In 1999, two women with intellectual disabilities in Georgia sued the state for confining them in a psychiatric hospital. Lois Curtis and Elaine Wilson’s case went all the way to the U.S. Supreme Court, which ruled in Olmstead v. L.C. that they should have the right to live in the community just like nondisabled people. Writing for an 8-1 majority, the late Justice Ruth Bader Ginsburg said that “unnecessary institutional segregation of the disabled constitutes discrimination per se” because it “perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.”
The attorneys who brought Lois and Elaine’s case relied on an important principle enshrined in a law only passed nine years before their case made it to the Supreme Court. That law, the Americans with Disabilities Act (ADA), established the right for people with disabilities to participate in programs, services, and activities in the community rather than in segregated or institutional settings. Justice Ginsburg’s powerful language about what the ADA requires draws on a hallmark principle of the disability rights and disability justice movements – that disabled people belong in the same communities as nondisabled people, and that being disabled does not make us less human.
This year, we celebrate the 30th anniversary of the ADA’s passage. In 1990, the ADA was a landmark, sweeping legislative victory enshrining disability rights as civil rights. To this day, the ADA remains one of the stronger civil rights laws in the U.S., and a powerful tool for people with disabilities to confront systematic disenfranchisement. CDT’s new project on disability rights and AI has examined the many ways that the ADA can aid advocacy against algorithmic discrimination that furthers societal prejudice against people with disabilities.
Yet at the same time, we still have far to go. Disabled people at the margins of the margins have not enjoyed the same protections and expansion of rights and access as people with disabilities who experience more privilege and access to resources. The COVID-19 pandemic has also brought attention to many issues of inequity and inaccess facing disabled people today.
We’ve seen over the past year that disabled people face unique challenges and new forms of discrimination enabled by increased use of technology. We’ve seen disabled people fear medical discrimination by hospitals’ “care rationing” policies during the global pandemic. We’ve also seen a mass shift to virtual work and learning, which is a bittersweet change for many disabled people who have long advocated for remote work and learning options as a means of accessibility before the pandemic. We’ve seen the impact of virtual work and learning on disabled people who are low-income or people of color who are disproportionately less likely to have reliable broadband access or connected devices. And we’ve seen an increased use of artificial intelligence to enable predictive policing, make benefits determinations, and influence hiring practices, all of which disproportionately discriminate against people with disabilities and imperil the promise of the ADA.
CDT has committed to addressing several key areas at the nexus of disability and artificial intelligence, as we aim to challenge technological discrimination against disabled people. Those areas include the following:
AI in Benefits Determinations
- Recently, CDT published a report titled Challenging the Use of Algorithm-driven Decision-making in Benefits Determinations Affecting People with Disabilities, tracing recent developments in litigation against AI in public benefits, which advocates have argued can place disabled people at risk for institutionalization through drastic benefits cuts. Our report is also available in plain language to increase accessibility of our work.
- We hosted a webinar last week featuring two litigators, Kevin De Liban of the Legal Aid Society of Arkansas, and Tina Nelson of Legal Counsel for the Elderly, as well as Tammy Dobbs, a disabled advocate who was a plaintiff in a major case.
AI in Hiring and Employment
- We’ve partnered with the Leadership Conference on Civil & Human Rights to release Civil Rights Principles for AI Hiring Technologies, ensuring the disability perspective is represented.
- In the coming months, we’ll be publishing a report on AI hiring tools under the Americans with Disabilities Act.
AI in Health and Privacy
- We recently collaborated with the American Association of People with Disabilities to host a convening with disability rights and disability justice leaders on privacy concerns around unregulated health data, building on our work with the eHealth Initiative to develop a consumer privacy framework for health data.
- I’ve joined an international advisory group for a University of Melbourne project on the Law & Politics of Digital Mental Health Technology, which is developing a framework for responsible public governance of data-driven mental health technologies.
Our work includes consultations with the companies who are building new technologies, litigators developing cases against discriminatory AI, and other advocacy organizations developing their strategies for challenging harmful technologies.
Building on the legacy of the ADA and subsequent legal precedents, in the months to come, CDT will continue its vital work to challenge discriminatory and sometimes illegal algorithm-driven decision-making in multiple arenas that affects disabled people’s lives, health, privacy, and freedom. On October 27, I joined disability rights leaders Judy Heumann, Zainab Alkebsi, Deepa Goraya, and Ricardo Thornton for a panel discussion on the legacy and future of the ADA hosted by American University Washington College of Law in partnership with Verizon. This discussion likewise builds on CDT’s current work to address pressing issues of inequality and injustice affecting disabled people as the ADA enters its thirtieth year. CDT will continue to advocate for full inclusion, equality of opportunity, and access for people with disabilities.