On the Thursday afternoon before the Christmas holidays, Attorney General Jeff Sessions' Department of Justice rescinded 25 guidance documents that the department found "unnecessary, inconsistent with existing law, or otherwise improper." The list included 10 texts on disability rights, including one as recent as 2016 (i.e. hardly out of date). This recent document codified the labor rights of disabled people as they move from sheltered workshops paying sub-minimum wage into the integrated economy. Its deletion represents the latest effort of the Trump administration to roll back disability protections in the 21st century.
I spoke over the phone to Eve Hill, former deputy assistant attorney general for the DOJ's Civil Rights Division. Hill tells me that technical assistance around the ADA is vital for everyone involved. Removing it doesn't change the law; "the law is the law," she says. But when people don't understand that law, access to services can be threatened, and the courts become the only recourse. Hill says she's angry because the Trump administration is taking away a proactive and "helpful approach," leaving confusion (and the likelihood of litigation) in its wake.
On December 21, the U.S. Department of Justice rescinded its Statement on Application of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. to State and local Governments' Employment Service Systems for Individuals with Disabilities. The statement, which was issued last year, described the obligations of states to administer their employment services for people with disabilities in the most integrated setting appropriate. Evidence-based supported employment services help people with disabilities secure and maintain competitive, integrated employment. They are critical to achieving the ADA's goals of independent living and economic self-sufficiency.
We are extremely concerned about the withdrawal of this guidance document, both because it sends the wrong signal to public entities that are seeking to comply with the ADA and because it may reflect a diminished concern with the importance of providing employment services in the most integrated setting. As the Justice Department notes, withdrawal of this guidance "does not change the legal responsibilities of State and local governments under title II of the ADA, as reflected in the ADA, its implementing regulations, and other binding legal requirements and judicial precedent, including the U.S. Supreme Court’s Olmstead decision." The Statement reflected already established law, and its withdrawal does nothing to change that law, existing settlement agreements, or prior Justice Department findings letters about the application of the ADA's integration mandate and Olmstead to employment systems.
The vast majority of people with disabilities and their families want opportunities for competitive integrated employment. Most employment service providers, in response to best practices, federal law, and DOJ Guidance, are working to change their business models away from sheltered work to competitive integrated employment, and almost all states have embraced an "employment first" approach reflecting that shift. The Department's guidance was consistent with the priority the disability community has placed on enforcement of their civil rights to work alongside and with the same conditions as their peers without disabilities.
We are committed to expanding opportunities for all people with disabilities to have opportunities to work alongside their non-disabled peers for competitive wages and fulfill the ADA’s goals of integration, independence and economic self-sufficiency. We urge the Justice Department to remain committed to these goals as well.
We are also concerned about the process by which the Department announced that it is withdrawing nine other technical assistance documents on the same day. While some of these documents were outdated, government transparency is critically important. We were concerned to see so many documents suddenly withdrawn with little explanation of the reasons for doing so. Guidance documents are important tools to educate all stakeholders about the requirements of the law in a clear fashion, and the withdrawal of some of these guidance documents may create confusion and misunderstanding.