Disability Law Commons^™

From Healthcare To Hiring: Impacts Of Social And Public Policy On Disabled Veterans In The United States, Benjamin Michael Stoflet

Journal of Law and Health

Part I of this paper considers the historical foundations, motivations, and evolution of veterans’ disability and employment legislation in the United States. Utilizing disability and employment as its framework, Part II then defines, describes, and critiques contemporary policies for disabled veterans in the areas of federal employment protections and uses of Alternative Dispute Resolution (ADR) within the VA’s disability decision review process. Part III discusses the roles played by disabled veterans and the federal government in policy reform, finding that both sides act as catalysts and barriers to legislative change. This paper concludes in Part IV, recommending legislation that integrates …

Accommodating Victims With Mental Disabilities, Danielle Shelton

Dickinson Law Review (2017-Present)

The #MeToo movement has brought the voices of victims of sexual assault into the public’s eye and, in turn, into the legal system. As its name suggests, the movement’s strength lies in numbers—it is, after all, hard to ignore the collective voices of a group of considerable size and visibility. This Article argues that another group of victims—namely, victims who have mental disabilities— also are desperately in need of their own movement to raise public awareness and bring about reform. However, because of their cognitive and communication impairments, this group of victims is unlikely to effectuate reform itself. Instead, these …

A Call To Abolish Determinate-Plus Sentencing In Washington, Rachel Stenberg

Washington Law Review

For certain incarcerated individuals who commit sex offenses, Washington State’s determinate-plus sentencing structure requires a showing of rehabilitation before release. This highly subjective “releasability” determination occurs after an individual has already served a standard sentence. A review of recent releasability determinations reveals sentences are often extended on arbitrary and inconsistent grounds—especially for individuals who face systemic challenges in prison due to their identity or condition. This Comment shows that the criteria to determine whether individuals are releasable is an incomplete picture of their actual experience in the carceral setting, using the distinct example of incarcerated individuals with mental illness. While …

Committed To Commitment: The Problem With Washington State’S Involuntary Treatment Act, Hannah Garland

Washington Law Review

Washington State utilizes the Involuntary Treatment Act (ITA) to civilly commit individuals experiencing behavioral health crises. Although civil commitment involves stripping away fundamental rights, it receives less attention than criminal incarceration. The ITA is meant to protect not just the general community, but also the rights of people with behavioral health disorders who utilize the ITA system. Yet, its implementation tells a different story. Individuals in King County are detained and committed repeatedly, without receiving consistent care. Furthermore, the ITA disproportionately impacts unhoused individuals and Black individuals. As the ITA continues to grow both in utilization and expense, other community-based …

Doing The Right Thing, The Right Way, The First Time: Decision-Making In Public And Private Arenas Regarding The Use Of Service Animals, Maureen E. Lally-Green, Annemarie Harr Eagle Esq., Bridget M. Green

University of Arkansas at Little Rock Law Review

No abstract provided.

Without Accommodation, Jennifer Bennett Shinall

Indiana Law Journal

Under the Americans with Disabilities Act (ADA), workers with disabilities have the legal right to reasonable workplace accommodations provided by employers. Because this legal right is unique to disabled workers, these workers could, in theory, enjoy greater access to the types of accommodations that are desirable to all workers—including the ability to work from home, to work flexible hours, and to take leave. This Article compares access to these accommodations, which have become increasingly desirable during the COVID-19 pandemic, between disabled workers and nondisabled workers. Using 2017–2018 data from the American Time Use Survey’s Leave and Job Flexibilities Module, I …

Discrimination And Disparity: Violating Olmstead V. L.C. Discriminates Against The Psychiatrically Vulnerable And Fosters Racial/Ethnic And Socioeconomic Mental Health Disparities, Mckenna S. Cloud

Mississippi College Law Review

Mississippi is one of several states still in violation of federal laws by unnecessarily institutionalizing individuals with serious mental illness and intellectual and developmental disabilities (“psychiatric vulnerabilities”) and by failing to offer sufficient community-based mental health services. This Comment uses Mississippi’s broken mental healthcare system as a case study to reveal how violating the Americans with Disabilities Act (“ADA”) and Olmstead v. L.C. ex rel Zimring, 527 U.S. 581, 597 (1999), not only discriminates against the psychiatrically vulnerable but also fosters racial/ethnic and socioeconomic mental health disparities. Complying with these federal mandates will provide individuals with psychiatric vulnerabilities with …

Atkins V. Virginia At Twenty: Still Adaptive Deficits, Still In The Developmental Period, Sheri Lynn Johnson, John H. Blume, Brendan Van Winkle

Washington and Lee Journal of Civil Rights and Social Justice

Twenty years ago, in Atkins v. Virginia, the Supreme Court of the United States held that the Eighth Amendment prohibited states from executing persons with intellectual disability. While the Court’s decision is laudable and has saved many of the most vulnerable persons from the executioner, its effect has been undermined by recalcitrant states attempting to exploit language in the opinion permitting states to create procedures to implement the (then) new categorical prohibition. In this article, we examine how some states have adopted procedures which are fundamentally inconsistent with the clinical consensus understanding of the disability and how one state, …

Falling Away Into Disease: Disability-Deviance Narratives In American Crime Control, Matt Saleh

St. John's Law Review

(Excerpt)

Who in society is predisposed to crime? Many of us are familiar with cultural narratives that trace criminal behavior to some cognitive defect in the perpetrator. For instance, we might recall the persistent media allusions to Adam Lanza’s Asperger Syndrome after the mass shooting at Sandy Hook Elementary School, despite evidence that individuals on the autism spectrum are, on average, not more likely, and are quite possibly less likely, to commit serious crime in their lifetime. Similarly, popular narratives about the relationship between “mental illness” and violence are pervasive, despite the broad meaning of the terminology and a deeply-misunderstood …

Death And Disability: The Need For A Federal Standard, Alix R. Goldstein

Nevada Law Journal

No abstract provided.

The Missing Piece Of The Puzzle: The Intersection Of Race And Special Education, Tsega Zewdneh Shiferaw

University of the District of Columbia Law Review

The privileges allotted to Americans cannot be compared to any other country’s citizens. Americans have the liberty of saying what they want, thinking what they want, and acting freely in public. Nebiyat Shiferaw (“Nebiyat”) is a thirty-year-old African American man who is unable to speak and live independently because he has autism, also known as autism spectrum disorder (“ASD”). Nebiyat does not experience the same liberties as most Americans; he has gone through special education programs and has overcome discrimination, not because of the Individuals with Disabilities Education Act (“IDEA”), but because of his parents advocating for him. As a …

More Than #Freebritney: Remedying Constitutional Violations In Guardianship For People With Disabilities, Hannah Shotwell

New Mexico Law Review

Adult guardianship is used as a method to restrict the decisionmaking rights of some individuals with intellectual or developmental disabilities who have been deemed “incompetent.” However, the use of guardianship to remove someone’s decisionmaking rights violates the equal protection rights granted by the New Mexico Constitution. Discrimination against people with developmental disabilities must be substantially related to an important governmental interest, and the current state of guardianship fails to meet that bar. Further, guardianship violates the state constitutional guarantee of due process because it infringes on the fundamental right to the least restrictive means of care. New Mexico must adopt …

Abortion Rights And Disability Equality: A New Constitutional Battleground, Allison M. Whelan, Michele Goodwin

Washington and Lee Law Review

Abortion rights and access are under siege in the United States. Even while current state-level attacks take on a newly aggressive scale and scope—emboldened by the United States Supreme Court’s June 2022 decision in Dobbs v. Jackson Women’s Health Organization to overturn Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey—the legal landscape emerging in the wake of Dobbs is decades in the making. In this Article, we analyze the pre- and post-Roe landscapes, explaining that after the Supreme Court recognized a right to abortion in Roe in 1973, anti-abortionists sought to dismantle that right, first …

Transparency And Reliance In Antidiscrimination Law, Steven L. Willborn

Catholic University Law Review

All antidiscrimination laws have two structural features – transparency and reliance – that are important, even central, to their design, but have gone largely unnoticed. On transparency, some laws, like the recent salary-ban laws, attempt to prevent the employer from learning about the disfavored factor on the theory that an employer cannot rely on an unknown factor. Other laws require publication of the disfavored factor, such as salary, on the theory that it is harder to discriminate in the sunlight. Still other laws are somewhere between these two extremes. The Americans with Disabilities Act, for example, limits but does not …

Reclaiming The Right To Consent: Judicial Bypass Mechanism As A Way For Persons With Disabilities To Lawfully Consent To Sexual Activity In Ohio, Melissa S. Obodzinski

Cleveland State Law Review

In Ohio, it is a criminal offense to engage in sexual conduct with another when his or her ability to consent is “substantially impaired” because of a mental or physical condition. There is no mechanism for persons with intellectual and/or developmental disabilities to receive judicial notice of whether their ability to consent is “substantially impaired” prior to criminal adjudication, nor is there a way for them to affirmatively prove that they have the capacity to consent to sexual activity. Thus, under Ohio law, intellectually and/or developmentally disabled individuals may be functionally and irrevocably barred from engaging in sexual intimacy for …

Upholding Disability Rights In The Americas: The Role Of The Inter-American Institutions, Ying Chen, Paul Mcdonough

Georgia Journal of International & Comparative Law

This Article studies how the adjudicative institutions created by the Inter-American Convention on Human Rights (ACHR) have worked to uphold the rights of persons with disabilities. It argues that those institutions, the Inter-American Commission on Human Rights (the Commission or IACHR) and the Inter-American Court of Human Rights (the Court or IACtHR), have begun to construct a regime of enforceable rights of persons with disabilities by applying international rules and interpretations to fill gaps in a relatively sparse Inter-American disability rights treaty framework. To buttress general principles of equality and non-discrimination with specific rights, the Commission and the Court have …

Consider Collateral Consequences: The Inherent Hypocrisy Of Veterans Treatment Courts’ Failure To Dismiss Criminal Charges, Julia W. Williams

Journal of Law and Policy

American veterans are often plagued by psychological and physical injuries, among other hardships, which, when unaddressed, can lead to substance abuse, criminal behavior, and suicide. As public awareness of the difficulties that American veterans face was growing, the problem-solving court movement was also gaining momentum. Largely inspired by therapeutic jurisprudence, an interdisciplinary framework that sees the law as a way to reach therapeutic outcomes, problem-solving courts seek to identify the root causes of criminal behavior and address those causes in ways that promote rehabilitation and reduce recidivism. Veterans Treatment Courts (“VTCs”) emerged when veterans advocacy intersected with the problem-solving court …

Slaying The Serpents: Why Alternative Intervention Is Necessary To Protect Those In Mental Health Crisis From The State-Created Danger “Snake Pit”, Kathleen Giunta

Journal of Law and Policy

The Black Lives Matter protests in 2020 and ongoing reports of police brutality around the United States sparked extensive debate over qualified immunity and the legal protections that prevent police accountability. Individuals experiencing mental health crises are especially vulnerable to police violence, since police officers lack the requisite skills and knowledge to provide effective crisis support during mental health emergencies. Although the state-created danger doctrine was created by the courts as an exception to qualified immunity, it is so rarely applied that individuals harmed or even killed by police are left without legal remedy. This Note explores qualified immunity and …

Everything Is Bigger In Texas: Including The Horrendously Inadequate Attempts At Providing Special Education And Related Services To All Children With Disabilities, Alexandria R. Booterbaugh

The Scholar: St. Mary's Law Review on Race and Social Justice

Without immediate action, the “corrections” made by the Texas legislature to meet the appropriateness requirement for special education will result in imminent peril for students with an autism spectrum disorder (ASD) as well as their parents. Tens of thousands of children fall between the cracks as a result of Texas’ illegalities and the lack of responsibility Texas’ lawmakers and Texas Education Agency (TEA) have for special education. If Texas does not fully devote itself to a significant overhaul of its special education practices, students will continue to be left behind.

Congress enacted the Individuals with Disabilities Education Act (IDEA) because …

A Covid Silver Lining? How Telework May Be A Reasonable Accommodation After All, Baylee Kalmbach

University of Cincinnati Law Review

No abstract provided.

How To Protect Special Education During Covid-19: From The Courts To The Capitol, Sarah Coleman

University of Miami Race & Social Justice Law Review

The COVID-19 pandemic has forced students around the country out of brick-and-mortar schools and into virtual classrooms. While the switch to remote learning has helped keep students and teachers safe from contracting the virus, students with disabilities have largely been deprived of a meaningful education and in person services mandated under federal law. This essay will explain how students have been denied a free appropriate public education (FAPE) under the Individuals with Disabilities Act (IDEA), how litigation has been unsuccessful in creating systemic change for these students, and how public policy by U.S. legislators can offer a solution.

Understanding Terminations For “Disability-Caused Misconduct” As Failures To Provide Reasonable Accommodation, Michael S. Verdichizzi

Notre Dame Law Review

The Note proceeds as follows. Part I provides a primer on the sorts of disability discrimination the ADA prohibits, with a special focus on the three types of claims one may bring under the act: disparate treatment, disparate impact, and failure to accommodate. Part II explores the current state of the misconduct issue in the disability discrimination context and demonstrates the circuit split by way of case analyses. Part III presents the principal argument of this Note, that uncontroversial canons of statutory interpretation demonstrate the erroneousness of the majority view, that the majority view hinders the ADA’s objective of equal …

“Categorically Unsafe” To Donate, Marielle Forrest

Utah Law Review

Plasma donation centers routinely adopt policies that preclude individuals with mental illnesses from donating blood plasma. While plasma donation centers assert that their policies are motivated by employee and customer safety, such safety concerns are unsubstantiated. These policies are based on speculation and stereotypes, rather than scientific evidence. But discrimination against people with mental illness is only unlawful if perpetrated by an entity subject to the Americans with Disabilities Act (“ADA”), and circuit courts are split on whether blood plasma donation centers fall within the ADA’s parameters. In 2016, the Tenth Circuit held that blood plasma donation centers are “service …

Collaboration Between Secondary Special Education Teachers And Community Rehabilitation Service Providers: A Focus Group Analysis, Tabitha L. Pacheco, Robert L. Morgan, Michelle C. Mcknight-Lizotte

Developmental Disabilities Network Journal

Collaboration by professionals across agencies has been identified as a research-based practice associated with successful post-school outcomes for students with disabilities. Succesful post-school outcomes include community employment, postsecondary education (such as involvement in two- or four-year college programs), and independent living for young adults with disabilities. Vocational rehabilitation counselors, special educators, and community rehabilitation providers (CRPs) must collaborate to increase the probability of successful outcomes, particularly given the advent of Pre-Employment Transition Services (Pre-ETS). Five core areas of Pre-ETS include: (a) job exploration counseling, (b) work-based learning experiences, (c) counseling, (d) workplace readiness training to develop social skills and independent …

Experiential Learning Through Participatory Action Research In An Interdisciplinary Leadership Training Program, Jessica L. Franks, Stephanie D. Baumann, Marvin So, Angela M. Miles, Jorge M. Verlenden, Teal Benevides, Mark Crenshaw, Stephen Truscott, Daniel Crimmins

Developmental Disabilities Network Journal

Background: Experience in multidisciplinary collaboration among healthcare providers, leaders in public health, and educators is essential to effectively address the diverse needs of children with intellectual and developmental disabilities (I/DD) and their families.

Purpose: We describe three participatory action research (PAR) projects from an interdisciplinary training program, which used experiential learning to enhance leadership competencies and promote inclusive services. Trainees report their leadership growth as providers and advocates for children with I/DD using experiential learning through PAR.

Approach: Trainees discuss their engagement with organizations serving children with I/DD and ways that experiential learning supported leadership skill development, …

Equitable Vaccine Access Within An Age-Based Framework, Alan B. Cobo-Lewis

Developmental Disabilities Network Journal

Objectives: When vaccine supply was limited, several states adopted age-based prioritization for Covid-19 vaccine eligibility because it is simple (especially when age is quantized by decade) and age is strongly associated with Covid-19 mortality. But this approach raises equity concerns based in law and ethics. I propose data-driven solutions for equitable policy within an age-based framework. Methods: Using CDC and Census Bureau data, I analyzed 538,627 U.S. Covid-19 deaths by age and race-ethnicity through February 2021 and compared the risk ratios to published data on risk ratios for other conditions. Results: Covid-19 mortality rose 2.56-fold per decade of life. Down …

Confidentiality, Warning And Aids: A Proposal To Protect Patients, Third Parties And Physicians

Touro Law Review

No abstract provided.

Medical Necessity Of Residential Treatment For Anorexia: Can Parity Be Achieved?, Abbey Derechin

Northwestern Journal of Law & Social Policy

This Note examines the statutory landscape of mental health parity in the United States. The lens of this Note is through the mental illness of anorexia. Parity laws mandate analogous limitations between mental and physical illness. Therefore, because anorexia has many physical manifestations, it serves as a nice juxtaposition to physical illnesses. This Note will argue for broad interpretation of the Mental Health Parity and Addiction Equity Act (MHPAEA) through comparative analysis of counterpart statute, the California Mental Health Parity Act (CMHPA). It will explore how courts have interpreted the CMHPA broadly to suggest that the MHPAEA should be interpreted …

The Right Of Access To Sport And Recreation For Disabled Persons Under International Law: What Does It Really Entail?, Ilias Bantekas

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Beware Of Educational Blackmail: How Can We Apply Lessons From Environmental Justice To Urban Charter School Growth?, Preston C. Green Ii, Chelsea E. Connery

South Carolina Law Review

No abstract provided.