"There could be a lawsuit over the underlying conduct," said Margo Schlanger, who headed DHS' civil rights office from 2010 to 2012.Mother Jones illustration; Getty
Rodney Taylor, a double amputee, was denied the care he needed for his prosthetics—causing the silicone lining of one of his legs to deteriorate, along with bone spurs in his back. Down in Texas, DACA recipient Javier Diaz Santana, who is Deaf, was denied access to an American Sign Language interpreter for weeks.
On February 2, 22 Democratic members of Congress sent a letter to Secretary of Homeland Security Kristi Noem interrogating the agency’s compliance with disability civil rights law—namely, Section 504 of the Rehabilitation Act—across its departments, including Immigration and Customs Enforcement. A similar letter in August, raising concerns that ICE’s treatment of disabled people may violate disability civil rights laws, was ignored beyond confirmation of receipt, according to the office of House Rep. Julia Brownley (D-Ca.), one of the signatories.
In one important respect, the February letter is different: it highlights the fact that staffing for DHS’ Office for Civil Rights and Civil Liberties (CRCL) and its Office of the Immigration Detention Ombudsman, which together oversee the agency’s civil rights complaints, have been reduced by 85 and 91 percent, respectively.
Section 504 prohibits discrimination against disabled people in programs that receive federal funding, which includes ICE. Given ICE’s track record, there are members of the disability community who do not view compliance with disability civil rights legislation as adequate—the Center for Racial and Disability Justice calls for abolishing DHS, under which, it writes, “bodily injury becomes normalized as a cost of enforcement.” The Disability Rights Education and Defense Fund (DREDF) also opposes continued DHS funding, arguing that the agency’s methods are intrinsically harmful to disabled communities, and that there is no evidence that treatment has improved in ICE detention facilities since the previous congressional letter last August.
That pain is compounded, DREDF’s government affairs liaison CT Tyson told me, by the fact that “money that is going to fuel and increase all of these activities came straight from the Medicaid funding that we lost.”
But Section 504 also points to a possible path forward: class-action lawsuits against DHS. “There could be a lawsuit over the underlying conduct,” said Margo Schlanger, who headed DHS’ civil rights office from 2010 to 2012.
“The facts asserted in that congressional letter are outrageous, if they are true,” said Schlanger, now a University of Michigan law professor. “It looks like the department has abandoned its commitment, which is required by law, to provide equal access to program services and activities for people with disabilities. It’s doing that in a way that is dangerous, and people are going to die as a result.”
Rebekah Tosado was one of around 150 DHS employees who were laid off from CRCL in mid-March. Tosado, a whistleblower represented by the Government Accountability Project, worked for the office for over two decades. To Tosado’s knowledge, there are now only two full-time staff members at CRCL. This doesn’t include political appointee, Troup Hemenway, its acting head.
“It’s absurd to say that two full-time staff people are carrying out all of the statutory functions of the office when the statute is very specific about the many types of work the office is required to do,” Tosado said, “especially in light of the explosion of immigration detention and all of the reported abuses related to immigration enforcement.”
In testimony before Senate Democrats, Tosado gave an example of the essential work she performed in office: investigating the care of a sick infant in family detention. As a result of her investigation, the infant received care, and DHS was compelled to stop placing families in that detention center.
Syracuse University law professor Katherine Macfarlane, an expert in civil rights litigation and disability rights law, also raised concerns that Hemenway, CRCL’s acting head, “doesn’t appear to have typically relevant civil rights expertise.”
DHS’ more public raids and attacks have overshadowed the black box of its detention centers, where disabled ICE detainees continue to report civil rights abuses with no apparent action—like Aliya Rahman, who was dragged out of her car by ICE agents after telling them she was autistic and disabled. Rahman, a US citizen, reported that she was denied communication and mobility support, including a cane, while in detention.
“If the facts that [Rahman] conveyed are true, there’s no doubt in my mind that there are violations of Section 504,” Tosado said. “Because of those violations, we would have asked ICE to take some very specific steps.”
But that would require CRCL to employ enough staff to review cases.
“To ensure compliance with disability laws, you need implementation, you need training, you need monitoring, you need oversight, ” Tosado said. “None of that can be happening now.”
