil rights laws, much is at stake. In this way, the now-pending Laufer case epitomizes the article’s main point: “the ‘disability docket’ matters for disabled people seeking access, inclusion, and remedies for harm, but it also has wider implications.”

“There has been so much attention on the Supreme Court lately, given its pathbreaking decisions on abortion, affirmative action, and other high-visibility issues,” Harris notes. “But mainstream accounts have still tended to treat disability as a niche issue. We hope this article encourages people to resist that tendency.”

Read the full paper.