The Arc Applauds Supreme Court’s Decisive Rejection of Texas’ “Wholly Nonclinical,” “Outlier” Standards in Determining Intellectual Disability

by The Arc

By: Shira Wakschlag, Director of Legal Advocacy & Associate General Counsel
       Ariel Simms, Criminal Justice Attorney Fellow

In decisively rejecting these “Briseno factors,” the Court embraces the standards-based approach in determining intellectual disability for which The Arc has long advocated. When it comes to matters of life and death, there is simply no room for courts to ground their determinations of intellectual disability in outmoded and baseless stereotypes.

On Tuesday, in the third decision in favor of people with disabilities in the Supreme Court this term, the Court issued a 5-3 decision authored by Justice Ruth Bader Ginsburg in the death penalty case Moore v. Texas. The opinion rejects Texas’ use of stereotypical and outdated factors—rather than well-established clinical standards—to determine intellectual disability in death penalty cases on the grounds that they “create an unacceptable risk that persons with intellectual disability will be executed.” This is a major victory in protecting the rights of individuals with intellectual disability in the criminal justice system and in fulfilling the promise of two Supreme Court cases setting the standard that execution of people with intellectual disability is unconstitutional (Hall v. Florida (2014) and Atkins v. Virginia (2002)).

In Atkins, the Court held that executing defendants with intellectual disability violated the Eighth Amendment’s ban on cruel and unusual punishment. Subsequently, in Hall, the Court rejected an arbitrary cutoff for IQ scores in making the intellectual disability determination and emphasized the importance of courts consulting clinical standards in their analysis. While the Court’s prohibition of the execution of defendants with intellectual disability could not be clearer, some states continue to define intellectual disability in a manner that significantly deviates from clinical standards, resulting in a miscarriage of justice for many defendants.

In this case, Bobby Moore, was convicted of killing a store clerk at the age of 20 in a botched robbery along with two accomplices. He was sentenced to death and challenged that sentence on the grounds of intellectual disability. In 2014, a state habeas court ruled that Moore did meet the criteria for intellectual disability and recommended that the Texas Court of Criminal Appeals (CCA) reduce Moore’s sentence to life in prison or grant him a new trial on the intellectual disability claim. On appeal, however, the CCA ruled that Moore did not meet the criteria for intellectual disability, finding that the lower court had failed to apply the seven-factor test laid out in an earlier Texas opinion, Ex Parte Briseno. The “Briseno factors” rely on stereotypes—rather than clinical definitions—through “the consensus of Texas citizens” in defining intellectual disability and are partly based on the character of Lennie in John Steinbeck’s Of Mice and Men. Using these factors, the CCA found that, among other things, Moore’s ability to live on the streets, mow lawns, and play pool for money precluded a finding of intellectual disability and disregarded several IQ tests Moore had taken with scores in the intellectual disability range.

Decisively rejecting this ruling and referring to the Briseno factors as “wholly nonclinical” and an “invention of the CCA untied to any acknowledged source,” the Supreme Court held unanimously that such factors are impermissible to use in defining intellectual disability in death penalty cases. The Court noted that the Briseno factors were an “outlier” and that Texas did not employ this unscientific approach in determining intellectual disability in any legal issues other than the death penalty: “Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake.”

Even Justices who disagreed with other aspects of the ruling (Chief Justice John Roberts, Justice Samuel Alito, and Justice Clarence Thomas) agreed that the Briseno factors “are an unacceptable method of enforcing the guarantee of Atkins.” They disagreed that the CCA had erred in its determination of Moore’s intellectual functioning. The dissent criticized the majority opinion for its reliance on clinical standards as opposed to legal interpretation and precedent, noting: “clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment. Today’s opinion confuses those roles.”

With the American Association on Intellectual and Developmental Disabilities, The Arc filed an amicus brief in August 2016 in support of Moore and The Arc’s attorneys attended oral arguments at the Court in November 2016. The brief, cited in the Court’s opinion, argued that the state of Texas had distorted the clinical definition of intellectual disability by devising a formula of exclusionary factors that rested heavily on stereotypes and the mistaken notion that an ability to do things like engage in relationships, work, and live in the community precluded a finding of intellectual disability based on simultaneous limitations or challenges. Specifically, the brief noted that the “basic framework of the clinical definition is the constitutionally required standard for determining whether a defendant has intellectual disability.” Jim Ellis, a Distinguished Professor at the University of New Mexico School of Law who represented The Arc in this case said: “The Arc of the United States and its state chapters have played a vital role in protecting the rights of people with intellectual disability” in death penalty cases.

In decisively rejecting these “Briseno factors,” the Court embraces the standards-based approach in determining intellectual disability for which The Arc has long advocated. When it comes to matters of life and death, there is simply no room for courts to ground their determinations of intellectual disability in outmoded and baseless stereotypes.

The Arc has deep sympathy for the family and friends of the victim in this case, and we support appropriate punishment of all responsible parties. The Arc does not seek to eliminate punishment of Mr. Moore or others with disabilities, but rather, to ensure that justice is served and the rights of all parties are protected. The Arc is committed to seeking lawful outcomes for people with intellectual disability and will continue working to ensure that the U.S. Supreme Court rulings on this issue are abided by in jurisdictions across the country.

What’s at Stake at the Supreme Court for People with Disabilities?

What’s at Stake at the Supreme Court for People with Disabilities? The Arc Reviews Judge Gorsuch’s Record on Disability Rights

by The Arc

By: Shira Wakschlag, Director of Legal Advocacy & Associate General Counsel

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. 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 Pas(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.

Action Alert: Medicaid Day of Action – March 16, 2017

Make your voice heard! On Thursday, March 16, 2017, the Autism Society will join with advocates across the country for a National Medicaid Call-in Day to raise awareness about proposed changes to Medicaid’s funding structure in the American Health Care Act (AHCA). The AHCA, the replacement bill for Obamacare, will cut an estimated $880 billion from the Medicaid program over a ten year period. The Autism Society recently expressed our opposition to the Medicaid provisions in the bill due to the devastating impact it could have on people with disabilities.
Without action, many of the Medicaid programs that benefit individuals and families affected by autism will cease to exist and wait lists will grow to unprecedented levels. Massive cuts to Medicaid will have disastrous effects on those who need help most. These cuts impact services and supports people with disabilities and their families rely on to be contributing members of society and live independent, and fulfilling lives. Take a stand tomorrow and let Congress know you will not watch while Medicaid goes by the wayside. Call your Member of Congress (202-224-3121) on Thursday, March 16 and tell them to oppose the proposed Medicaid cuts in the AHCA! 
Now is the time to act. Together we can make a difference!

The Arc FINDS Survey – please participate!

We are pleased to share that our colleagues at The Arc of the United States in collaboration with the Research and Training Center on Community Living at the University of Minnesota have launched the 2017 Family and Individual Needs for Disability Supports (FINDS) Survey which seeks to capture experiences of individuals with intellectual and developmental disabilities (I/DD) and their families on a range of life-span issues.  The survey was sent out in 2010 and out of the 5300 responses only 19 were received from Kentucky.  Wouldn’t it be wonderful if Kentucky was well-represented in 2017?
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Intended survey participants are people aged 18 years or older who provide primary paid/unpaid and frequent support to a person with an intellectual or developmental disability (IDD) living in the United States. They hope to gather survey data which is reflective of the diversity of the United States and we are excited to assist them in this important project.
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Click on the following link to participate in the survey.

Learn about Participant Directed Services – Thursday, Jan 19th, 6:30-8:30

We have had to change the location of the meeting.  The meeting will now be held at Employment Solutions, 1084 Whipple Court, Lexington.

Whipple Court is off Nandino Boulevard, just past the main Post Office (first road to the left after you pass the Post Office if you are coming from Georgetown Road).

As always, our meetings are open to the public.  Please pass this information along to anyone you think could benefit from attending the meeting.


JOIN US!

Learn about:  PARTICIPANT DIRECTED SERVICES
Presenter:  EVAN CHARLES – CABINET FOR HEALTH AND FAMILY SERVICES

Participant Directed Services gives Medicaid waiver members more choices in the way some Medicaid services are provided. You can choose who will provide the services you need and how, when and where the services will be provided.

WHEN: January 19, 2017 from 6:30 p.m. – 8:30 p.m.

WHERE: Employment Solutions, 1084 Whipple Court, Lexington, KY

Please call Sherri Brothers at 502-517-6511 or e-mail sherribrothers@bellsouth.net to RSVP or for more information. Snacks will be provided.

Webinar – Tips to Interact Effectively with Law Enforcement – February 7 at 2:00pm

Don’t miss this great upcoming Webinar sponsored by The Arc of the United States!

Tips to Interact Effectively with Law Enforcement
Tuesday, February 7 at 2:00 pm EST

Speakers Leigh Ann Davis and Jessica Oppenheim will explore skills needed to engage effectively with law enforcement officers, the criminal justice system, and other authority figures as a witness, victim, or offender. This webinar will provide practical tips for people with I/DD, families, and professionals on how to support people with I/DD to advocate for themselves and engage with authority figures effectively.

Register for this session by clicking here

Updated Statewide Transition Plan for HCBS Final Rules – Open for Public Comment until January 19, 2017

Updated Statewide Transition Plan for HCBS Final Rules

The Commonwealth of Kentucky updated its Statewide Transition Plan (STP), which outlines our process for implementing the Home and Community Based Services (HCBS) Final Rules.  Kentucky received initial approval on its STP in June, 2016, and updated the STP based on additional feedback and comments from the Centers for Medicare and Medicaid Services (CMS).

These updates include further defining our heightened scrutiny and assessment processes.  The public notice of the updated STP was published in newspapers and on the DMS web page on December 20, 2016.  The STP is open for public comment until January 19, 2017 and is published on the Department for Medicaid Services (DMS)’ webpage: http://chfs.ky.gov/dms/

NAA’s Big Red Safety Boxes for Autism Families

The National Autism Association’s Big Red Safety Box® is a free-of-charge safety toolkit for autism families in need of wandering-prevention tools.
Please review ALL of the information below before submitting your application.
To apply for an NAA Big Red Safety Box®, you must: 
  • Be the primary caregiver of an individual with an autism diagnosis.
  • Be 18 years or older and a resident of the U.S.
  • Agree to the terms and conditions stated in the application.
  • Be a first-time recipient. Previous recipients are not eligible to apply.
  • Apply only once. Multiple requests will not be processed, limit one box per family.
  • Allow up to 3 weeks for NAA to process your application and ship your Big Red Safety Box.
NAA’s Big Red Safety Box® includes:
  • Educational materials and tools, including NAA’s Be REDy Booklet
  • Two (2) GE Door/Window Alarms including batteries
  • One (1) RoadID Personalized, Engraved Shoe ID Tag
  • Five (5) Adhesive Stop Sign Visual Prompts for doors and windows
  • Two (2) Safety Alert Window Clings for car or home windows
  • One (1) Red Safety Alert Wristband
  • One (1) Child ID Kit from the National Center for Missing & Exploited Children
Please note: 
  • If you have more than one child with autism and need additional ID’s, wristbands, etc., they can be purchased separately in our Big Red Safety Shop.
  • NAA’s Be REDy Booklet can be downloaded for free.
  • NAA’s Big Red Safety Boxes® have a retail value of $53.00.  To help NAA continue this program, we ask you to please consider Paying it Forward by making an optional donation when requesting your NAA Big Red Safety Box®.
  • NAA’s Big Red Safety Box® grants are awarded on a first-come, first-served basis to all qualifying applicants while supplies last. You are not required to make a donation to receive one.
  • You will receive instructions in the box to submit a custom personalization order for your shoe tag at roadid.com. Your tag will be quickly engraved with your emergency information and mailed to you at no charge.
Regardless of any tools caregivers may have in place, if a loved one’s medical condition interferes with their ability to recognize danger or stay safe, it is critical that caregivers maintain close supervision and security in all settings. For more information, visit our AWAARE site.

Click here to apply

And now a word from our sponsors …

The Arc of Central Kentucky would like to sincerely thank the following sponsors for their support:

Supporting Sponsors

Barrowman Case Management
G & J Pepsi
Homeplace Support Services
Kohl’s Lexington East
Performance Food Service – Somerset

Gold Sponsors

Artjock Graphics
Employment Solutions
Jim Chesser
Love & Grace Yoga Studio
ResCare

Silver Sponsors

Bluegrass.org
Chris’s Canine Cookies – Chris Riddell
Julian Clark
No Boundaries Case Management
Verbal Behavioral Consulting
Wee Can Autism & Behavioral Consultation

Bronze Sponsors

A Brighter Choice
Bundy & Associates
Lexington-Fayette Urban County Human Rights Commission

 

Dine for a Cause!

Join us for a night of delicious food, entertainment, music, silent auction,  cash bar & more at the historic Lyric Theatre & Cultural Center!

sheddingmaskflier-header

The Details:

Event:  Shedding the Mask on Disabilities
Date:    Friday, December 16, 2016
Time:    6:00pm – 10:00pm
Place:   The historic Lyric Theatre & Cultural Center, 300 E. Third Street, Lexington, KY
Dress:   Business Casual
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Tickets:
$25 – General Admission
$20 – Individuals with disabilities and their families (use the code “mask”)
          Tickets include admission, dinner and a T-shirt
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Tickets may be purchased online at
https://www.lexingtonlyric.com/boxoffice
or by calling 859-280-2218