The Section 504 Trainings

One article-in-progress, coauthored with legal historian Karen Tani, considers the co-production of law and citizenship at an important moment in the history of the administrative state. In “‘This is Our Law’: Delegated Governance and Disabled Citizenship at the End of the New Deal Order,” we examine governmentally funded trainings that were administered by disability advocacy organizations and run by disabled trainers after the passage of Section 504 of the Rehabilitation Act of 1973. Section 504 was the first civil rights statute for people with disabilities, and after the passage of the regulations, the government funded national trainings by disability rights organizations aimed at educating people about their rights under the new law. We argue that these trainings are properly understood as “delegated governance,” which political scientists define as private actors taking on governing functions. Drawing from the insights of legal historians, as well as theories about bureaucratic political development by political scientists, we consider the significance of these trainings using archival material from the Disability Rights Education and Defense Fund (DREDF). Specifically, we suggest that organizations, with little oversight from HEW, were able to materially shape how the new regulations were implemented by instructing trainees that they could directly negotiate their needs with government agencies. This “rights-bearing mindset,” as it was called de-centered courts as the site where the 504 regulations were given substance and instilled a sense of ownership in disabled trainees. Trainees left with the impression that this was their law. Although the expectation of citizen enforcement created its own exclusions, the 504 Trainings are an example of civil rights enforcement outside of the federal courts and the “litigation state,” as traditionally construed.

Civil Procedure & Civil Rights

My student comment, “Class Dismissed: The Dangers of Applying Ascertainability Requirements to Rule 23(b)(2) Class Actions,” argued that an emergent practice of imposing administrative feasibility requirements on civil rights class actions seeking injunctive relief is doctrinally incoherent since injunctive relief necessarily involves future plaintiffs who cannot be ascertained. Procedure can unduly affect people’s ability to seek substantive relief for civil rights violations—and therefore undermine their citizenship rights. Class certification requirements are one area, as Suzette Malveaux and others have argued, where such requirements are particularly onerous for civil rights plaintiffs—to great consequence.

I plan to continue this work in a series of follow-up papers on class certification procedure. Currently, I am working on a standalone paper that considers the ways in which heightened standards for commonality, typicality, and ascertainability have affected plaintiffs seeking to leave institutional settings under Title II of the ADA, which is interpreted to mean that unjustified segregation of people with disabilities is discriminatory. Many courts that apply administrative feasibility requirements in the civil rights context do so in deinstitutionalization suits. This is troubling precisely because the variable nature of people’s mental states and conditions (which is what concerns judges). People’s qualification for community care is necessarily not ascertainable in advance. Moreover, institutionalized persons are among some of the least resourced persons in the legal system, meaning class actions are particularly important to them. Additionally, I can foresee typicality and commonality being issues for classes of institutionalized people for similar reasons—while the plaintiffs have common legal claims, they may vary significantly in their diagnoses and other factors affecting their claims. Courts may therefore be hesitant to grant class certification under more rigid standards for class certification.