Open Access. Powered by Scholars. Published by Universities.®

Disability Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 27 of 27

Full-Text Articles in Disability Law

Educational Equality For Children With Disabilities: The 2016 Term Cases, Samuel R. Bagenstos Nov 2017

Educational Equality For Children With Disabilities: The 2016 Term Cases, Samuel R. Bagenstos

Book Chapters

One of the most longstanding debates in educational policy pits the goal of equality against the goal of adequacy: Should we aim to guarantee that all children receive an equal education? Or simply that they all receive an adequate education? The debate is vexing in part because there are many ways to specify “equality” and “adequacy.” Are we talking about equality of inputs (which inputs?), equality of opportunity (to achieve what?), or equality of results (which results?)? Douglas Rae and his colleagues famously argued that there are no fewer than 108 structurally distinct conceptions of equality. And how do we ...


Prisoners With Disabilities, Margo Schlanger Nov 2017

Prisoners With Disabilities, Margo Schlanger

Book Chapters

A majority of American prisoners have at least one disability. So how jails and prisons deal with those prisoners’ needs is central to institutional safety and humaneness, and to reentry success or failure. In this chapter, I explain what current law requires of prison and jail officials, focusing on statutory and constitutional law mandating non-discrimination, accommodation, integration, and treatment. Jails and prisons have been very slow to learn the most general lesson of these strictures, which is that officials must individualize their assessment of and response to prisoners with disabilities. In addition, I look past current law to additional policies ...


Disability Rights And Labor: Is This Conflict Really Necessary?, Samuel R. Bagenstos Jun 2017

Disability Rights And Labor: Is This Conflict Really Necessary?, Samuel R. Bagenstos

Articles

In this Essay, I hope to do two things: First, I try to put the current labor-disability controversy into that broader context. Second, and perhaps more important, I take a position on how disability rights advocates should approach both the current controversy and labor-disability tensions more broadly. As to the narrow dispute over wage-and-hour protections for personal-assistance workers, I argue both that those workers have a compelling normative claim to full FLSA protection—a claim that disability rights advocates should recognize—and that supporting the claim of those workers is pragmatically in the best interests of the disability rights movement ...


From Integrationism To Equal Protection: Tenbroek And The Next 25 Years Of Disability Rights, Samuel R. Bagenstos Sep 2016

From Integrationism To Equal Protection: Tenbroek And The Next 25 Years Of Disability Rights, Samuel R. Bagenstos

Articles

If there is one person who we can say is most responsible for the legal theory of the disability rights movement, that person is Jacobus tenBroek. Professor tenBroek was an influential scholar of disability law, whose writings in the 1960s laid the groundwork for the disability rights laws we have today. He was also an influential disability rights activist. He was one of the founders and the president for more than two decades of the National Federation of the Blind, one of the first-and for many years undisputedly the most effective-of the organizations made up of people with disabilities that ...


The Ada And The Supreme Court: A Mixed Record, Samuel R. Bagenstos Jan 2015

The Ada And The Supreme Court: A Mixed Record, Samuel R. Bagenstos

Articles

According to conventional wisdom, the Supreme Court has resisted the Americans with Disabilities Act (ADA) at every turn. The Court, the story goes, has read the statute extremely narrowly and, as a result, stripped away key protections that Congress intended to provide. Its departure from congressional intent, indeed, was so extreme that Congress passed a statute that overturned several key decisions and codified broad statutory protections. That statute, the ADA Amendments Act of 2008 (ADAAA). passed with widespread bipartisan support, and President George W. Bush signed it into law. The conventional wisdom leaves out a major part of the story ...


Designing A Flexible World For The Many: "Essential Functions" And Title I Of The Americans With Disabilities Act, Michael J. Powers Jan 2014

Designing A Flexible World For The Many: "Essential Functions" And Title I Of The Americans With Disabilities Act, Michael J. Powers

University of Michigan Journal of Law Reform

This Note explores how courts interpret the meaning of “essential functions” under Title I of the Americans with Disabilities Act. To be protected under the ADA, a plaintiff must be able to perform the “essential functions” of her job with or without a reasonable accommodation. In general, courts follow one of two approaches when interpreting this phrase. The first approach narrowly focuses on the employer’s judgment regarding which functions are essential. The second approach considers the employer’s judgment, but looks beyond to consider the broader employment relationship. This Note argues that these different approaches have led to varying ...


School Districts And Families Under The Idea: Collaborative In Theory, Adversarial In Fact, Debra Chopp Jan 2012

School Districts And Families Under The Idea: Collaborative In Theory, Adversarial In Fact, Debra Chopp

Articles

To read the Individuals with Disabilities Education Act (IDEA) is to be impressed with the ambition and promise of special education. The statute guarantees disabled students a "free appropriate public education" (FAPE) in the "least restrictive environment." At the core of this guarantee lies an entitlement for the parents of a disabled child to collaborate with teachers and school administrators to craft an educational program that is both tailored to the child's unique needs and designed to help her make progress in her education. This entitlement, and the IDEA generally, represents an enormous advance for children with disabilities--a community ...


Whither The Disability Rights Movement?, Robert W. Pratt Apr 2011

Whither The Disability Rights Movement?, Robert W. Pratt

Michigan Law Review

While reading this book in 2010, almost twenty years to the date after President George H.W. Bush signed the Americans with Disability Act ("ADA"), one realizes how much the world of politics has changed. It is difficult to remember a time when such major legislation passed the U.S. Senate by a vote of 91 to 6 and the House of Representatives by 377 to 28. Even more surprising, as we look back to 1990, is the fact that the executive branch was controlled by a different political party than the legislative branch. Contrast this legislative record with the ...


Systemic Compliance Complaints: Making Idea's Enforcement Provisions A Reality, Monica Costello Dec 2008

Systemic Compliance Complaints: Making Idea's Enforcement Provisions A Reality, Monica Costello

University of Michigan Journal of Law Reform

Since the passage of what is now known as the Individuals with Disabilities Education Act ("IDEA") in 1975, this country has recognized the importance of providing appropriate educational services to students with disabilities. When a school district fails to provide these services, an organization can file a compliance complaint with the state's designated education agency to investigate the violation. This Note uses California as a case study and argues that state education agencies should be required to investigate systemic violations, even when the names of affected students are not provided. To effectively protect the rights of students with disabilities ...


For Whom The School Bell Tolls But Not The Statute Of Limitations: Minors And The Individuals With Disabilities Education Act, Lynn M. Daggett, Perry A. Zirkel, Leeann L. Gurysh Jul 2005

For Whom The School Bell Tolls But Not The Statute Of Limitations: Minors And The Individuals With Disabilities Education Act, Lynn M. Daggett, Perry A. Zirkel, Leeann L. Gurysh

University of Michigan Journal of Law Reform

This Article explores whether claims under the federal special education statute should be tolled on account of minority. Adult disabled students typically assert this type of tolling claim when alleging statutory violations dating back ten or more years, when they were minors. However this tolling claim is decided, there may be undesired results. First, even if the student has a very strong case, the merits are never reached if the court dismisses the hearing request as untimely. Second, if the hearing request is timely and the case proceeds to the merits, the student must remain in her current educational placement ...


Three Steps And You're Out: The Misuse Of The Sequential Evaluation Process In Child Ssi Disability Determinations, Frank S. Bloch Oct 2003

Three Steps And You're Out: The Misuse Of The Sequential Evaluation Process In Child Ssi Disability Determinations, Frank S. Bloch

University of Michigan Journal of Law Reform

The federal Supplemental Security Income (SSI) program provides cash benefits to financially needy persons who are 65 years of age or older, blind, or disabled. It also provides cash benefits to children with disabilities under the age of 18. This Article examines three sets of regulatory efforts to implement special disability standards for children, based first on the original SSI legislation, then on a seminal Supreme Court decision, and finally on amendments to the Social Security Act overruling the Court's decision, and shows how the "sequential evaluation process," which has been useful for adjudicating adult disability claims, has been ...


Crazy (Mental Illness Under The Ada), Jane Byeff Korn Apr 2003

Crazy (Mental Illness Under The Ada), Jane Byeff Korn

University of Michigan Journal of Law Reform

This Article examines how people with mental disabilities and mental illnesses have been treated under the Americans with Disabilities Act. Part I addresses the history of mental illness. It argues that while beliefs about the causes and content of mental illness have vacillated over time, the mentally ill have received consistently poor treatment throughout human history. Part II addresses present problems with the definition of mental illness, including how mental illness and mental disability are defined under the Americans with Disabilities Act.

Part III discusses the problems faced by people with mental illness today. The author argues the current state ...


Disability, Equal Protection, And The Supreme Court: Standing At The Crossroads Of Progressive And Retrogressive Logic In Constitutional Classification, Anita Silvers, Michael Ashley Stein Dec 2001

Disability, Equal Protection, And The Supreme Court: Standing At The Crossroads Of Progressive And Retrogressive Logic In Constitutional Classification, Anita Silvers, Michael Ashley Stein

University of Michigan Journal of Law Reform

This Article compares current disability jurisprudence with the development of sex equality jurisprudence in the area of discrimination. It demonstrates that current disability law resembles the abandoned, sexist framework for determining sex equality and argues that disability equality cases should receive similar analysis as the more progressive, current sex equality standard. As such, the Article attempts to synthesize case law (14th Amendment Equal Protection jurisprudence) and statutory law (Title VII and the ADA) into a comprehensive overview of the state of current disability law viewed within the context of discrimination law in general.


"What's Good Is Bad, What's Bad Is Good, You'll Find Out When You Reach The Top, You're On The Bottom": Are The Americans With Disabilities Act (And Olmstead V. L. C.) Anything More Than "Idiot Wind?", Michael L. Perlin Dec 2001

"What's Good Is Bad, What's Bad Is Good, You'll Find Out When You Reach The Top, You're On The Bottom": Are The Americans With Disabilities Act (And Olmstead V. L. C.) Anything More Than "Idiot Wind?", Michael L. Perlin

University of Michigan Journal of Law Reform

Mental disability law is contaminated by "sanism, " an irrational prejudice similar to such other irrational prejudices as racism and sexism. The passage of the Americans with Disabilities Act (ADA)-a statute that focused specifically on questions of stereotyping and stigma-appeared at first to offer an opportunity to deal frontally with sanist attitudes and, optimally, to restructure the way that citizens with mental disabilities were dealt with by the remainder of society. However, in its first decade, the ADA did not prove to be a panacea for such persons. The Supreme Court's 1999 decision in Olmstead v. L.C. - ruling ...


Reforming Disability Nondiscrimination Laws: A Comparative Perspective, Stanley S. Herr Dec 2001

Reforming Disability Nondiscrimination Laws: A Comparative Perspective, Stanley S. Herr

University of Michigan Journal of Law Reform

Comparing the law and policies of other countries concerning disability rights to ours can help us understand how we may strengthen those rights and heighten compliance with nondiscrimination laws. Since it took effect in 1992, the Americans with Disabilities Act (ADA) has been a leading example of such comprehensive legislation on behalf of people with disabilities. Along with the United Nations Standard Rules on Equalization of Opportunities for Persons with Disabilities, the ADA has inspired many countries to develop their own disability nondiscrimination laws and remedial agencies. This process must work in both directions, however, and laws and agencies from ...


Preface, Journal Of Law Reform Dec 2001

Preface, Journal Of Law Reform

University of Michigan Journal of Law Reform

A preface to a University of Michigan Journal of Law Reform symposium entitled The Americans With Disabilities Act: Directions for Reform.


The Imperial Sovereign: Sovereign Immunity & The Ada, Judith Olans Brown, Wendy E. Parmet Dec 2001

The Imperial Sovereign: Sovereign Immunity & The Ada, Judith Olans Brown, Wendy E. Parmet

University of Michigan Journal of Law Reform

Professors Brown and Parmet examine the impact of the Supreme Court's resurrection of state sovereign immunity on the rights of individuals protected by the Americans with Disabilities Act in light of the recent decision, Board of Trustees of the University of Alabama v. Garrett. Placing Garrett within the context of the Rehnquist Court's evolving reallocation of state and federal authority, they argue that the Court has relied upon a mythic and dangerous notion of sovereignty that is foreign to the Framers' understanding. Brown and Parmet go on to show that, by determining that federalism compels constraining congressional power ...


Constitutional Doctrine As Paring Tool: The Struggle For "Relevant" Evidence In University Of Alabama V. Garrett, Pamela Brandwein Dec 2001

Constitutional Doctrine As Paring Tool: The Struggle For "Relevant" Evidence In University Of Alabama V. Garrett, Pamela Brandwein

University of Michigan Journal of Law Reform

This Article examines the difficulties involved in translating the social model of disability into the idiom of constitutional law. The immediate focus is University of Alabama v. Garrett. Both parts of this Article consider how disability rights claims collide with a discourse of legitimacy in constitutional law. Part I focuses on the arguments presented in several major Briefs filed in support of Garrett. Constitutional doctrines are conceived as paring tools and it is shown how the Court used these doctrines to easily pare down the body of evidence Garrett's lawyers sought to claim as relevant in justifying the ADA ...


The Death Of Section 504, Ruth Colker Dec 2001

The Death Of Section 504, Ruth Colker

University of Michigan Journal of Law Reform

This Article argues that the passage of the ADA had an unexpected consequence, namely the narrowing of the rights that were understood to exist under Section 504. Section 504 covered two broad areas of the law: the law of employment for individuals employed by entities receiving federal financial assistance and the law of education for students attending primary, secondary or higher education. The effect on the law of employment, which I will discuss in Part II, has been immediate and dramatic. The effect on the law of education, discussed in Part III, cannot yet be fully documented. Recent decisions, however ...


Envisioning A Future For Age And Disability Discrimination Claims, Alison Barnes Dec 2001

Envisioning A Future For Age And Disability Discrimination Claims, Alison Barnes

University of Michigan Journal of Law Reform

This Article considers the reasons for reinterpretations of age and disability and examines the fundamental reasons for changes in the implementation of both the ADA and ADEA. Part I presents the basic structure and relevant requirements of the two statutes and comments on the reasons their legislative purposes are not often seen as overlapping. Part II discusses the recent Supreme Court decisions that have undermined the purposes and implementation of both the ADA and ADEA and chilled causes of action based on the ADA and ADEA. Part III projects the current problems with anti-discrimination causes into the future, when older ...


Evaluating Purely Reproductive Disorders Under The Americans With Disabilities Act, Todd Lebowitz Dec 1997

Evaluating Purely Reproductive Disorders Under The Americans With Disabilities Act, Todd Lebowitz

Michigan Law Review

Approximately 2.8 million American couples suffer from infertility, a condition generally defined by the medical community as the failure to conceive after one year of unprotected intercourse. During the past thirty years, diagnostic and therapeutic techniques for treating infertility have improved drastically, enabling many previously infertile couples to bear children. These techniques, however, involve considerable expense and inconvenience, frequently requiring patients to take time off from work. Disputes with employers may follow, sometimes resulting in the infertile employee's termination. Some terminated employees, claiming that infertility constitutes a disability, then sue their former employers under the Americans with Disabilities ...


The Individuals With Disabilities Education Act: A Parent's Perspective And Proposal For Change, Martin A. Kotler Jan 1994

The Individuals With Disabilities Education Act: A Parent's Perspective And Proposal For Change, Martin A. Kotler

University of Michigan Journal of Law Reform

For two years, beginning in the fall of 1991, I was involved in an ongoing legal battle with the Delaware County, Pennsylvania Intermediate Unit No. 25 regarding the "appropriateness" of preschool programming for my son. To a large degree, the following Article has its origin in that battle.

Nevertheless, the point of this Article is neither to get even for wrongs, real or imagined, nor to utilize these pages to supplement the already extensive briefs and formal arguments made in that case. Rather, I believe that my position as a law professor, lawyer, litigant, and parent of a disabled child ...


Defining "Disability": The Approach To Follow, Theodore J. St. Antoine Jan 1993

Defining "Disability": The Approach To Follow, Theodore J. St. Antoine

Articles

The definition of "disability" has once again become a central issue in workers' compensation law. I am partly responsible. A decade ago I served as the Governor's Special Counselor on Workers' Compensation. In my Reportto the Cabinet Council on Jobs and Economic Development, I stated: "If I could write on a clean slate, I would prefer to see the Michigan definition brought even closer into the mainstream of American law by declaring that 'disability' means a 'limitation of an employee's wage earning capacity in work suitable to his or her qualifications and training resulting from a personal injury ...


Improving Handicappers' Civil Rights In Michigan--Preventing Discrimination Through Accommodation, Aldebaran Bouse Enloe Jan 1988

Improving Handicappers' Civil Rights In Michigan--Preventing Discrimination Through Accommodation, Aldebaran Bouse Enloe

University of Michigan Journal of Law Reform

Part I of this Note explains the development of· the current state of handicappers' civil rights law in Michigan, beginning with legislative initiatives and progressing to administrative and judicial decisions. Part II analyzes traditional antidiscrimination theory and suggests how that theory can be adapted to handicappers. By examining hypothetical situations, Part III exposes the disparity between the current state of the law in Michigan and the proposed theoretical analysis and suggests amendments to the MHCRA to reconcile this disparity.


Employment Problems Of The Handicapped: Would Title Vii Remedies Be Appropriate And Effective?, Cornelius J. Peck Jan 1983

Employment Problems Of The Handicapped: Would Title Vii Remedies Be Appropriate And Effective?, Cornelius J. Peck

University of Michigan Journal of Law Reform

This Article argues that the employment problems of the handicapped are not well-suited for treatment under a statutory discrimination model. Underlying this argument is the belief that the concept of discrimination is not adaptable to the problems of the handicapped, and efforts to apply it will only worsen existing problems. Part I begins by defining the meaning of discrimination, and then explores the similarities and differences between discrimination against the handicapped, and discrimination based on race, sex, religion, and national origin. The purpose of this discussion is to provide a basic framework for understanding claims that the handicapped should be ...


Postsecondary And Vocational Education Programs And The "Otherwise Qualified" Provision Of Section 504 Of The Rehabilitation Act Of 1973, Marc P. Charmatz, Andrew S. Penn Oct 1978

Postsecondary And Vocational Education Programs And The "Otherwise Qualified" Provision Of Section 504 Of The Rehabilitation Act Of 1973, Marc P. Charmatz, Andrew S. Penn

University of Michigan Journal of Law Reform

While the Rehabilitation Act defines a "handicapped individual,'' neither the language of section 504 nor its legislative history sheds much light on the exact meaning of the term ''otherwise qualified handicapped individual.'' This article will argue that the definition of this term must be broad enough to include severely handicapped persons, the primary group that Congress intended to benefit and protect in enacting section 504. Focussing on the area of postsecondary education, this article will argue that the interpretation developed in the Department of Health, Education and Welfare (HEW) Regulation most effectively fulfills the purposes which Congress intended in enacting ...


Legislative Notes: The Education Of All Handicapped Children Act Of 1975, Donald W. Keim Oct 1976

Legislative Notes: The Education Of All Handicapped Children Act Of 1975, Donald W. Keim

University of Michigan Journal of Law Reform

Part I reviews the landmark judicial decisions which have established the right of handicapped children to participate in free, public education. The basic provisions of the Education of All Handicapped Children Act of 1975 are then presented in Part II. The funding provisions are discussed in Part III with particular emphasis upon the tension between the promise of federal largesse and the expense of compliance with statutory and judicial requirements. Part IV reviews prior efforts to obtain judicial recognition of a substantive right to an appropriate education and suggests some ways in which the 1975 Act may alter the framework ...