Disability Law Commons^™

An Eye Toward Effective Enforcement: A Technical-Comparative Approach To The Drafting Negotiations, Tara J. Melish

Tara Melish

Published as Chapter 5 in Human Rights and Disability Advocacy, Maya Sabatello & Marianne Schulze, eds.

The unprecedented level of civil society participation that took place in the drafting of the U.N. Convention on the Rights of Persons with Disabilities (CRPD) constitutes a major key to its success -- laying a solid foundation for the much longer and harder process of implementation ahead. This piece addresses how one civil society organization -- Disability Rights International (DRI) -- approached the negotiation process. Part I explains the strategic approach DRI adopted, highlighting its methodology, the guiding principles it embraced, and the resulting …

Gendering Disability To Enable Disability Rights Law, Michelle Travis

Michelle A. Travis

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

Dara Purvis

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 …

The Importance Of Work Or Productive Activity In Life Care Planning And Case Management, Christine Reid, Susan Riddick-Grisham

Christine A. Reid

INTRODUCTION: The importance of work or productive activity for the well-being, community integration, and quality of life of people living with disabilities is addressed, with implications for life care planning and case management. BACKGROUND: The role of work or productive activity in our society, and consequences of deprivation if rehabilitation services do not address vocational effects of disabilities, is explored. A continuum of productivity options is introduced; types of vocational rehabilitation assessment processes and interventions are described. PURPOSE: The role of vocational rehabilitation services in life care planning and case management is discussed, focusing on quality of life for people …

Every Day Counts: Proposals To Reform The Idea's Due Process Structure, Elizabeth Shaver

Elizabeth Shaver

It is a core principle of special education legislation that the parents of children with disabilities can challenge the child’s educational programming through an administrative due process hearing. Yet, for years the special education due process structure has been criticized as inefficient, anti-collaborative, and prohibitively expensive. Those criticisms have given rise to widely varying proposals to reform special education due process, proposals that range from adding certain alternative dispute resolution mechanisms to a wholesale replacement of the due process structure.

This article provides a comprehensive analysis of special education dispute resolution. The article first examines the lively debate among scholars …

Disability Pensions, Property Rights And Legitimate Expectations: Béláné Nagy V. Hungary, Mel Cousins

Mel Cousins

Painful Disparities, Painful Realities, Amanda C. Pustilnik

Amanda C Pustilnik

Legal doctrines and decisional norms treat chronic claims pain differently than other kinds of disability or damages claims because of bias and confusion about whether chronic pain is real. This is law’s painful disparity. Now, breakthrough neuroimaging can make pain visible, shedding light on these mysterious ills. Neuroimaging shows these conditions are, as sufferers have known all along, painfully real. This Article is about where law ought to change because of innovations in structural and functional imaging of the brain in pain. It describes cutting-edge scientific developments and the impact they should make on evidence law and disability law, and, …

Toward A Less Adversarial Relationship Between Chevron And Gardner, James Ridgway

James D. Ridgway

In twenty-five years of judicial review of veterans benefits claims, the courts have failed to reconcile the interpretive canons of veteran friendliness and deference to the agency’s policy making role. This article argues that the courts must develop a coherent relationship between these doctrines by recognizing that each are core values of veterans law. First, it explores the history and nature of these two doctrines that are central to veterans law. Then, It considers how the canons are situated in the spectrum of fact- and value-based judicial review. Ultimately, separation-of-powers principles and the legislative history of the Veterans Judicial Review …

In Defense Of Idea Due Process, Mark C. Weber

Mark C. Weber

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and …

Idea Class Actions After Wal-Mart V. Dukes, Mark C. Weber

Mark C. Weber

Wal-Mart v. Dukes overturned the certification of a class of a million and a half female employees alleging sex discrimination in Wal-Mart’s salary and promotion decisions. The Supreme Court ruled that the case did not satisfy the requirement that a class have a common question of law or fact, and said that the remedy sought was not the type of relief available under the portion of the class action rule permitting mandatory class actions. Over the last two years, courts have struggled with how to apply the ruling, especially how to apply it beyond its immediate context of employment discrimination …

Should States Ban The Use Of Non-Positive Interventions In Special Education? Re-Examining Positive Behavior Supports Under The Idea, Elizabeth Shaver

Elizabeth Shaver

In the 1980s and 1990s, behavior analysts vigorously debated ethical concerns about the use of certain behavioral interventions to address severe behavior of disabled children. In 1997, while that debate was still ongoing, the Individuals with Disabilities Education Act (IDEA) was amended to require educators to consider the use of “positive behavioral interventions and supports,” among other strategies, to address problem behavior that impedes a disabled child’s learning. Since 1997, the “positive behavioral interventions and supports” framework has shifted focus, but IDEA’s language essentially has stayed the same. In addition, some states have enacted poorly-worded statutes or regulations in order …

Home Sweet Home???: Fixing Group Homes For Human Beings Who Have Special Needs, Erik N. Weber

Erik N Weber

When I was five years old, doctors who evaluated me for my autism told my parents to put me in an institution for the rest of my life. The doctors saw no hope; they just saw me as something to be warehoused. My parents did put me in an institution, which was college. My lifelong pursuit to help others with special needs to be treated with dignity began when I went with a Christmas Carol choir to sing Carols at a state hospital (“institution”). I saw patients strapped to chairs; they were lethargic, drooling, and no staff were in the …

Surrogacy Leave And Eu Law: Case C 167/12, C.D. V S.T. And Case C 363/12, Z. V A Government Department, Judgements (Grand Chamber) Of 18 March 2014, Mel Cousins

Mel Cousins

Advances in reproductive technology have tended to outpace the capacity of legislators to respond to these changes, leading to difficult legal questions for the courts. Surrogacy is one particular area where advances in technology have led to many legal challenges and have highlighted the failure (in several jurisdictions) to enact appropriate legislation in response to technological developments and/or differing views about what is ‘appropriate’. Two recent cases before the European Court of Justice (CJEU) have raised the issues as to whether either EU secondary legislation (in particular the Pregnant Workers Directive 92/85/EEC and/or the Equal Treatment Directives 2006/54/EC and 2000/78/EC) …

Mobility Allowance And The Law, Mel Cousins

Mel Cousins

The Irish government has recently announced the abolition of the mobility allowance and motorised transport grant. It appears that this decision was heavily influenced by the Government’s view that ‘the schemes are illegal in the context of the Equal Status Acts’. Although the reform options considered and legal advice received have not been specified, the impression has been created that reform would be very complex and that it would be impossible to reform the existing scheme to make it legally compliant without a major increase in its budget. This note discuses the legal issues concerning the operation of the mobility …

"All Areas Of Suspected Disability", Mark C. Weber

Mark C. Weber

The Individuals with Disabilities Education Act (IDEA) requires school districts to assess children “in all areas of suspected disability.” It further provides that each child’s individualized education program (IEP) must contain measurable annual goals designed to “meet each of the child’s . . . educational needs that result from the child’s disability,” and a statement of special education and related services that will be provided for the child “to advance appropriately toward attaining annual goals.” Courts have strictly enforced these requirements in the last several years, remedying violations of IDEA when school districts fail to assess in all areas of …

The Part And Parcel Of Impairment Discrimination, Michelle Travis

Michelle A. Travis

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) has been heralded for restoring the protected class of individuals with disabilities to the broad scope that Congress intended when it enacted the original Americans with Disabilities Act over two decades ago. But the ADAAA accomplished something even more profound. By restricting the accommodation mandate only to individuals whose impairments are or have been substantially limiting, and by expanding basic antidiscrimination protection to cover individuals with nearly all forms of physical or mental impairment, the ADAAA extricated disability from the broader concept of impairment and implicitly bestowed upon impairment the …

Interest-Convergence And The Disability Paradox: An Account Of The Racial Disparities In Disability Determinations Under The Ssa And Idea, Jana R. Dicosmo, Robert L. Hayman, Jordan G. Mickman

Robert L. Hayman

No abstract provided.

The Rights Of Disabled Students, Derek W. Black, Robert A. Garda Jr., John E. Taylor, Emily Gold Waldman

Robert A. Garda

Education Law: Equality, Fairness, and Reform situates case law in the broader education world by including edited versions of federal policy guidance, seminal law review articles, social science studies, and policy reports. It offers comprehensive coverage of education law while also focusing specifically on equality and civil rights issues. It includes individual chapters on each major area of inequality: race, poverty, gender, disability, homelessness, and language status. Those chapters are followed by a structured approach to the complex first amendment questions, dividing the first amendment into three different chapters and addressing, in order, freedom of expression and thought, religion in …

Impairment As Protected Status: A New Universality For Disability Rights, Michelle Travis

Michelle A. Travis

This Article analyzes the fundamental change to federal civil rights law that Congress accomplished through the ADA Amendments Act of 2008 (the "ADAAA"). Congress enacted the ADAAA in response to a series of United States Supreme Court opinions that had narrowly interpreted the definition of disability in the Americans with Disabilities Act of 1990. Although many commentators have recognized the ADAAA's intent to restore the class of individuals with disabilities to the breadth that Congress originally intended, this Article argues that the ADAAA accomplished something more significant: it extricated disability from the broader concept of impairment. As a result, the …

Canines In The Classroom: Service Animals In Primary And Secondary Educational Institutions, Rebecca J. Huss

Rebecca J. Huss

This Article focuses on the issue of whether a child with a disability has the legal right to attend a primary or secondary school with a service animal. It begins by setting forth basic information regarding the children who are currently receiving special education services and discussing the increasing number of animals placed into service with individuals under the age of eighteen, focusing on the recent trend of utilizing service animals to assist children with an autism spectrum disorder. Studies relating to the common argument against allowing service animals in schools – the impact of service animals on others with …

Reasonable Accommodation Under The Ada, Barbara A. Lee, Sheila D. Duston, Susanne M. Bruyere, Elizabeth Reiter

Susanne Bruyère

This brochure is one of a series on human resources practices and workplace accommodations for persons with disabilities edited by Susanne M. Bruyère, Ph.D., CRC, SPHR, Director, Program on Employment and Disability, School of Industrial and Labor Relations – Extension Division, Cornell University. Cornell University was funded in the early 1990’s by the U.S. Department of Education National Institute on Disability and Rehabilitation Research as a National Materials Development Project on the employment provisions (Title I) of the ADA (Grant #H133D10155). These updates, and the development of new brochures, have been funded by Cornell’s Program on Employment and Disability, the …

Survey Of The Federal Government On Supervisor Practices In Employment Of People With Disabilities, Susanne M. Bruyere, William Erickson, Richard L. Horne

Susanne Bruyère

In 1999, the Presidential Task Force on the Employment of Adults with Disabilities (PTFEAD) funded Cornell University to conduct a survey of federal sector HR and EEO representatives regarding their experience implementing the employment disability nondiscrimination requirements of the Americans with Disabilities Act of 1990(ADA) and the Rehabilitation Act of 1973, as amended. One of the recommendations from this research was to conduct a follow-up study of federal agency supervisors and managers about their experience in accommodation and employment of persons with disabilities in the federal sector, and in addition to inquire about their awareness of the series of Executive …

Working Effectively With People With Attention Deficit/ Hyperactivity Disorder, Eve W. Tominey, Matthew Tominey, Susanne M. Bruyere

Susanne Bruyère

This brochure on People with Attention Deficit/Hyperactivity Disorder and the Americans with Disabilities Act (ADA) is one of a series on human resources practices and workplace accommodations for persons with disabilities edited by Susanne M. Bruyère, Ph.D., CRC, SPHR, Director, Program on Employment and Disability, School of Industrial and Labor Relations – Extension Division, Cornell University. Cornell University was funded in the early 1990’s by the U.S. Department of Education National Institute on Disability and Rehabilitation Research as a National Materials Development Project on the employment provisions (Title I) of the ADA (Grant #H133D10155). These updates, and the development of …

Reasonable Accommodation Under The Ada, Barbara A. Lee, Sheila D. Duston, Susanne M. Bruyere, Elizabeth Reiter

Susanne Bruyère

This brochure is one of a series on human resources practices and workplace accommodations for persons with disabilities edited by Susanne M. Bruyère, Ph.D., CRC, SPHR, Director, Program on Employment and Disability, School of Industrial and Labor Relations – Extension Division, Cornell University. Cornell University was funded in the early 1990’s by the U.S. Department of Education National Institute on Disability and Rehabilitation Research as a National Materials Development Project on the employment provisions (Title I) of the ADA (Grant #H133D10155). These updates, and the development of new brochures, have been funded by Cornell’s Program on Employment and Disability, the …

The Intersection Of Sports And Disability: Analyzing Reasonable Accommodations For Athletes With Disabilities, Maureen A. Weston Prof.

Maureen A Weston

When thinking about athletes participating in competitive or organized sports, typically the public rarely contemplates the inclusion of players with medical impairments or other physical, mental, and learning disabilities. Yet many athletes with disabilities, whether visible or hidden, have achieved success in both amateur and professional sports. The rights of athletes with medical impairments or disabilities to participate in competitive sports are also increasingly controversial. Because of a medical impairment or disability, some athletes cannot satisfy certain eligibility requirements set by the governing sporting organizations or they need accommodation in order to participate. Athletes who have been effectively excluded from …