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Amdip Annual Meeting Of Law School Diversity Professionals: Hosted By Roger Williams University School Of Law: April 23-25, 2024, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Ochoa, Big Ten Law Deans Pledge Support For Diversity Ahead Of Scotus Affirmative Action Ruling, The Indiana Lawyer

Christiana Ochoa (7/22-10/22 Acting; 11/2022-)

s the U.S. Supreme Court prepares to hand down a decision that could fundamentally alter affirmative action, a group of law school deans — including Dean Christiana Ochoa of the Indiana University Maurer School of Law — has issued a statement affirming the deans’ commitment to diversity.

The group of 15 deans represent Big Ten law schools, including IU Maurer. In their statement — which IU Maurer posted to its official Facebook page — the deans say they are “joining together to affirm our commitment to advancing diversity, equity, and inclusion through legally permissible means, regardless of the outcome of …

Introduction: Access To Healthcare Symposium, Yvonne F. Lindgren

Faculty Works

The four Articles in this Access to Healthcare symposium edition address the different ways that the U.S. healthcare delivery system is failing marginalized communities, including individuals who are disabled, who are birthing, who are women of color or represent another marginalized group, or who live in poverty. The result is a rich conversation that uncovers the complex systems that contribute to unequal access to health care and unjust disparities in health outcomes in the United States.

Mental Health Care And Intimate Partner Violence: Unasked Questions, Delaney E. Anderson, Richard C. Boldt

Faculty Scholarship

There is significant overlap between the group of people who experience trauma, including domestic or intimate partner violence, and those who are hospitalized for severe mental illness. In recent years there has been a growing awareness in the mental health treatment community of the prevalence of trauma among individuals with behavioral health problems. Despite the strong evidence of elevated rates of exposure to domestic or intimate partner violence among individuals experiencing mental illness (including depression, anxiety, and posttraumatic stress disorder), mental health professionals often do not effectively address this co-occurring factor in assessing and treating their clients or patients. The …

Critical Tax Theory: Insights From The Us And Opportunities For All, Anthony C. Infanti, Bridget J. Crawford

Articles

At a moment when Australia -- and the world -- finds itself at a "critical juncture" as it reckons with a global pandemic as well as the inequalities that COVID-19 has laid bare, voicing -- and listening to -- critical tax perspectives has become more vital than ever. The economic impact of COVID-19 has precipitated talk of tax reform as nations consider how to pay for aid distributed during the pandemic and how to restart their economies. But more than just a time of crisis, the pandemic can be seen as an unexpected opportunity to break with a past plagued …

Disability And Reproductive Justice, Samuel Bagenstos

Articles

In the spring of 2019, disability and abortion rights collided at the Supreme Court in a case involving an Indiana ban on “disability-selective abortions.” In a lengthy concurrence in the denial of certiorari, Justice Thomas argued that the ban was constitutional because it “promote[s] a State’s compelling interest in preventing abortion from becoming a tool of modern-day eugenics.” Just a few months earlier, disability and reproductive rights issues had intersected in a very different way in the debate over the nomination of Brett Kavanaugh to the Supreme Court. Disability rights advocates drew attention to an opinion then-Judge Kavanaugh had written …

Reproducing Dignity: Race, Disability, And Reproductive Controls, Mary Crossley

Articles

Human rights treaties and American constitutional law recognize decisions about reproduction as central to human dignity. Historically and today, Black women and women with disabilities have endured numerous impairments of their freedom to form and maintain families. Other scholars have examined these barriers to motherhood. Unexplored, however, are parallels among the experiences of women in these two groups or the women for whom Blackness and disability are overlapping identities. This Article fills that void. The disturbing legacy of the Eugenics movement is manifest in many settings. Black and disabled women undergo sterilizations at disproportionately high rates. Public benefit programs discourage …

The Daily Work Of Fitting In As A Marginalized Lawyer, Kim Brooks

Articles, Book Chapters, & Popular Press

Despite increased public dialogue about the need for inclusion, marginalized lawyers adjust their behaviour to “fit” in their legal workplaces. In this article, the author presents the results of interviews with lawyers in Canada who self-identify as belonging to a marginalized group based on race, ethnicity, Indigeneity, gender or sexual identity, working-class background, and/or disability. Based on these interviews, the author advances a taxonomy of the five strategies employed by these lawyers to fit in to their workplaces: covering strategies, compensating strategies, mythologizing strategies, passing strategies, and exiting strategies. Marginalized lawyers employ covering strategies, which may be appearance-, affiliation-, advocacy-, …

The Future Of Disability Rights Protections For Transgender People, Kevin M. Barry, Jennifer Levi

Faculty Scholarship

The Americans with Disabilities Act and its predecessor, Section 504 of the Rehabilitation Act of 1973 (“Section 504”), protect people from discrimination based on disability, but not if the disability is one of three archaic medical conditions associated with transgender people: “transvestism,” “transsexualism,” and “gender identity disorders not resulting from physical impairments.” This Article describes the origins of transgender exclusion and discusses why a growing number of federal courts find this exclusion does not apply to gender dysphoria, a new and distinct medical diagnosis. Further, the Authors define the future of disability rights protections for transgender people.

Article 6 – Women With Disabilities, Roxanne Mykitiuk, Ena Chadha

Articles & Book Chapters

The Convention on the Rights of Persons with Disabilities (‘CRPD’ or ‘Convention’) is a milestone achievement for women and girls with disabilities, with its inclusion of a gender-sensitive approach and Article 6, which speaks directly to gender-disability discrimination. Prior to the CRPD, most international human rights instruments failed to address both disability and gender in their provisions. Many instruments were attuned to either gender to the exclusion of disability, or disability to the exclusion of gender. The recognition of the unique experiences of gender and disability-based discrimination animates the spirit behind several of the CPRD’s provisions and, specifically, the content …

Blatt V. Cabela's Retail, Inc. And A New Path For Transgender Rights, Kevin M. Barry, Jennifer L. Levi

Faculty Scholarship

Since the Supreme Court recognized marriage equality in Obergefell v. Hodges, civil rights advocates have increasingly set their sights on transgender rights as the next legal frontier. Sex discrimination law, though an essential statutory tool, is not the only potential avenue for securing rights for transgender individuals. Another important federal source of protection for transgender people is disability rights law—in particular, the Americans with Disabilities Act (ADA). Disability rights law, unlike sex discrimination law, applies to public accommodations and government services, and also mandates reasonable accommodations. A transgender litigant successfully invoked the protections of the ADA for the first time …

Section 5: Civil Rights And Liberties, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

A Bare Desire To Harm: Transgender People And The Equal Protection Clause, Kevin M. Barry, Brian Farrell, Jennifer Levi, Neelima Vanguri

Faculty Scholarship

The U.S. Supreme Court’s decision in Obergefell v. Hodges establishing marriage equality for same-sex couples marks a major shift in recognizing gay, lesbian, and bisexual people as a central part of the fabric of American society. Obergefell also marks the passing of the torch from “LGB” to “T”; the next civil rights frontier belongs to transgender people, for whom key barriers still remain. In January 2015, a transgender woman filed an equal protection challenge to a provision of the Americans with Disabilities Act (“ADA”), which explicitly excludes several medical conditions closely associated with transgender people. In support of this challenge, …

Ethics And Matrimonial Representation Annotated Bibliography, Barbara Glesner Fines, Nancy Levit

Faculty Works

No abstract provided.

Normalizing Disability In Families, Mary Crossley

Articles

In “Selection against Disability: Abortion, ART, and Access,” Alicia Ouellette probes a particularly vexing point of intersection between ART (assisted reproductive technology) and abortion: how negative assumptions about the capacities of disabled persons and the value of life with disability infect both prospective parents’ prenatal decisions about what pregnancies to pursue and fertility doctors’ decisions about providing services to disabled adults. This commentary on Ouellette’s contribution to the symposium titled “Intersections in Reproduction: Perspectives on Abortion and Assisted Reproductive Technologies" first briefly describes Ouellette’s key points and her article’s most valuable contributions. It then suggests further expanding the frame of …

Paid Family Leave, Rachel-Lyn Longo, Shanna Pearson-Merkowitz

Senior Honors Projects

Paid Family Leave policies are rare in the United States. Around the world, one hundred and eighty-two countries provide some form of paid maternity leave, and seventy countries also offer paid paternity leave. It is estimated that only 36 percent of U.S. employees have access to paid leave if they get sick, a policy that is almost universal in other developed countries, and only 12 percent of employees have access to paid family leave. Presently, just three states have implemented Paid Family Leave (PFL) to help offset the cost of time taken off of work to care for a newborn …

A Critical Research Agenda For Wills, Trusts And Estates, Bridget J. Crawford, Anthony C. Infanti

Articles

The law of wills, trusts, and estates could benefit from consideration of its development and impact on people of color; women of all colors; lesbian, gay, bisexual, and transgendered individuals; low-income and poor individuals; the disabled; and nontraditional families. One can measure the law’s commitment to justice and equality by understanding the impact on these historically disempowered groups of the laws of intestacy, spousal rights, child protection, will formalities, will contests, and will construction; the creation, operation and construction of trusts; fiduciary administration; creditors’ rights; asset protection; nonprobate transfers; planning for incapacity and death; and wealth transfer taxation. This essay …

Gilbert Redux: The Interaction Of The Pregnancy Discrimination Act And The Amended Americans With Disabilities Act, Deborah Widiss

Articles by Maurer Faculty

Pregnancy — a health condition that only affects women — raises complicated questions regarding the interaction of employment policies addressing sex discrimination and those addressing disability. The Pregnancy Discrimination Act (PDA), enacted in 1978, mandates that employers “shall” treat pregnant employees “the same for all employment-related purposes” as other employees “similar in their ability or inability to work.” Despite the clarity of this language, some courts permit employers to treat pregnant employees less favorably than employees with other health conditions, so long as the employer does so pursuant to a “pregnancy-blind” policy such as accommodating only workplace injuries or disabilities …

A Situational Approach To Incapacity And Mental Disability In Sexual Assault Law, Janine Benedet, Isabel Grant

All Faculty Publications

Prosecutions for sexual assault most often focus on whether the Crown has proven that the complainant did not consent to the sexual activity in issue, based on her subjective state of mind at the time of the offence. However, Canadian criminal law also provides that no consent is obtained where the complainant is incapable of consenting. In cases where the complainant has a mental disability affecting cognition or decisionmaking, prosecutors in Canada have been reluctant to argue that the complainant was incapable of consenting. In this article, the authors agree that claims of incapacity should be used sparingly, but contend …

Does The Constitution Protect Abortions Based On Fetal Anomaly?: Examining The Potential For Disability-Selective Abortion Bans In The Age Of Prenatal Whole Genome Sequencing, Greer Donley

Articles

This Note examines whether the state or federal government has the power to enact a law that prevents women from obtaining abortions based on their fetus’s genetic abnormality. Such a ban has already been enacted in North Dakota and introduced in Indiana and Missouri. I argue below that this law presents a novel state intrusion on a woman’s right to obtain a pre-viability abortion. Moreover, these pieces of legislation contain an outdated understanding of prenatal genetic testing—the landscape of which is quickly evolving as a result of a new technology: prenatal whole genome sequencing. This Note argues that the incorporation …

Unprotected Sex: The Pregnancy Discrimination Act At 35, Deborah L. Brake, Joanna L. Grossman

Articles

Thirty-five years ago, Congress passed the Pregnancy Discrimination Act to overturn a Supreme Court decision refusing to recognize pregnancy discrimination as a form of discrimination based on sex. Now, three and a half decades later, women whose work lives are impacted by pregnancy are again finding themselves unprotected from discrimination. Lower court rulings have eviscerated the Act’s protections at the same time that an expansion of worker rights under the Americans with Disabilities Act should redound to the benefit of pregnant women by expanding the pool of comparators who receive accommodations. By following trends in discrimination law generally - equating …

A Female Disease: The Unintentional Gendering Of Fibromyalgia Social Security Claims, Dara Purvis

Journal Articles

Social Security disability claims are not supposed to be decided based on the gender of the applicant. Reliance on the apparently neutral mechanism of clinical medical evidence, however, has a disproportionate impact on women bringing disability claims based on fibromyalgia. Recognizing and identifying disability has been delegated by Congress and the Social Security Administration almost entirely to physicians, based upon a misguided and mistaken belief that clinical medical evidence evaluated by a trained physician will answer with certainty whether an individual claimant is capable of working. Fibromyalgia, a diffuse syndrome characterized by excess pain that is overwhelmingly diagnosed in women …

Pregnancy As 'Disability' And The Amended Americans With Disabilities Act, Jeannette Cox

School of Law Faculty Publications

The recent expansion of the Americans with Disabilities Act’s (ADA) protected class invites reexamination of the assumption that pregnant workers may not use the ADA to obtain workplace accommodations. The ADA’s scope now includes persons with minor temporary physical limitations comparable to pregnancy’s physical effects. Accordingly, the primary remaining justification for concluding that pregnant workers may not obtain ADA accommodations is that pregnancy is a physically healthy condition rather than a physiological defect. Drawing on the social model of disability, this Article challenges the assumption that medical diagnosis of “defect” must be a prerequisite to disability accommodation eligibility. The social …

Let's Disable Her Further, Shall We? The Cast Of Gender On Disability Rights In The Iranian Context, Hengameh Saberi

Articles & Book Chapters

No abstract provided.

What Best To Protect Transsexuals From Discrimination: Using Current Legislation Or Adopting A New Judicial Framework, S. Elizabeth Malloy

Faculty Articles and Other Publications

This article specifically examines the issues and controversies that transsexual individuals have encountered as a result of their lack of protection under anti-discrimination laws, particularly the Americans with Disabilities Act (ADA) and Title VII. Part I is an overview of our society's binary sex/gender system and how this system serves to exclude and disenfranchise transsexuals. Part II examines the relationship between disability law and transsexuals, both explaining why they were excluded from the ADA and how state disability laws have provided more protection. Part III discusses how transsexuals have fared under a Title VII sex discrimination approach. This section also …

Race, Sex And Genes At Work: Uncovering The Lessons Of Norman-Bloodsaw, Elizabeth Pendo

All Faculty Scholarship

The Genetic Information Nondiscrimination Act of 2008 (“GINA”) is the first federal, uniform protection against the use of genetic information in both the workplace and health insurance. Signed into law on May 21, 2008, GINA prohibits an employer or health insurer from acquiring or using an individual’s genetic information, with some exceptions. One of the goals of GINA is to eradicate actual, or perceived, discrimination based on genetic information in the workplace and in health insurance. Although the threat of genetic discrimination is often discussed in universal terms - as something that could happen to any of us - the …

Critical Tax Theory: An Introduction, Anthony C. Infanti, Bridget J. Crawford

Book Chapters

Our book Critical Tax Theory: An Introduction (Cambridge University Press 2009) highlights and explains the major themes and methodologies of a group of scholars who challenge the traditional claim that tax law is neutral and unbiased. The contributors to this volume include pioneers in the field of critical tax theory, as well as key thinkers who have sustained and expanded the investigation into why the tax laws are the way they are and what impact tax laws have on historically disempowered groups. This volume will provide an accessible introduction to this new and growing body of scholarship. It will be …

Pregnancy Discrimination And Social Change: Evolving Consciousness About A Worker's Right To Job-Protected, Paid Leave, Patricia Shiu, Stephanie Wildman

Faculty Publications

This Article examines the change over the past few decades in U.S. law and societal attitudes concerning a worker's right to job-protected, paid leave. Though common around the world, job-protected, paid leave eludes the U.S. workforce. The authors begin by considering the concept of work, its relation to identity, and the construction of safety nets for workers when they need income replacement. The Article considers the movement to establish job-protected, paid leave that encompasses and values a worker's work, family, and personal life.

The modern movement originated with pregnant workers' need for time away from work during pregnancy. Women who …

Mining The Intersections: Advancing The Rights Of Women And Children With Disabilities Within An Interrelated Web Of Human Rights, Rangita De Silva De Alwis

All Faculty Scholarship

No abstract provided.

Simplify You, Classify You: Stigma, Stereotypes And Civil Rights In Disability Classification Systems, Michael L. Perlin

Articles & Chapters

In this paper I consider the question of the extent to which sanism and pretextuality - the factors that contaminate all of mental disability law - do or do not equally contaminate the special education process, and the decision to label certain children as learning disabled. The thesis of this paper is that the process of labeling of children with intellectual disabilities implicates at least five conflicts and clusters of policy issues:

* The need to insure that all children receive adequate education

* The need to insure that the cure is not worse than the illness (that is, that …