Trump Is Once Again Trying to Change the Law With Memos

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:03 Jenessa: It's just going to cost more and be less effective. Like, it's not saving anybody any money. No to all of this.

0:00:17 Jenessa: You know, you ask somebody, do you want this person dead? Most people have enough of a heart to say no, but they also don't want any of the programs that would help that person, and they don't have any answer for where that person should be living if it's not in my neighborhood.

0:00:37 Thomas: Hello and welcome to Opening Arguments. This is episode 1276. I'm Thomas. That over there is real -life attorney Jenessa. How you doing?

0:00:43 Jenessa: I'm doing pretty good. I am hanging out here listening to the lovely noises of my city. There's um police and an ice cream truck and a barking dog

0:00:54 Thomas: God. I wonder if they're related. Is the police chasing a rogue ice cream truck? Or it's maybe like it's hot, so the ice cream trucks following the police being like, you're gonna need, I know you're going to want this. Some point. How's the dog factor in? Canine unit? Yeah.

0:01:18 Jenessa: My god we have like a neighborhood dog that just likes to occasionally it just sounds like someone's getting murdered there's normal dog barks that are like and like okay somebody walked by and then there's like sounds like an attack and then you look outside and he's just he's just pissed at a bird. I don't know. It's crazy.

0:01:31 Thomas: Yep. That's dogs for you.

0:01:32 Jenessa: The sounds of my neighborhood. Lovely.

0:01:36 Thomas: Well, we'll see if anyone hears them. What law sounds are we going to be making today?

0:01:41 Jenessa: We've got a pile of updates for you. I'm going to reference back to like five different episodes we've done. Things have really gone to hell at the Department of Education and Department of Health and Human Services in ways we predicted. Unfortunately, there's a lot of important stuff we can talk about with what's happening and lawsuits that are stopping it or trying to stop it. How those are progressing should be interesting. I think there's still a lot of hope on these issues, but important for people to be keeping their eye on it.

0:02:15 Thomas: Whoa, whoa, whoa. Are you saying that people could have seen this coming? Because I, for one, will not stand for that. There was no way anyone could have seen this comment. It's impossible.

0:02:19 Jenessa: Yeah, entirely predictable. And I will refer you back to the episodes where we predicted all of this. We've got a bit on olmstead the court case that talks about institutionalization and making sure people are not unnecessarily institutionalized the office of legal counsel at the white house would like to tell you that's not important so we're going to talk about that one I don't think they'll be successful with that too much but there's some risks involved there and the ongoing going dismantling of the Department of Education. You and Matt had talked about some of the early stuff with firings, and then you and I have talked extensively about what RFK Jr. is up to with trying to get a lot of disability services discontinued. That has intersected in a really weird way just a few days ago, so we'll get into that as well. It's weird what they're trying to to make happen over here with special education. Not great.

0:02:32 Thomas: Lots to dig into. I guess we'll take our usual first break. Patreon .com slash law. If you want to support the show, get the goodies and skip the ads, most importantly. All right, we're going to take a break and then we'll get to it.

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0:03:45 Jenessa: Episode 1180. That was a Friday episode with a bunch of news. And one of the things we talked about was the history of forced institutionalization and ugly laws in reference to the executive order from July 24th of 2025, ending crime and disorder on America's streets. And this was clearly targeted at people people experiencing homelessness, and trying to institutionalize people and force people into institutions when they didn't need to be there. We talked extensively about the history of how that has happened in the United States and how we got away from that. It's a huge problem. It's not just in the united states but it has been a long part of our history. We had those unsightly beggar laws that tried to make it illegal to just be disabled in public. We did eventually overturn that and get rid of that. And then you and I talked more recently in episode 1 ,238 about the decision in Olmstead VLC, 1999 decision written by RBG about the institutionalization of people with disabilities, where in the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, it says discrimination against people with disabilities is a real problem. We recognize, you know, this is Congress speaking in their legislative intent. One of the big problems is exclusion, keeping people out of government programs, keeping people out of public. It's recognizing that history of ugly laws and keeping people locked away. And they say that we need to prevent discrimination. When we say discrimination, that's one of the things that we mean is this form of just hiding people and keeping them out of what everyone else is doing. Section 504 and the ADA are telling us this. We And we get this case where we have two women who were institutionalized in psychiatric wards for years after their mental health providers had said they're perfectly capable of living in a less restrictive environment. They could go to a group home. They could be in just home -based care. So somebody checks in on you or maybe lives with you. Years and years later, the state is like, yeah, we couldn't really find a spot for them. So meh. And the Supreme Court says, yeah, that fits with the regulation that the DOJ put out that says a public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.

0:06:43 Thomas: Right, I remember this. Okay. Huh?

0:06:45 Jenessa: Yeah. So this is the least restrictive setting. This was upholding that regulation, talking about the importance of that regulation. It's been three decades now. And this decision has been upheld at all levels of the judicial system. We've been relying on this to help people with disabilities exit unnecessarily restrictive settings, to avoid forced institutionalizations. The DOJ has written regulations to coincide with that decision. They already had those regulations in place. They've sued states over it. They've entered into consent decrees to make sure states are following that. That nothing's perfect. We still have issues with people over -institutionalized. Enforcement is always going to be an issue, right? Things can be great on paper, but you need it enforced, and the DOJ has limited resources, and you're always trying to get the DOH engaged with things, getting them to notice things. I don't want to portray it as perfect or anything, but it's been been going. It's been there. It'S been very helpful. The problem is June 18th, 2026, a new memo from the White House Office of Legal Counsel asserts that in Olmstead, the Supreme Court did not hold that Section 504 of the Rehabilitation Act or Title II of the ADA requires states to treat mentally disabled patients in the most integrated setting appropriate to their needs. That's their big takeaway.

0:08:17 Thomas: It's just a nuh -uh.

0:08:19 Jenessa: Yeah, pretty much. They claim Olmsted was actually a very narrow ruling, and all it said was it can be discrimination under the ADA to unjustifiably institutionalize someone. And I guess, I mean, you can read anything narrowly if you don't read the whole thing. Like, no? Olmstead did leave open that it was a balancing thing, that states had leeway insofar as you have to consider their budget.

0:08:53 Jenessa: What's reasonable? You have a certain number of people who need a certain amount of care. Some of the conservative justices really wanted to drive home, do you have to offer any care at all?

0:09:03 Thomas: Yeah.

0:09:04 Jenessa: But presuming one is offering any care, you have to offer government programs in a non -discriminatory manner. They said like, okay, well, you're offering the program. There's a certain amount of people that you're trying to offer it to. How much does it cost to do this, this and this like there's always a reasonableness consideration obviously if it's going to cost you a million dollars for one person to be in one setting and it will cost fifty dollars for them to be another and considering the fact that how much that money could be put towards not institutionalizing a hundred other people like they were leaving open that right at no point In that decision, do they say anything about other reasons that over -institutionalization could be okay? It's just saying that under the ADA and the resultant DOJ regulation, it's pretty clear what you did violates that regulation. They're leaning on like a Chevron type of thing. They're saying Congress didn't really authorize the DOJ to make that regulation When

0:09:45 Thomas: What? So

0:10:17 Jenessa: Congress passed the ADA and they said in the ADA there's discrimination and part of discrimination is not having people integrated and make regulations to prevent discrimination, and then the DOJ made a regulation that said you have to use the most integrated setting, that was crossing a line. That that regulation was too much, not authorized under Congress. They overstepped. What? What? The Supreme Court had an opportunity to say that and they didn't. All the courts below, they're bound by the Supreme Court, but they could have said at any time, like, here's a thing the court didn't consider and they Didn't say that. We've had it for decades. Yeah, it's just nuh -uh 30 years later.

0:11:04 Thomas: They're doing the thing that I think they've done a bit before, which is like write a memo saying, well, actually there's nothing, there's a law that says a dog can't play baseball essentially. And then they're banking on either doing a certain amount of harm before that can go through the courts and even be fixed. I think that's part of it. Or their banking on the Supreme Court has changed enough that they can almost announce this is like putting in their lunch order at the Supreme Court. So I was like, hey, we're good. We're getting we got a conservative court. We got a MAGA court. Anyone. What can I get you?

0:11:35 Jenessa: Yeah.

0:11:35 Thomas: They're like, oh, oh. I got a memo. It's this. And then they kind of declare by doing this. They're sort of declaring what they want the court to ruin in advance. That's all me. Just in my opinion. Does that sound right? What do you think?

0:11:50 Jenessa: Yeah, pretty much. It's going to be that. Obviously, they can't write a memo to overturn a court case, right? Right. But because it's coming from the president, from the Office of Legal Counsel, in normal times, can they tell the DOJ what to do? No.

0:12:08 Thomas: Well, they kind of can. I don't know. It depends on what it is, I guess. I mean, you have broad policy.

0:12:13 Jenessa: Sure, they can set broad policy, but can they just tell the DoJ to get rid of a regulation not in the same way that they would tell the EPA to change a regulation? You know what I mean?

0:12:26 Thomas: Right. Yeah.

0:12:26 Jenessa: Like the DOG is supposed to be more independent. In normal times you would think of this more like just an opinion statement that you'd be like all right well the DOJ is going to keep doing what they're doing because they're an independent agency today I look at this and think this is a permission slip to first of all start considering changing the regulation which at the end of the day that supreme court case is based largely on the wording of that regulation and if that regulation is gone we would have to re -litigate the whole concept of Olmstead and over -institutionalization and where to pull that from the ADA and Section 504 without that explicit wording in the DOJ regulation, even if they leave the regulation alone, it's permission to not enforce it, to say, like, if the states violate this, like, the DOJA is just not going to do anything. That could be a huge problem for states that don't feel like cooperating and participating.

0:13:28 Thomas: So what does this mean? What actions are people taking? Like, why are they doing this?

0:13:34 Jenessa: Because this is part of that executive order to try to institutionalize people. Olmstead has been getting in the way of that for decades, that when they find some person who's on the streets and has a mental illness or an addiction or some mental illness in particular would qualify them for ADA protections. And now if they don't have to go into a locked psychiatric ward, if they can survive just fine in a group home, but that means not in my backyard, you're going to bump into them sometimes in your neighborhood. Too bad. Olmstead and the DOJ regulations and the ADA are protecting them and saying they have just as much right as anybody to be out and about, to live in the group home and to walk to the grocery store. And they're somebody who's capable, so they can be. And if you want to force institutionalization on somebody, they have due process. They have a right to fight that and to To say, I don't need to be in a locked psychiatric ward. I can be in this other setting and I'll be okay. And that has been a huge impediment to people who want to just take everyone they don't like and everyone they Don't want to look at and put them away and get them out of their neighborhood. Realistically, that's what's going on here.

0:15:05 Thomas: I guess I'm wondering, have there been like, like, why did this, was there a specific case or any reason you know of that this got done when it did? I mean was there something specific or is this just they're really good at finding all the ways to ruin people's lives even like in advance?

0:15:24 Jenessa: I really think it's part of that push. So like when Trump put out that executive order, everybody immediately screamed Olmstead. This idea that you're screaming and yelling about their fighting vagrancy on America's streets is section three. I have the executive order up and they're talking about taking immediate steps to enforce prohibitions on urban camping and loitering and force prohibitions on urban squatting, like all these things they want to do and address individuals with serious mental illness, putting them into treatment centers, things that because of Olmstead, they kind of can't do it the way they want to do it. Obviously the things we would like, housing first and treatment plans, that's fine. You can do that. It's okay under Olmsted to say completely independent living is not possible for this person and so we're going to get them the care they need. Olmstead says the least restrictive setting, and for some people the the least restrictive setting is not living independently by yourself. They want to put people in institutions and not have to look at them and not spend any money on them for sure, not do housing first, not give them drug treatment. That's why like when people saw these executive orders, we were like, yeah, Olmstead makes this illegal. And it was not that we weren't worried, but that there was a really obvious pathway to fight this and to say, well, it's not going to happen because. This is the beginning, I think, of that plan to start dismantling Olmstead and dismantling those protections to make it easier to enforce what they're trying to do, to combat homelessness the way they want to do it, which is heartless and gross for the most part.

0:17:21 Thomas: Yeah it's not even clear what the solution is even their solution just get rid of them somehow but that what does that

0:17:29 Jenessa: Yeah, I mean, we can certainly talk about what places have been doing, you know just constant move -along orders and taking and destroying people's possessions like

0:17:35 Thomas: Mean yeah yeah it really seems like just hoping people die oh yeah

0:17:50 Jenessa: A lot of it literally relies on just waiting for people to die yeah I mean kagan said that during oral arguments and the one about laws that were essentially banning living on the streets which is something that is not possible to avoid if you don't have a home and she literally said in oral arguments what are these people supposed to do kill themselves what are you asking and there's not a good answer. You have to have a solution. If you don't have shelters and you don t have housing first programs and you d n t have a place to put a roof over someone s head and you won t let them sleep on the sidewalk, what are they supposed to do? Give me an answer. Right.

0:18:31 Thomas: It's also like they want to have them go to blue cities where those things do exist to the extent that folks can like actually travel in a way.

0:18:34 Jenessa: Right. They can campaign on it.

0:18:36 Thomas: Yeah it's it's just a a win -win in for them I guess

0:18:40 Jenessa: Yeah, pretty much. To the extent that they can get any suburban area that's on the fence to see people they don't like, get upset about it, and start voting red because they just don't, it's all not in my backyard. You ask somebody, do you want this person dead? And of course, you know, most people have enough of a heart to say no, but they also don't want any of the programs that would help that person. And they don'T have have any answer for where that person should be living if it's not in my neighborhood? What do you really want? It's obviously starting us down that path of we're not going to enforce this thing and we're going to make it easier to kind of turn a blind eye when states start to institutionalize people and somebody tries to bring an Olmstead petition. And if the DOJ does not intervene in that case, then what? Do these people even know they can bring that petition? Who's going to know about them? Who's going to know they're missing?

0:19:43 Jenessa: No, not great. Definitely something to keep an eye on, to keep watch over what they are trying to do. Even blue states, there are plenty of people who know that this is a bad campaign issue, and they would also like for you to not walk down the street and see somebody who is experiencing homelessness and blame it on your governor and and vote because of that. Do not get complacent in a blue state or a blue city and think that those people are safe because a Democrat is in charge. Keep an eye on what your politicians are saying about this. Ask them what their plans are, because if they think that because Olmstead won't get enforced, we can institutionalize people now, like that, that's a huge problem.

0:19:41 Thomas: Well that doesn't sound good yeah

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0:20:35 Jenessa: That one's not great. To turn to other not great stuff happening over in the Department of Education, two days days earlier, June 16th, we get a memo. The Department of Education is currently housing the Office of Special Education and Rehabilitative Services and the Office of Civil Rights. That second one might sound a little strange. You might think, like, why is that not already in the Department of Justice? What they specifically handle, they are the office of civil rights of the department of education no no no this

0:21:08 Thomas: Oh okay I was gonna say this is not the white african farmers thing because that's the only civil rights work they do anymore

0:21:16 Jenessa: One very specifically handles complaints about discrimination in

0:21:21 Thomas: So affirmative action you know like like white people complaining that like affirmative action happened yeah

0:21:23 Jenessa: Education literally literally what they have largely turned to is like title nine anti -trans stuff and like actually white people are the real victims anti -discrimination they've been doing a lot of that lately what they they used to do is a lot of disability discrimination complaints. That wasn't the only thing they handled, but for people who work in my area, this is something we were very concerned about. The memo that just came out says Office of Special Education and Rehabilitative Services is going to go to Health and Human Services now instead of the Department of Education. And the Office of Civil Rights will go to the Department of Justice. We're just moving agencies out of the the Department of Education. So this is part of that larger dismantling of the Department of Education that started last year. The executive order started March 20th of 2025, improving education outcomes by empowering parents, states, and communities.

0:22:29 Jenessa: Doesn't it though? So nice. Um, it's not. So they were saying, essentially, we're going to turn education back to the states but you literally can't do that because congress made the department of education not the president yes

0:22:28 Thomas: But that sounds so good yeah well plus weren't they just wrong about like the department of education doesn't actually set like curriculum or anything like that really what they do is all the stuff you're talking about like mainly make sure people have equal access to stuff I think they genuinely didn't know that or at least a lot of the voters

0:22:59 Jenessa: And they like entirely possible to be honest with you like really the reason you can't have jesus is the correct god bible class is because of the the Supreme Court. It's not the Department of Education that does that.

0:23:15 Thomas: Didn't oof yeah I don't know about that anymore bad example yeah

0:23:19 Jenessa: That was the reason that you used to not do that. People are convinced that the Federal Department of Education is the reason your kid learns about evolution. And it's like, no, they learn about evolution because you can't teach creationism, again, previously because of the Supreme Court. They're learning about evolution because it's real and you have to understand science for some jobs. Shortly after that executive order, they put out this announcement about all these offices within the Department of Education that were going to move other places. The Office of Elementary and Secondary Education and the Office of Post -Secondary Education, just all the education I guess, is going to be transferred to the Department Of Labor.

0:24:06 Jenessa: Then they fired about 50 % of the workforce. Immediate lawsuit. The lower courts put an injunction in. They said, yeah, yeah, you can't just like fire half the staff and start moving all these departments like Congress created the Department of Education. What are you doing? And of course, on the shadow docket, the Supreme Court stayed the induction and said, go right ahead and do what you're going to do.

0:24:30 Thomas: Unreal and we don't even get to know why don't ever get to you know, their reasoning, just bullshit.

0:24:33 Jenessa: No, per curiam, no explanation. There is a dissent from Sotomayor joined by Kagan and Jackson. So So that's always my favorite when they try to, yeah. It's really the best way to get around that issue of

0:24:43 Thomas: So it's impossible to know who the people who did it are. Yeah.

0:24:51 Jenessa: Like, nobody's gonna explain themselves. Like, oh, we will explain ourselves and then you can just take a guess.

0:24:57 Thomas: Yeah. I get pretty upset when the liberals don't do this, to be honest. I don't know if they're overworked or whatever, but anytime there's a bad shadow docket decision of any kind, there should be three dissents or a dissent that's signed on by three people.

0:25:11 Jenessa: It's worth saying something every time to just put these people on the record. We should know who did what. If they wanna sit there and be like, it wasn't 6 -3, it was 5 -4. Well, then you should have joined the dissent or you should've written your own little concurrence or something. If you don't want your name stained with this, then say something. Also an option. Completely also an option that the lower court did an injunction and you didn't need to review the injunction while this thing, like, why was it urgent? Yeah.

0:25:29 Thomas: Or just stop doing shadow dovet nonsense. That's another way to do it.

0:25:47 Thomas: Yeah you without the facts, that the lower court already did a fact finding of and all that with less information and less expertise in this particular case, you don't need to undo often the hard work of good circuit court judges. Well, that sucks.

0:26:03 Jenessa: With no oral argument, no time to prep and just yeah so that that really sucked the way they did it so it's all up in the air the legality of this part inter -agency agreement when one executive agency sets up an agreement with another one not inherently a problem not necessarily weird or anything it's happened before yeah I

0:26:32 Thomas: I think what you're saying is when one federal agency loves another federal agency very much. So let's give us a normal example of this. Like what's a not bad bad one.

0:26:43 Jenessa: Saw some stuff about budget offices working together if there was like some interdisciplinary research that would benefit both the department of education and health and human services like you might work together on a research study or share resources to avoid avoid duplicating efforts, essentially.

0:27:04 Thomas: In the good case, it sounds pretty straightforward, but I guess the constitutional issue is like, hey, Congress designated these things and you can't just like combine or take apart departments. But this is a workaround that's like, oh no, we're just kind of working together here in this way. Is that what you're saying? Oh, wow.

0:27:21 Jenessa: Exactly, exactly. Nobody would think you're like subverting what Congress intended if the Department of Labor and the Department Of, I don't know, the Office of Budget Management or whatever, if they like worked together on a research paper and they pooled their resources, that's not hurting what Congress attended for the Department of Labor, right? Like, if anything, them working together makes total sense, depending on the issue.

0:27:53 Jenessa: The issue here is when you have an interagency agreement where the Department of Education is just going to move the Office of Elementary and Secondary Education and the Office of Post -Secondary Education into the Department Of Labor.

0:28:04 Thomas: I wish I could have tried that in my office. Hey, inter -office agreement, you do my job now. I don't want to do it.

0:28:14 Jenessa: Elementary and secondary and post -secondary, that's just all of the education. What is left? It doesn't make any sense. And like why labor post -secondary like I I could see sure

0:28:20 Thomas: Yeah yeah uh uh the hard knocks uh street education I don't know I'm not sure yeah that was the only thing I was thinking is those weird like trade school things like that kind of could make sense

0:28:37 Jenessa: I could see them cooperating on something having an agreement that we're gonna do a cooperative something but why would you move to the department of labor there's no logic to it except what is in the complaint for the lawsuits about this is extensive documentation of the executive order of all the public statements they cite to fox news news broadcasts yes where they say we are doing this as part of the effort to dismantle the department of education I am confessing to the crime please hit record on your vhs

0:29:04 Thomas: Yeah propaganda bits yeah hmm oh boy it's amazing how much they do that and how much THEY STILL DO THAT AND HOW MUCH THEY GET AWAY WITH IT LIKE Like, yeah, that cat, you know, we catch them on that sometimes with some of these prosecutions and stuff where they just say we're doing the bad stuff for the bad reasons. But honestly, not all the time. And I think it's the impunity in the fact that they are in such power and across so much of the government that they still feel like they can just do that.

0:29:41 Jenessa: Yeah they just say it out loud and then the problem is we put it in a lawsuit and this lawsuit suit has to crawl through the courts and if the supreme court stays the injunction then while it crawls through the court the actions are still ongoing so the lower court said hey no while we figure this all out obviously the department of education has to keep doing what it's supposed to be doing because high likelihood of success on the merits I the judge happen to think you're gonna win this and they're not going to be able to dismantle this department without congressional approval when the supreme court gets rid of that it basically means while this winds through the courts they do succeed in blowing everything up that's the biggest problem as a comparison a lot of times trump has put out these ridiculous executive orders on voting issues And there's just a lawsuit and there's an immediate injunction and those have not Hit shadow docket and gotten stayed for the most part.

0:30:51 Jenessa: He can just sit there and say all kinds of stupid shit It's not gonna happen No, you can't just Federalize the voting system with an executive order What are you doing and the Supreme Court is not going to intervene and support that it's easier to just say these executive orders are stupid stupid, and pointless when it's just him spouting off, but this becomes a real problem. We got a lawsuit ongoing. They are just, as the department continues to fire people and move agencies, they just amend the complaint to just add one more thing to it as we continue to progress. The docket for that lawsuit, I checked through it today. There's a whole bunch of discovery orders going in so this is state of new york v linda mcmahon the wrestling mogul slash head of literally nothing yeah so fun uh it'd be really cool real cool if we could put somebody with like any education experience back in charge of that department that'd be great instead what we're doing is we're gonna just keep moving things out I thought this was interesting the bipartisan Partisan Policy Center. They do analysis of like, okay, the government has done a thing, like how's that going to work out for everybody? They concluded that basically as you start moving these out, you still have to contact the Department of Education. Like if you have questions or issues or you need to raise something with them, now it just means you have to contact the Dept. Of Education and the Dep. Of Labor and you have have to pay like two people instead of one

0:31:45 Thomas: The wife of the wrestling guy, what does she have to do? Oh, that's right. Right? That's our secretary of education. Oh God. So

0:32:40 Jenessa: Is moving the responsibilities to a person who has no specialized training in education. It'll cost more money instead of less. And then also the Department of Labor staff who are also getting downsized and overworked. Now they have to get trained to handle Department of Education issues. It's just going to cost more and be less effective. Like it's not saving anybody any money. No to all of this. Bad news.

0:33:05 Thomas: This is in the, in the cycle of Republicanism. This is the break it and then get mad at it for not working and then defund it. We're in the break it phase of this one, I guess. Okay.

0:33:16 Jenessa: Correct. Exactly. Put Put somebody in charge who never signed up for this and has no specialized training in this and make you contact the person who has the specialized training who is now obligated to forward you to the guy who doesn't know what he's doing and did not want to take this phone call. And that's how that'll all work now. And force two agencies to collaborate on what should have just been one agency to begin with. Make government into the thing that republicans tell you government is which is a bureaucratic nightmare not better at all it's essentially they're saying they're going to dismantle the department of education they can't get rid of the office they just move it somewhere else where it will be less effective and more messy and cost more money but we did a thing so there's that that was back in 2025 they said okay we're going gonna do all of this we're gonna move all these these things. They had left alone special education and the Office of Civil Rights. Now, just last week, two days apart from that Olmstead announcement, they said, we're going to move special education to health and human services. So now, instead of, okay, I'm having a problem with special education, who do I talk to? I talk the Department of Education, people who are specialized in education, who are specialized in special education, educators, I'm going to talk to Health and Human Services. We're going to medicalize everything.

0:34:52 Thomas: Well, we have someone good in charge of that one, right?

0:34:55 Jenessa: Yeah, no.

0:34:57 Thomas: Hey,

0:34:57 Jenessa: People are immediately raising every alarm bell that it's like, hey, so the guy who has just like demonized kids with disabilities is going to be in charge of their education. Their special ed programs are now governed by, administered by, RFK Jr. That doesn't make any sense. He has no training in this whatsoever. If anything, he seems invested in them.

0:35:21 Thomas: Bill Cassidy. Are you happy? Are you happy with your confirmation vote did it serve you well how you doing did it serve either reality the facts or medical science well and and did it even serve your career well how are you doing Bill Cassidy was that a great decision you made asshole

0:35:43 Jenessa: I'm never going to get over that one. Mitch McConnell had the balls to not vote for the guy and

0:35:49 Thomas: Really I forgot about that man

0:35:49 Jenessa: Bill Cassidy. Yeah. Oh, Mitch McConnell was like, I lived through polio. I am not voting for that guy.

0:35:53 Thomas: Yeah he's like medical science is the only reason I'm still alive because I've just the pure embodiment of evil so I'm gonna vote against the anti -science guy

0:36:03 Jenessa: We were so close to not having to deal with

0:36:07 Thomas: I don't know younger generation if you're listening I can't tell you how much we thought mitch mcconnell was the epitome of evil was like the the worst baddie that you could ever have did everything like just and successful like like a successful baddie and then it's just wild to see him be like the voice of reason like you're You're almost like, oh my God, that I'll, I would take Mitch McConnell over nearly everybody now in MAGA. Like it's, I can't describe how crazy that is. If, if anyone to anyone who wasn't around back then, it's nuts. Like that's how far we've, we've come. It's really insane.

0:36:24 Jenessa: This oh yeah if you told me I would ever get a reasonable vote out of him yeah I you could have knocked me to the floor it's just shocking it's the overton window thing it's just like moving him to he's still not anywhere near the center but moving him anywhere other than the furthest right possible is shocking. You might remember, it's actually my second episode ever. In episode 1141, we talked about Section 504 of the Rehabilitation Act. And in 1171, we talking about AJT versus Osseo Area Schools. That one, you might remember as attorney argues in front of the Supreme Court and attempts to get herself yeeted into the sun by Gorsuch.

0:37:38 Thomas: Oh, the one who was like how not to argue in front of the Supreme court. That was crazy. Yeah. Okay. I remember that. That was like two weeks ago I remember yeah when we talked about that

0:37:42 Jenessa: Yes. Yeah, that was a pretty wild one.

0:37:49 Jenessa: Yeah. A lot of what we talked about was Section 504 and the IDEA, the Individuals with Disabilities Education Act. Under 504, any student with a disability can get a 504 plan. It's like basic accommodations. I need breaks. I I need to sit at the front of the class. Very similar to the accommodations process you'd go through with an employer. If they're a private employer, it would be under the ADA instead of Section 504. But it's basically the same thing. It applies to public schools and private schools that accept federal funding.

0:38:26 Jenessa: The IDEA, there's a specific list of 13 disabilities as opposed to like an ADA disability is just any impairment that is affecting your ability to do certain life functions that's relevant to the situation. For that one, there's 13 disabilities. It's how you get an IEP for a kid, Individualized Education Plan. So that one only applies to public schools. They have more procedural protections than a 504 plan, and they have to be in writing. It is always good to get a 504 in writing, but technically it's not like legally required. Your public school has to provide FAPE, Free Appropriate Public Education. If your public district can't provide that, they have to find you a reasonable alternative. Essentially if you find a reasonable at a private school, your district might be required to pay to place you in the private school. It's essentially your IEP will say you're gonna go to this special school that is tailored to a disability. It has to be reasonable and you have to demonstrate the school's really not providing FAPE and all of that. But essentially at that point for the private school to keep receiving funds, they're going to have to comply with the IEP and therefore the IDEA. So it's a rare circumstance where the IDEA will apply in that private school. Why am I bringing all of this up? Just as a reminder that these people love to try to sell you on school choice and voucher programs where like some state is going to give every parent, regardless of a kid's disability, just here's some money to spend on tuition at a private school of your choice. You get to choose. If you just choose to send your kid to a private school because you think it's going to be better for them given a disability with or without some voucher program in place, they're not going to be entitled to those protections. Actions.

0:40:24 Jenessa: This only counts if they go to the private school as part of their IEP because the public school couldn't give them what was required. These voucher programs are just hurting kids with disabilities. It's taking money away from the public school, and the public schools is where those kids are protected. There's often a conflation of this idea that rarely under the IDEA, a kid with a disability could get what I suppose you could call a voucher to go to a very specific private school as part of their IEP. Conflating that with these like Republican voucher programs, it's not the same thing.

0:41:03 Thomas: Right yeah actually that was my first thought when you were describing

0:41:07 Jenessa: If you took advantage of those like just general voucher problems, you could send your kid to a school where your kid is not entitled to legal protection. There's no requirement they have a special ed program. They're a private school. They are not accepting federal funding. They might not even have to comply with the 504 requirements. They might not have a ramp for a kid with a wheelchair. And then all of a sudden people are surprised when it's like, look at their amazing test scores.

0:41:32 Jenessa: And it's, like, yeah, they kicked out every kid with disability. Exactly. Everyone who was struggling isn't allowed to be here. The public school is legally obligated to give every kid a free appropriate public education. They have to make it work, even for the kids who are really struggling. So, like, who's surprised by any of this? Usually, what would happen if you are in a school that is not providing free appropriate public education, not complying with 504, not complying with the IDEA, you know, in one way or another, you feel like your kid is being discriminated against. You would complain to OCR, the Office for Civil Rights, housed inside the Department of Education.

0:41:32 Thomas: It yeah eugenics yeah wow

0:42:15 Jenessa: Now they're going to try to move it to the DOJ which is already like wildly understaffed and overworked and doesn't specialize in this even before that under this administration there have been huge problems over at OCR ProPublica sued the Department of Education back in March for not answering their FOIA requests related to OCR when Biden left office there were approximately 12,000 open OCR complaints about discrimination.

0:42:47 Jenessa: By December of 2025, it was nearly 24,000. It had almost doubled. They laid off 29% of the staff. They went down to just 403 employees at OCR. They closed seven out of the 12 regional offices across the country. And now it looks like most complaints are getting dismissed with no investigation happening. One report from the the Government Accountability Office, it looked at the period from March 2025 to September 2025, 90% of cases were dismissed without an investigation. It's already not going great over there, and now they want to move it to the Department of Justice instead, where nobody has the specialization, nobody has been working on this. Just spend their time investigating whether other white kids are getting discriminated against. Yeah.

0:43:44 Thomas: It's just way easier to break stuff than to make stuff of so many words that's kind of what's going

0:43:50 Jenessa: I think it's really telling, honestly, that these two orders came out really close together and are both going to hit people with disabilities pretty hard. The idea that when you're in school, we're not going to protect you from discrimination. We're going to turn over. Special education is medicalized now. It's going to become not an education issue, but a health issue. And we don't need education experts to deal with it. We need health experts to deal with that. A lot of organizations have said this is just segregation. This is taking what would be, well, everybody else's education goes over here, but your education has to go in the health department because you have special health problems. It's medicalization. The discrimination complaints are going to go to the people who their way of handling discrimination is all focused on this reverse discrimination idea. If they're even worrying about it at all. Most of the DOJ at this point is just doing immigration stuff. And then when you get out of school and you got a crap education because nobody was protecting you from this discrimination, also you're going to go into an institution and nobody's going to protect you from that either. We're not going to enforce anything that would put you into a more integrated setting that you're capable of living in. I think the biggest thing is when we finally get control over these things again, putting the pressure on and not forgetting about this. I could imagine it being 10, 20, 30 years down the road, people not questioning why is special ed in the health department?

0:45:31 Jenessa: Like, oh, yeah, because I have health issues. Like, not thinking about how that is actually weird. It's education. Yeah. Mm

0:45:31 Thomas: On yeah this kind of stuff once it's priced in a lot of people almost universally we're just like well you know that's how it is I'm sure someone's working on I've said this for years now actually that we need a project 2029 but by communists or some shit like just the furthest left stop thinking first about what is feasible and what it's going to be okay and stop self-moderating. Let's just get a radical document, a radical set of goals, at least as a starting point. And it's just hard because again, it is way easier to break than to make. It is way easy to get a bunch of reactionary people on the same goal. It's harder to get diverse coalition of people that honestly have a lot more viewpoint diversity than the right. I mean, the left just does because it's a coalition of people that is way more broad. It's a consequence of a lot of stuff, but also it's a consequence of racism on the right. It's just a lot of people move to the left who don't necessarily all think of the same things in terms of policy goals and all that. And so it's harder. People think that this just should be easy. It's not easy, but at the very least I hope that we can get some momentum around a set of goals. And again, what they did was they just shamelessly want the fascism. Shamelessly, they want the worst outcomes. They want to rip everything apart. And they're proudly saying it. And I think we should just do the other way. I think We should campaign on putting a lot of these people in prison. We should campaign on radical change the other way, accepting all asylum claims, like 90%, whatever, just something as long as it's not actually fraudulent or whatever,

0:46:39 Jenessa: Mm-huh. Yeah. Yeah. Yeah.

0:47:16 Thomas: You know, just stuff like that, like just radical stuff like that. Because you're right, I think what will happen is people will get used to the status quo and they won't want to change it.

0:47:26 Jenessa: Especially young people who are aging into this. There are people alive today who pretty much only know Trump as president. There was like Trump, Biden, Trump. They lived in a Trump world. They don't know a world before Trump was president and everything was falling apart. And they don't know what it was like to have a government that was just kind of working. Biden was in the like trying to get things to even function again after recovering from Trump and recovering from COVID. And then we went right back to it. We just have to put this on the record like what it used to be like and how it used to work and not that it was perfect before. But don't normalize this. It's not normal that, well, of course, it's a civil rights complaint. Why doesn't it go to the DOJ? No, because there are people who specialize in what educational discrimination looks like. And that's why we have and should continue to have a Department of Education that specializes in this. Like, don't lose this. Forget about this. Record this. Explain it to people. Don't let it get normalized that we're just going to segregate out disability and forget about it.

0:48:39 Ad: [Ad break 3 — ad music]

0:48:39 Jenessa: Okay, so the last thing I've got for you today pretty quick is about the post office. I'm going to call this good news in advance because I think there's no way this is going to go through. No.

0:48:50 Thomas: So it's not a good thing happening. It's like a bad thing's not going to happen. Okay, you're right. I should have. That's on me.

0:48:54 Jenessa: Yeah, yeah, yeah. This is terrible. If it were to happen, it would be terrible. It's not going to happen. Trump's back on his bullshit again about mail-in ballots. Put out an executive order. You know how all these states are, he's trying to get everybody's voter rolls because he's convinced he's going to find a non-citizen voting. Some states are just giving. And some states are like, absolutely not. The new executive order is, okay, well, seeing as you won't give it to us, and the courts are saying, at least for the pendency of these lawsuits, you don't have to give it to us. Well, what we're going to do is we're gonna tell the post office that if your state has not turned over the voter rolls to not deliver the ballots.

0:49:35 Thomas: Yeah. Which is insane.

0:49:38 Jenessa: Yeah, I mean, like, it's just not going to happen. If the courts have said you at least for now do not have to turn over your voter rolls, probably never have to turn over your voter rolls, they're definitely not going to let him punish you for not turning over your voter rolls. There's no way you're not at least going to get a preliminary injunction by November.

0:50:01 Jenessa: I'm just not worried about this. It's also completely impractical. Your mailman is going to try to figure out, oh well in this state we don't deliver absentee ballots, but you're mailing it to a state that does have absentees. So I do take this letter, I don't take this. Like this is just not feasible to put it on postal workers. I've even heard that perhaps the postal union may go on strike if they tried to actually implement this. It's just not going to happen. It is ridiculous. The courts are going to stop it. The postal union is not interested in participating in this. So the most important thing there I think is like just don't even give this air. Don't scare people into thinking one more reason to worry about their ballot.

0:50:48 Thomas: Not happening.

0:50:49 Jenessa: It's not worth your energy to worry about this. It is not happening. Yeah, I hope I can give a little relief on that one. I will be absolutely blown out of the water if a court allows this to happen.

0:51:01 Thomas: It's basically Trump just writing a note saying, all right, well, the states that I don't like have lost election privileges. Go to your room. It's like, that's, we don't have a room. We can't do that. That's not how voting is. All right. Well, that's good.

0:51:15 Jenessa: Oh, yeah. And I forgot I left this out when we talked about the Olmsted part, I do have an action item for you. It doesn't have to all be depressing. The Latanya Reeves Freedom Act has been reintroduced, I'm pretty sure as a direct response to this, because it was like a couple of days later, basically just tries to take Olmstead and make it a statute instead of relying on a Supreme Court decision that relies on a DOJ regulation. Let's just make it the law that you actually have a right to be out in the community and to be in the most integrated setting. Yeah, if you want to take some action on that, I think that would be a great one to call your representatives and say that you support this. Disability rights, activist groups, I'm seeing a lot of excitement for it. So yeah, hopefully that's a positive note for us to end on.

0:52:10 Thomas: All right. While that's been MAGA ruining your government, the update verdict, they're doing a pretty good job ruining things, but not everywhere and still avenues for resistance. So thanks, Jenessa. Thanks as always, everyone for listening. Please share the show. Please support the show really important that we get this information out there and we'll see you next time.

0:52:18 Jenessa: Hang Hold on a second. I have to get rid of this stupid cat. At.

0:53:07 Thomas: There's nothing, there's a law that says a dog can't play baseball.

0:53:15 Jenessa: There's some piece of paper he's decided is like really important to murder.

0:53:20 Thomas: Essentially go to your room.

0:53:23 Jenessa: I lived through polio. I'm not voting for that guy.