Disability Law Commons^™

The Fallacy Of Choice: The Destructive Effect Of School Vouchers On Children With Disabilities, Ian P. Farrell, Chelsea Marx

American University Law Review

No abstract provided.

Lessons Learned From Texas' Special Education Cap, Raj Salhotra

Marquette Benefits and Social Welfare Law Review

No abstract provided.

Caged In: The Devastating Harms Of Solitary Confinement On Prisoners With Physical Disabilities, Jamelia Morgan

Faculty Articles and Papers

This article draws from interviews with currently and formerly incarcerated people with disabilities, disability rights advocates, prisoners' rights advocates, medical experts, legal scholars, and correctional officials, and examines the conditions of confinement, harms, and challenges facing prisoners with physical disabilities in solitary confinement. In addition, this article fills some of the gaps in data and where possible builds on existing data to provide a snapshot into (1) the number of people with physical disabilities; (2) the number of prisoners with physical disabilities in solitary confinement; and (3) the volume of grievances filed by prisoners with disabilities in ten state prison …

"When They Enter, We All Enter": Opening The Door To Intersectional Discrimination Claims Based On Race And Disability, Alice Abrokwa

Michigan Journal of Race and Law

This Article explores the intersection of race and disability in the context of employment discrimination, arguing that people of color with disabilities can and should obtain more robust relief for their harms by asserting intersectional discrimination claims. Professor Kimberlé Crenshaw first articulated the intersectionality framework by explaining that Black women can experience a form of discrimination distinct from that experienced by White women or Black men, that is, they may face discrimination as Black women due to the intersection of their race and gender. Likewise, people of color with disabilities can experience discrimination distinct from that felt by people of …

Rectifying The Tilt: Equality Lessons From Religion, Disability, Sexual Orientation, And Transgender, Chai R. Feldblum

Maine Law Review

The joy and the challenge of being located in an academic setting is that I am also able to engage in forays (albeit intermittent forays) into scholarly analysis. Delivering this lecture, and publishing this piece, provides an excellent opportunity for me to engage in such a foray. This piece, then, is a scholarly reflection on my advocacy experiences. My goal is to use my experiences in advocacy as fertile soil from which to create, I hope, a lovely flower of theory and conceptual thought. Before setting out on this endeavor, however, I would like to offer two postulates. There are …

Taking Care Of Business And Protecting Maine's Employees: Supervisor Liability For Employment Discrimination Under The Maine Human Rights Act, Katharine I. Rand

Maine Law Review

On the heels of federal legislation prohibiting employment discrimination most states, including Maine, have enacted their own civil or human rights statutes aimed at eliminating discriminatory behavior in the workplace. Like its federal counterpart, Title VII of the Civil Rights Act of 1964 (Title VII), the Maine Human Rights Act, enacted in 1971, prohibits employers from discriminating on the basis of race, gender, age, religion, or national origin and provides a civil remedy for victims of employment discrimination. Moreover, like Title VII, the question of just who constitutes a liable “employer” under the Maine Human Rights Act has been the …

Hiv And The Ada: What Is A Direct Threat?, Dawn-Marie Harmon

Maine Law Review

Anne, a surgical technician at a local hospital, recently learned that she was HIV-positive. She works in the emergency room and, as a part of her job, she hands surgical instruments to doctors performing emergency surgery. It is a fast paced and unpredictable environment. Her hands often come in contact with sharp instruments. Although Anne has never put her hands into a patient's body cavity, there is a remote possibility that she may need to do so in the future. There is always a possibility, however small, that she will cut herself and come into blood-to-blood contact with a doctor …

An Americans With Disabilities Act For Everyone, And For The Ages As Well, Anita Silvers, Leslie P. Francis

Cardozo Law Review

The article argues that the Americans with Disabilities Act (ADA) was originally intended to universally protect individuals from disability-based discrimination, rather than focusing on categorizing who is disabled. The authors contend that the ADA should be interpreted to prevent discrimination based on disability for everyone, regardless of specific eligibility criteria, and that the statute's effectiveness has been undermined by court decisions that emphasize categorical limitations. They advocate for a broader, more inclusive understanding of the ADA, aligned with its original purpose of combating discrimination.

Meaningful Access And Disability Discrimination: The Role Of Social Science And Other Empirical Evidence, Mark C. Weber

Cardozo Law Review

In cases alleging disability discrimination in the provision of state and local government services, courts frequently hold that plaintiffs' claims depend on the question whether, despite the disadvantage that government actions impose, the plaintiffs nevertheless receive meaningful access to the government services. Whether people with disabilities actually have meaningful access is in reality a factual question, one on which social science and other empirically supported facts should matter. But courts frequently ignore evidence about the nature and level of access that people with disabilities have to government programs when decisions regarding those programs are being challenged. This Article catalogues judicial …

Making Accessible Futures: From The Capitol Crawl To #Cripthevote, Faye Ginsburg, Rayna Rapp

Cardozo Law Review

The article examines the evolving recognition and integration of disability rights in American society, emphasizing the transformative impact of the Americans with Disabilities Act (ADA) and the cultural shift towards inclusivity. It highlights the growing demographic presence of individuals with disabilities, the role of activism, and the importance of inclusive design and representation in media and politics. The authors argue that while significant progress has been made, ongoing advocacy is crucial to address persistent challenges and ensure the full recognition of disability as a valued aspect of human diversity.

Defining "Disability" Under The Maine Human Rights Act After Whitney V. Wal-Mart Stores, Inc., Michael J. Anderson

Maine Law Review

In Whitney v. Wal-Mart Stores, Inc., the Maine Supreme Judicial Court, sitting as the Law Court, was asked to determine whether the Maine Human Rights Act (MHRA) requires plaintiffs alleging disability discrimination to show that their condition substantially limits one or more major life activities. In determining that the MHRA does not require such a showing, the court effectively established that the MHRA was intended to protect a much broader range of medical conditions than its federal counterparts, the Rehabilitation Act of 1973 (Rehabilitation Act) and the Americans with Disabilities Act of 1990 (ADA). In so doing, the Whitney court …

A Silent Struggle: Constitutional Violations Against The Hearing Impaired In New York State Prisons, Farina Barth

Journal Articles

No abstract provided.

On Nyc’S Paratransit, Fighting For Safety, Respect, And Human Dignity, Britney Wilson

Other Publications

No abstract provided.

Unbefriended And Unrepresented: Better Medical Decision Making For Incapacitated Patients Without Healthcare Surrogates, Thaddeus Mason Pope

Georgia State University Law Review

The purpose of this Article is to help improve the quality of healthcare decision making for the unbefriended. I hope that this comprehensive and systematic explanation of both the problem and the available solutions will empower both public and clinical policymakers to develop more informed and more circumspect policies and procedures

2016-2017 Georgia State University Law Review Symposium: Exploring The Right To Die In The U.S., Margaret Pabst Battin

Georgia State University Law Review

This transcript is a reproduction of the Keynote Presentation at the 2016–2017 Georgia State University Law Review Symposium on November 11, 2016. Margaret Battin, is a Distinguished Professor of Philosophy and Adjunct Professor of Internal Medicine at the University of Utah.

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. As to …

Websites As Facilities Under Ada Title Iii, Ryan C. Brunner

Duke Law & Technology Review

Title III of the Americans with Disabilities Act requires public accommodations—private entities that offer goods or services to the public—to be accessible to individuals with disabilities. There is an ongoing debate about whether Title III applies to websites that offer services to the public, but this debate may be resolved in the coming years by litigation or Department of Justice regulations. Assuming for the sake of argument that Title III will eventually be applied to websites, the next inquiry is what that application should look like. The regulatory definition of “facilities” should be amended to include nonphysical places of public …

Disability Rights In The Age Of Uber: Applying The Americans With Disabilities Act Of 1990 To Transportation Network Companies, Rachel Reed

Georgia State University Law Review

Within the past year, individual plaintiffs and disability rights organizations have initiated a number of lawsuits against Uber, and similar companies like Lyft, alleging violations of Title III of the Americans with Disabilities Act of 1990 (Title III). In each of these cases, the plaintiffs’ success turns on affirmatively answering one significant threshold question: Whether Uber, or a similar entity, falls within the scope of Title III. Traditional taxi companies fall squarely within the Americans with Disabilities Act of 1990’s (ADA) coverage under 42 U.S.C. § 12184 (§ 12184), which governs private companies that provide transportation services. Given the similarities …

Tobacco Denormalization, Anti-Healthism, And Health Justice

Marquette Benefits and Social Welfare Law Review

None

Achieving The Promise Of Assistive Technology: Why Assistive Technology Evaluations Are Essential For Compliance With The Individuals With Disabilities Education Act, Alexandra Abend

Cardozo Law Review

The note advocates for a more rigorous and proactive approach to incorporating assistive technology (AT) in special education, arguing that it is essential for ensuring students with disabilities receive a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA). It critiques the current legal standard established by Rowley as insufficient, calling for a higher threshold that prioritizes maximizing educational opportunities. The analysis emphasizes the importance of comprehensive AT evaluations and the need for systemic improvements to prevent procedural violations and ensure effective implementation of AT in Individualized Education Programs (IEPs).

Restoring Civil Rights To The Disabled In Health Insurance, Valarie K. Blake

Scholarly Works

Disability discrimination permeates the American health insurance system. This discrimination is problematic because adequate health benefits at affordable rates are integral to a disabled person’s full participation and integration in society. Civil rights laws for the disabled, like the Americans with Disabilities Act (ADA) and its predecessor, the Rehabilitation Act of 1973 (Rehab Act), have done much to improve the lives of disabled Americans in the workplace and in public life. Yet in healthcare, particularly healthcare financing, civil rights efforts have been stunted.

Civil rights in healthcare have failed for a number of reasons yet one reason is undoubtedly the …

How Minnesota's Reliance On Private Group Homes Impacts The Rights Of Indviduals With Disabilities, Abbie J. Thurmes

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Ending Disparities And Achieving Justice For Individuals With Mental Disabilities, Robert K. Goldman, Sheila Shea

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Special Issue "Health Care Law And The Rights Of Individuals With Disabilities", Elizabeth Pendo, Guest Editor

All Faculty Scholarship

People with disabilities are vulnerable. They carry high risk for poor health and health outcomes. As a group, they experience social disadvantages such as poverty, underemployment and unemployment, isolation, and discrimination at a higher rate than the general population. They also face multiple barriers to quality health care and report poorer health status than people without disabilities. This Special Issue will explore the key health disparities and barriers to health care experienced by people with disabilities, and explore the legal, ethical, and social issues they raise. It will investigate the legal requirements of the Americans with Disabilities and other antidiscrimination …

Perspectives On The Meaning Of "Disability", Leslie Francis, Anita Silvers

Utah Law Faculty Scholarship

The meaning of “disability” has shifted with changes in public policy. Half a century ago, Congress was convinced that narrow determinations of disability are easy for physicians to make. But with the advent of universal civil rights protection against disability discrimination in the US, deciding whether particular individuals are disabled became increasingly contentious, until Congress intervened. What should now be addressed in each case is not whether the functionally compromised person is severely disabled enough to exercise a right, but whether mitigating interventions and reasonable accommodations can together achieve equitable access for that person.

Bullying And The Individuals With Disabililities Education Act (Idea): A Framework For Provising Relief To Students With Disabilities, Sarah H. Ganley

Cardozo Law Review

No abstract provided.

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

Supreme Court Preview

No abstract provided.

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 …

Immigration And Disability In The United States And Canada, Mark Weber

College of Law Faculty

Disability arises from the dynamic between people’s physical and mental conditions andthe physical and attitudinal barriers in the environment. Applying this idea aboutdisability to United States and Canadian immigration law draws attention to barriers toentry and eventual citizenship for individuals who have disabilities. Historically, NorthAmerican law excluded many classes of immigrants, including those with intellectualdisabilities, mental illness, physical defects, and conditions likely to cause dependency.Though exclusions for individuals likely to draw excessive public resources and thosewith communicable diseases still exist in Canada and the United States, in recent yearsthe United States permitted legalization for severely disabled undocumented immigrantsalready in the …

How The Ada Regulates And Restricts Solitary Confinement For People With Mental Disabilities, Margo Schlanger

Other Publications

In a landmark decision two decades ago, United States District Judge Thelton Henderson emphasized the toxic effects of solitary confinement for inmates with mental illness. In Madrid v. Gomez, a case about California’s Pelican Bay prison, Judge Henderson wrote that isolated conditions in the Special Housing Unit, or SHU, while not amounting to cruel and unusual punishment for all prisoners, were unconstitutional for those “at a particularly high risk for suffering very serious or severe injury to their mental health . . . .” Vulnerable prisoners included those with pre-existing mental illness, intellectual disabilities, and brain damage. Henderson concluded that …