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

Law Commons

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

Articles 1 - 28 of 28

Full-Text Articles in Law

The Learning Disability Mess, Ruth Colker Nov 2010

The Learning Disability Mess, Ruth Colker

Ruth Colker

This essay explores the problems that have plagued society since 1975 when Congress first tried to define what is a “learning disability.” The statement that “No one really knows what a learning disability is” rings as true today as in 1975. Rather than solve this problem with an improved classification scheme, Professor Colker recommends that schools, testing entities and the federal government should place less weight on which students are classified as “learning disabled.” Plodders University should become the norm, where students are admitted based, in part, on their scores on exams taken under extended time conditions.


Social Security, Modes Of Communication For Blind And Visually Impaired Persons And The Rehabilitation Act – American Council Of The Blind V Astrue, Mel Cousins Sep 2010

Social Security, Modes Of Communication For Blind And Visually Impaired Persons And The Rehabilitation Act – American Council Of The Blind V Astrue, Mel Cousins

Mel Cousins

This note examines a recent District Court decision in which the plaintiffs successfully challenged the adequacy of modes of communication by the Social Security Administration in its notices and other correspondence to blind and visually impaired persons. The case shows the potential of the Rehabilitation Act to improve services to persons with disabilities.


The Underwhelming Impact Of The Americans With Disabilities Act Amendments, Stacy A. Hickox Aug 2010

The Underwhelming Impact Of The Americans With Disabilities Act Amendments, Stacy A. Hickox

Stacy A. Hickox

The 2008 amendments to the Americans with Disabilities Act (ADA) were intended to expand the protection against discrimination for persons with disabilities beyond the Supreme Court’s narrow interpretation of who is “disabled.” While the amendments and the proposed Equal Employment Opportunity Commission regulations address some of the Court’s narrow interpretations of the ADA, lower courts may still be able to limit coverage of persons with disabilities who are still able to perform tasks which utilize the major life activity which is limited by their impairment, and persons who have impairments with temporary or intermittent effects. Claimants may also be excluded …


Trojan Horse Bill Hurts Veterans It Purports To Help, Thomas Reed Jul 2010

Trojan Horse Bill Hurts Veterans It Purports To Help, Thomas Reed

Thomas J Reed

No abstract provided.


Service Delivery Core Review: A Reappraisal, H. Allan Hunt May 2010

Service Delivery Core Review: A Reappraisal, H. Allan Hunt

Reports

No abstract provided.


Vol. 1 No. 2, Spring 2010; Iraq Veterans' War With The U.S. Department Of Veterans Affairs: Post Traumatic Stress Disorder Claims Under A Procedural Due Process Analysis, Purvi Shah May 2010

Vol. 1 No. 2, Spring 2010; Iraq Veterans' War With The U.S. Department Of Veterans Affairs: Post Traumatic Stress Disorder Claims Under A Procedural Due Process Analysis, Purvi Shah

Northern Illinois Law Review Supplement

This Comment explores the Department of Veterans Affairs and its current disability compensation and medical care systems for soldiers who have returned from the War on Terror with mental health disabilities, such as post traumatic stress disorder. More specifically, this Comment analyzes two assertions made by veterans groups — Veterans United for Truth and Veterans for Common Sense — against the VA: (1) there is a lack of neutral decision-makers for veterans who would like to appeal their compensation amount , and (2) there is a lack of an additional procedure allowing a veteran with a mental health emergency to …


Adhd And The New Americans With Disabilities Act: Expanded Legal Recognition For Cognitive Disorders, John P. Heekin Apr 2010

Adhd And The New Americans With Disabilities Act: Expanded Legal Recognition For Cognitive Disorders, John P. Heekin

John P. Heekin

The author assesses the likely impact of the recent amendments to the Americans with Disabilities Act of 1990, broadening the definition of a “disability,” upon the legal treatment of discrimination claims from individuals with cognitive disorders, such as Attention-Deficit Hyperactivity Disorder (ADHD). The paper begins with a review of the symptoms, diagnosis and treatments of ADHD, noting that remedies for the disorder fail to fully “normalize” its effects, leaving individuals impaired in relation to their peers. The author then presents the original ADA and its administrative interpretation issued in the Equal Employment Opportunity Commission’s Compliance Manual. From there, the paper …


Majority Rule Not A Clearly Stated Component Of United States Constitution Or Supreme Court Decisions-Supreme Court And Judicial Rulings Could Even Be Seen As Advisory Not Binding Based On The Us Constitution, James T. Struck Jan 2010

Majority Rule Not A Clearly Stated Component Of United States Constitution Or Supreme Court Decisions-Supreme Court And Judicial Rulings Could Even Be Seen As Advisory Not Binding Based On The Us Constitution, James T. Struck

James T Struck

Majority rule may play a role in the election of a president, but the Constitution does not apply such rule to the Supreme Court or other courts in a stated or clear way. Supreme Court decisions may be seen as advisory based on the lack of mention of judicial roles in the US Constitution, but contempt concepts indicate that judicial decisions are supposed to be seen as binding. Many judicial decisions can be seen as advisory, although clearly tradition has seen judicial rulings as binding and enforceable rather than advisory. From the perspective of the US Constitution, we could see …


How The Biological/Social Divide Limits Disability And Equality, Martha T. Mccluskey Jan 2010

How The Biological/Social Divide Limits Disability And Equality, Martha T. Mccluskey

Journal Articles

What is disability - a biological or social condition? In the conventional equality frameworks, the division between biology and social identity puts disability at the bottom of the formal equality hierarchy, but at the top of the substantive equality hierarchy. Compared with race and then gender, disability deserves the least protection against formal discrimination, on the theory that disadvantages are based on real and relevant functional differences more than on suspect social judgments. But turning to substantive equality, disability’s supposed greater biological basis justifies affirmative accommodation of difference, compared to the social differences of race, with gender in the middle …


“They Keep It All Hid”: The Ghettoization Of Mental Disability Law And Its Implications For Legal Education, Michael L. Perlin Jan 2010

“They Keep It All Hid”: The Ghettoization Of Mental Disability Law And Its Implications For Legal Education, Michael L. Perlin

Saint Louis University Law Journal

No abstract provided.


A New Look At Section 504 And The Ada In Special Education Cases, Mark Weber Jan 2010

A New Look At Section 504 And The Ada In Special Education Cases, Mark Weber

College of Law Faculty

School districts are finding fewer children eligible for services under the Individuals with Disabilities Education Act (IDEA). At the same time Congress has expanded the number of children who are protected by section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA). These developments present the largely unexplored question of what obligations school districts owe children who have disabilities and are protected under section 504 and the ADA, but who are not eligible for services under IDEA. This article concludes that these children must be provided an education that meets their needs as adequately …


Settling Idea Cases: Making Up Is Hard To Do, Mark Weber Jan 2010

Settling Idea Cases: Making Up Is Hard To Do, Mark Weber

College of Law Faculty

Like most other legal disputes, most cases brought under the Individuals with Disabilities Education Act (IDEA) settle. But although IDEA, the federal law governing special education, was enacted a generation ago, litigants still lack guidance how the mechanisms of settlement should work, what the settlement agreement should look like, and what to do if one side of the dispute fails to live up to its agreement. Settling an IDEA case entails unique issues—and unique pitfalls—that make the topic even more challenging than the settlement of other cases. IDEA has a mediation provision with extensive requirements and a one-of-a-kind prehearing settlement …


Special Education From The (Damp) Ground Up: Children With Disabilities In A Charter School-Dependent Educational System, Mark Weber Jan 2010

Special Education From The (Damp) Ground Up: Children With Disabilities In A Charter School-Dependent Educational System, Mark Weber

College of Law Faculty

Hurricane Katrina created the need and the opportunity to reconstitute the New Orleans public school system. Educational reformers took advantage of the destruction of existing institutions to build a new system based on educational choice and dependent on charter schools to provide the choices. The disaster also created the need and opportunity to rebuild the system of special education in the city, but education for children with disabilities appears to have been an afterthought. Reports have surfaced of children being steered away from charter schools or inadequately served there. This paper asks what principles should guide reformers in establishing education …


Unreasonable Accommodation And Due Hardship, Mark Weber Jan 2010

Unreasonable Accommodation And Due Hardship, Mark Weber

College of Law Faculty

This Article analyzes authoritative sources concerning the Americans with Disabilities Act accommodation requirement and concludes: (1) Reasonable accommodation and undue hardship are two sides of the same coin. The statutory duty is accommodation up to the limit of hardship, and reasonable accommodation should not be a separate hurdle for claimants to surmount apart from the undue hardship defense. There is no such thing as “unreasonable accommodation” or “due hardship.” (2) The duty to accommodate is a substantial obligation, one that may be expensive to satisfy, and one that is not subject to a cost-benefits balance, but rather a cost-resources balance; …


Illinois Probate Law And Guardians Could Be Violating Convention On Genocide, James T. Struck Jan 2010

Illinois Probate Law And Guardians Could Be Violating Convention On Genocide, James T. Struck

James T Struck

Illinois could be violating Genocide Conventions by taking away rights of disabled and different. Illinois Guardians, some health care institutions or Cook County Guardian may take away your rights and resources when you come to Illinois or other places, so some warning about loss of rights/resources may be helpful. Illinois advertises that it has the largest state guardianship system in the US on their guardianship and advocacy site (2009 information). See the "Convention on the Prevention and Punishment of the Crime of Genocide." “Article 2 In the present Convention, genocide means any of the following acts committed with intent to …


Toward Universalism: What The Ada Amendments Act Of 2008 Can And Can't Do For Disability Rights, Kevin M. Barry Jan 2010

Toward Universalism: What The Ada Amendments Act Of 2008 Can And Can't Do For Disability Rights, Kevin M. Barry

Kevin M Barry

The social model of disability teaches that it is society’s treatment of impairments, not the impairments themselves, which limit people. But this model permits two different approaches to civil rights coverage: protect only some (the “minority group” approach) and protect all (the “universal” approach). While some scholars suggest that the ADA’s protected class of people with “disabilities” constituted an abandonment of the universal approach to coverage, this Article argues that the ADA’s three-pronged definition of “disability” embodied a tension between the minority group approach (in its first and second prongs) and the universal approach (in its “regarded as” prong). Although …


Settling Idea Cases: Making Up Is Hard To Do, Mark C. Weber Jan 2010

Settling Idea Cases: Making Up Is Hard To Do, Mark C. Weber

Mark C. Weber

Like most other legal disputes, most cases brought under the Individuals with Disabilities Education Act (IDEA) settle. But although IDEA, the federal law governing special education, was enacted a generation ago, litigants still lack guidance how the mechanisms of settlement should work, what the settlement agreement should look like, and what to do if one side of the dispute fails to live up to its agreement. Settling an IDEA case entails unique issues—and unique pitfalls—that make the topic even more challenging than the settlement of other cases. IDEA has a mediation provision with extensive requirements and a one-of-a-kind prehearing settlement …


A New Look At Section 504 And The Ada In Special Education Cases, Mark C. Weber Jan 2010

A New Look At Section 504 And The Ada In Special Education Cases, Mark C. Weber

Mark C. Weber

School districts are finding fewer children eligible for services under the Individuals with Disabilities Education Act (IDEA). At the same time Congress has expanded the number of children who are protected by section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act (ADA). These developments present the largely unexplored question of what obligations school districts owe children who have disabilities and are protected under section 504 and the ADA, but who are not eligible for services under IDEA. This article concludes that these children must be provided an education that meets their needs as adequately …


Special Education From The (Damp) Ground Up: Children With Disabilities In A Charter School-Dependent Educational System, Mark C. Weber Jan 2010

Special Education From The (Damp) Ground Up: Children With Disabilities In A Charter School-Dependent Educational System, Mark C. Weber

Mark C. Weber

Hurricane Katrina created the need and the opportunity to reconstitute the New Orleans public school system. Educational reformers took advantage of the destruction of existing institutions to build a new system based on educational choice and dependent on charter schools to provide the choices. The disaster also created the need and opportunity to rebuild the system of special education in the city, but education for children with disabilities appears to have been an afterthought. Reports have surfaced of children being steered away from charter schools or inadequately served there. This paper asks what principles should guide reformers in establishing education …


Unreasonable Accommodation And Due Hardship, Mark C. Weber Jan 2010

Unreasonable Accommodation And Due Hardship, Mark C. Weber

Mark C. Weber

This Article analyzes authoritative sources concerning the Americans with Disabilities Act accommodation requirement and concludes: (1) Reasonable accommodation and undue hardship are two sides of the same coin. The statutory duty is accommodation up to the limit of hardship, and reasonable accommodation should not be a separate hurdle for claimants to surmount apart from the undue hardship defense. There is no such thing as “unreasonable accommodation” or “due hardship.” (2) The duty to accommodate is a substantial obligation, one that may be expensive to satisfy, and one that is not subject to a cost-benefits balance, but rather a cost-resources balance; …


Race, Sex And Genes At Work: Uncovering The Lessons Of Norman-Bloodsaw, Elizabeth Pendo Jan 2010

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 …


Decriminalizing Students With Disabilities, Dean Hill Rivkin Jan 2010

Decriminalizing Students With Disabilities, Dean Hill Rivkin

NYLS Law Review

No abstract provided.


Rethinking Guardianship (Again): Substituted Decision Making As A Violation Of The Integration Mandated Of Title Ii Of The Americans With Disabilities Act, Leslie Salzman Jan 2010

Rethinking Guardianship (Again): Substituted Decision Making As A Violation Of The Integration Mandated Of Title Ii Of The Americans With Disabilities Act, Leslie Salzman

Articles

In every state, when an adult has a diminished capacity to make decisions about personal affairs or property management, a court may transfer the individual’s right to make decisions to a guardian. This Article argues that, in most cases, it would be preferable to support decision making rather than supplant it through guardianship, and then seeks to locate a right to receive such support as a less restrictive alternative to the substituted decision making that characterizes guardianship.

Building on the reasoning in Olmstead v. L.C. and subsequent decisions interpreting the Americans with Disabilities Act’s integration mandate, this Article argues that …


Autism In The Us: Social Movement And Legal Change, Daniela Caruso Jan 2010

Autism In The Us: Social Movement And Legal Change, Daniela Caruso

Faculty Scholarship

The social movement surrounding autism in the US has been rightly defined a ray of light in the history of social progress. The movement is inspired by a true understanding of neuro-diversity and is capable of bringing about desirable change in political discourse. At several points along the way, however, the legal reforms prompted by the autism movement have been grafted onto preexisting patterns of inequality in the allocation of welfare, education, and medical services. In a context most recently complicated by economic recession, autism-driven change bears the mark of political contingency and legal fragmentation. Distributively, it yields ambivalent results …


Enfeebling The Ada: The Ada Amendments Act Of 2008, Jeffrey D. Jones Jan 2010

Enfeebling The Ada: The Ada Amendments Act Of 2008, Jeffrey D. Jones

Oklahoma Law Review

No abstract provided.


A Service Learning Project: Disability, Access And Health Care, Elizabeth Pendo Jan 2010

A Service Learning Project: Disability, Access And Health Care, Elizabeth Pendo

All Faculty Scholarship

Last summer, I was thinking about a public service project for my disability discrimination law course. I teach the course in fall, and try to incorporate a project each year. At the same time, I was working on a project looking at barriers to health care for people with disabilities. Some of the barriers are well known, such as lower average incomes, disproportionate poverty, and issues with insurance coverage, to name just a few. I was looking at barriers of a different type, however: those posed by physically inaccessible facilities and equipment. This was a new area for me. Like …


Reducing Disparities Through Health Care Reform: Disability And Accessible Medical Equipment, Elizabeth Pendo Jan 2010

Reducing Disparities Through Health Care Reform: Disability And Accessible Medical Equipment, Elizabeth Pendo

All Faculty Scholarship

People with disabilities face multiple barriers to adequate health care and report poorer health status than people without disabilities. Although health care institutions, offices, and programs are required to be accessible, people with disabilities are still receiving unequal and in many cases inadequate care. The 2009 report by the National Council on Disability, The Current State of Health Care for People with Disabilities, reaffirmed some of these findings, concluding that people with disabilities experience significant health disparities and barriers to health care; encounter a lack of coverage for necessary services, medications, equipment, and technologies; and are not included in the …


Rethinking Guardianship (Again): Substituted Decision Making As A Violation Of The Integration Mandate Of Title Ii Of The Americans With Disabilities Act, Leslie Salzman Jan 2010

Rethinking Guardianship (Again): Substituted Decision Making As A Violation Of The Integration Mandate Of Title Ii Of The Americans With Disabilities Act, Leslie Salzman

University of Colorado Law Review

In every state, when an adult has a diminished capacity to make decisions about personal affairs or property management, a court may transfer the individual's right to make decisions to a guardian. This Article argues that, in most cases, it would be preferable to support decision making rather than supplant it through guardianship, and then seeks to locate a right to receive such support as a less restrictive alternative to the substituted decision making that characterizes guardianship. Building on the reasoning in Olmstead v. L.C. and subsequent decisions interpreting the Americans with Disabilities Act's integration mandate, this Article argues that …