Category Archives: Uncategorized

Are all crimes “hate crimes?”

This morning, Virginia’s Senate Committee on Courts of Justice defeated two bills that would have extended “hate crime” protections to people with disabilities.

Virginia’s “hate crime” statute establishes higher mandatory minimum penalties for a crime where the victim is selected based on certain characteristics.  The law affords an elevated punishment level to a crime that is committed with special animus towards someone based on their religion, race or ethnicity (one section of Virginia’s law also adds “color” as a protected trait).  This morning’s proposal would have added that elevated punishment level if the animus was directed towards a person’s disability.  With the increase in bullying and violence that we are seeing towards children and adults who are different in any way, the disAbility Law Center of Virginia supported this extension of existing law.

But the bill was defeated.  The final vote broke down along party lines, with Republican senators expressing opposition to something that might offer protections to people who are nearsighted or who have a learning disability.

Opponents to a second, similar bill this morning declared that “all crimes are hate crimes,” so that that no one class of victim is deserving of special protections.  One  opponent said that the legislation amounted to “thought punishment,” even after a senator reminded him that it is an actual criminal act that is being punished.

More and more people with disabilities are moving towards full integration in society, even in slow-to-change Virginia.   We would hope that our constituents will not need the added protections of hate crime penalties, but only time will tell us whether our hope is justified.

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Charlottesville: Let us never forget our true history

The nazi chants and fascist symbols on display in Charlottesville last weekend were terrifying to many people.  Among those feeling especially threatened — people with disabilities.  The ideology on display evoked a time when the extermination of people with disabilities was a key element of the fascist movement in America.

The 1920s saw the rise of fascism in America and all over the world.  With fascism came the eugenics movement.  Together, they sought the establishment of  a “superior” race, absent any “defects.”  In Virginia,  eugenics — forced sterilization of “defectives” — was legally and social acceptable.  Just down the road from Charlottesville, at what is now known as the Central Virginia Training Center, superintendent A.S. Priddy carried out thousands of sterilization operations, with the intent to eliminate future generations of people with intellectual and other disabilities.

Perhaps most famously, Priddy involuntarily sterilized  a young woman named Carrie Buck, claiming that Buck had diminished intellectual capacity. The United States Supreme Court endorsed this action, stating, “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.”

That was 1927.  Those shameful days are long past now. Or so we hoped. The Eugenics law in Virginia was repealed, but it took 50 years to do that.  Virginia’s legislature issued a statement of “regret” for the Eugenics movement, but even that did not occur until 2001.

A year later, Virginia erected a historical marker near the site of Carrie Buck’s home, and issued a statement concluding, “the eugenics movement was a shameful effort in which state government never should have been involved.”   The legislation calling for the historical marker argued that eugenics and the supremacist movement underlying eugenics is “an embodiment of bigotry against the disabled and an example of using faulty science in support of public policy.”  The marker stands as a reminder to us all of  those very dark days in our history.

That historical marker is in Charlottesville.

Guest blog: The room where it happens: House subcommittees

(Melissa Gibson is a staff attorney at the disAbility Law Center who spent many hours in January and February working at the Virginia Legislature.  She shares some of her  impressions with us.)

In Hamilton: An American Musical, the performers sing “I wanna be in the room where it happens.”  They were discussing a very different situation, but I can’t help but hum this song to myself when I am going into the General Assembly building.  A lot of work goes into bills that the general public will never participate in.

But if you want to be in the room where things are happening, start at the House Subcommittees.  This is typically the first opportunity to speak directly to a group of legislators who have significant power to support or kill the bill you’re following.

Hearing the discussion between the patron and subcommittee members and hearing others’ comments can also help you refine your advocacy strategy and public comment.  Perhaps there is an opportunity to inject critical facts into the discussion; perhaps it’s a non-starter but an amendment will allow it to live on and get reported to committee.  In the House subcommittees, so often, it can go gently into that good night without further comment.

For HB 1534, and HB 1536, a set of House Bills regarding student discipline, the subcommittee provided a great opportunity to listen to the sponsoring legislator passionately speak to the principles that animated him to patron the bill.  Delegate Richard Bell discussed his bills, which were introduced with the goal of reducing allowable timeframes and offenses for long term suspension and eliminating the practice for very young students.  He fielded criticisms and questions, consistently reinforcing the subcommittees’ obligations to educate all students, those with exceptional needs, the outliers who need the most protection. Other members joined him, building on those themes, and ultimately the subcommittee moved to report in a recorded 6-3 vote.

Those bills went through a number of dramatic transformations throughout the process, and neither made it out of the General Assembly.  Nonetheless, the patron’s eloquent defense and the powerful comments from the subcommittee and public made it very worthwhile to be in the room that day. It was the room where it happened. I know that the excellent work of agencies like JustChildren will continue and hope that the importance of educating all of Virginia’s children, including and especially children with disabilities and other challenges, will continue to resonate with our elected representatives.

 

 

Guest blog: Are your parental rights in danger? People with disabilities and threats to child custody

(Jenny Heilborn is a senior disability rights advocate at dLCV.  Over the past few months, she has been working to educate policymakers about issues in the disability community. This is one of the issues she worked on at the state legislature.)

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Recently in Massachusetts, a mother with a developmental disability gave birth to a child and found the child immediately removed from her custody by the state simply due to her disability.  The state offered no reasonable accommodations for her disability during the child’s removal.  Additionally, the state did not offer any supports or accommodations normally offered to non-disabled parents upon the removal of a child.  The Department of Justice (DOJ) investigated and found unlawful discrimination.  Yet still the mother and child were separated for almost two years after birth, denying both attachment, bonding, and the first two years of the infant’s life together.

You can read more about their story here:

https://www.ada.gov/doj_hhs_ta/child_welfare_ta.html#_ftnref10

Unfortunately, discrimination as based upon disability is a common issue and isn’t restricted to Massachusetts.  The Office for Civil Rights (OCR) and the DOJ have received many complaints of discrimination from parents with disabilities regarding custody.  These complaints seem to be on the rise.  The American Bar Association (ABA) and the U.S. Department of Health and Human Services (HHS) have found that disabled parents face higher rates of removal of their children.  For example, in the ABA 2017 Resolutions with Reports to the House of Delegates, the ABA cites 12.6 percent of parents with blind or deafness reported experiencing discriminatory treatment related to custody.

Upon urging from the Disability Commission in Virginia, Senator Barbara Favola, working in collaboration with the National Federation of the Blind and the disAbility Law Center of Virginia, put forth a bill to address the discrimination of blind parents in this year’s legislative session.  Senate Bill 1199 provided that a parent’s blindness should not be the sole basis of denial or restriction of such their custody or visitation rights.

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Although Senate Bill 1199 passed through the Senate without opposition, it did not pass the House due to opposition from the Virginia Bar Association’s Family Law Coalition.  This opposition centered around legal interpretation of applicability of the Americans with Disabilities Act (ADA) and if the parent’s blindness alone could serve as the basis of a denial or restriction of custody without clear and convincing evidence that the best interests of the child would not be served or met.

After lengthy debate and testimony from all sides, it was recommended to table the bill and to form a workgroup with interested stakeholders to address all concerns.  The workgroup will include Senator Favola, the National Federation of the Blind, the Virginia Department of the Blind and Vision Impaired, the Family Law Coalition, the disAbility Law Center, and all other interested parties to develop a revised bill for the 2018 General Assembly.

“It takes no compromise to give people their rights…it takes no money to respect the individual. It takes no political deal to give people freedom. It takes no survey to remove repression.” —Harvey Milk

Join our voices as we fight for equal civil rights for individuals with disabilities.

Causation

If you ever took a course in statistics, you may have learned the phrase “correlation does not imply causation.”  In other words, just because two things happen together does not mean that one caused the other.  A famous example of this concept is that, apparently,  yellow cars are involved in fewer accidents proportionally than are cars of other colors.  Does that mean that there is something about the color yellow that makes cars safer to drive? Of course not.

Correlation does not mean causation.

As policy makers struggle to find solutions to societal problems, they may need to remember that correlation does not mean causation.  For example, recently a Senate committee in Virginia’s legislature heard a story about a tragic suicide that occurred on a playground in Williamsburg on Thanksgiving day.  The person who committed suicide had been a resident of a nearby group home.   A community member tearfully testified about the candlelight service that followed the sad event, then pleaded for the Senate to pass a bill banning group homes from being located near schools and children’s facilities.  It was hard to discern the connection:  did the supporters of the bill think that the playground caused the suicide?

Sadly, that Senate committee passed the legislation, perhaps unaware that Williamsburg has held the honor of the having state’s highest suicide rate for many years.  Later, the Senator who sponsored the bill pulled it back, saying that it needed “work.”  Because of the timing of that decision in the course of this legislative session, that proposal is effectively gone for this year.

We would hope that the idea is gone for the future as well.  Group homes located near schools and playgrounds do not cause suicides.  Only with a better funded community mental heath system can we hope to help Williamsburg and the rest of the Commonwealth to avoid that kind of tragic outcome.

 

Mental Illness and the Death Penalty

Should someone be subject to the death penalty if they were seriously mentally ill at the time of their crime?  The question was before the Virginia General Assembly again this year.  It is enormously complex, legally and morally.

The US Supreme Court has given us some guidance, but no clarity.  In Atkins v Virginia (536 U.S. 304), the Supreme Court ruled that the state can not execute a person with an intellectual disability, and in 2009 the Court directed that a state can not execute someone who is mentally ill at the time of the execution (Panetti v. Quarterman,127 S. Ct. 2842 (2007). 

The issue being considered by the legislature is different, however.  It sometimes happens that, with some mental health treatment in a prison, a person with a mental illness may recover enough that he is no longer mentally ill at the time of a scheduled execution.  In other words, the state might be able to treat someone enough to be able to execute him. The question becomes, should they?

The Virginia General Assembly had two bills before it this year to eliminate the death penalty for someone who is seriously mentally ill.  Delegate Leftwich brought HB 1522 and Senator Favola brought SB 1348.  Both bills were defeated in committee.  But advocates for people with mental illness vowed to fight on, in the hopes that one day Virginia will stop executing people who were mentally ill when they committed the crime.

The Rights of Blind Parents

This week at the Virginia General Assembly, a House subcommittee considered a bill that would protect the rights of blind parents.  Witnesses testified about the fear that new parents who are blind face, when social workers or hospital staff make assumptions about their ability to be parents if they are blind.   Advocates asked for specific language in the law, making it clear that someone could not lose their constitutional parental rights simply because they are blind.

The advocates who had been working on the proposal had not heard of  any opposition to the bill, but lawyers from a Family Law coalition objected to the creation of special protections for blind parents, and the House subcommittee killed the bill.

During the debate, one of the committee members asked whether this is not already addressed by the Americans with Disabilities Act.  The lawyers opposing the bill felt that it was.  The ADA, now more than 20 years old, does prohibit state and local governments from discriminating on the basis of disability, so in theory, it ought to already restrict a court or a social service agency from acting solely on the basis of a parent’s disability.

And yet, it happens.  A few years ago, blind parents in another state lost custody of their own child simply because the blind mother was having difficulty breast-feeding the infant.  Here in Virginia not so long ago, a friend of mine feared the same outcome when ill-informed hospital staff quizzed the new mother about her resources.  She was well prepared for the scrutiny, however, and ended up teaching the hospital staff about adaptive techniques and resources  used by blind parents.

It may be that blind parents need to use child-rearing techniques that differ from those used by  sighted parents.  Or it may be that sighted parents could learn from some of the techniques used by blind parents!  Couldn’t “jingle shoes” help a busy parent keep track of a child’s activities, whether the parent is blind or not?  You can read about other resources used by blind parents in a publication created by the National Federation for the Blind, called Parenting without Sight:

https://nfb.org/Images/nfb/Publications/brochures/BlindParents/ParentingWithoutSight.html

We know that parenting  is hard enough, without the extra burden of discrimination by well meaning state agencies.  We hope that a solution can be found in the future.