Disability Law Commons^™

Religious Accommodations In The Dobbs Era, Ann C. Mcginley

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Given the deep political divide in the U.S. and the emotional response to the abortion issue, workplaces may become hostile environments that harm workers based on their pro- or anti-abortion views or their out-of-work activism. Besides hostile environments, some workers may suffer workplace discipline based on their speech at work or refusals to engage in certain job requirements. Disciplining employees for engaging in workplace speech or refusal to perform parts of their jobs may violate workers’ rights under Title VII of the Civil Rights Act of 1964, which requires that employers grant religious accommodations in the workplace if doing so …

Judicial Threats To Olmstead And The Americans With Disabilities Act, Jean Mangan, Andrea L. Dennis

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The authors examine the U.S. Supreme Court decision in Olmstead v L.C. ex rel. Zimring and related Supreme Court rulings that could raise questions about the Americans With Disabilities Act's guarantee of care in integrated settings and about which governmental entity's interpretation should be respected when deciding whether a state has met its integration obligation. After reviewing statutes, administrative regulations, and judicial decisions, the authors conclude that Olmstead's integration mandate will likely stand, but actions should be taken to codify the rule in federal and state statutes so that governmental agencies will continue to have the authority to ensure compliance …

What The Lawyer Well-Being Movement Could Learn From The Americans With Disabilities Act, Alex B. Long

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In 2017, the ABA National Task Force on Lawyer Well-Being published The Path to Well-Being: Practical Recommendations for Positive Change, a report that contained numerous recommendations concerning how the legal profession can better address the alarming rates of depression, anxiety, and substance abuse within the legal profession. Since the publication of the report, there have been numerous ethics opinions, bar journal reports, and articles dealing with one issue in particular: the ethical duty on the part of law firm partners and management to supervise or to otherwise take action with respect to another lawyer who may be experiencing depression, anxiety, …

Advancing Harm Reduction Services In The United States: The Untapped Role Of The Americans With Disabilities Act, Valarie K. Blake, Abigail Fletes, Maria Katherine Delos Reyes, John C. Messinger, Leo Beletsky

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Now in its third decade, the overdose crisis continues to worsen. Harm reduction strategies, such as syringe service programs (SSPs), are proven, cost-effective responses to this ongoing public health emergency. Despite extensive research demonstrating that the health and social benefits of harm reduction services far outweigh alleged negative externalities, the number and scope of these programs continue to be severely limited. Restrictive zoning and other discriminatory legal measures figure among key barriers to harm reduction service access. The Americans with Disabilities Act (ADA) and Rehabilitation Act (RA) have recently gained prominence in challenging discrimination against people who seek substance use …

Covid-19 And Individuals With Developmental Disabilities: Tragic Realities And Cautious Hope, Samuel J. Levine

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The COVID-19 pandemic has cast the United States, along with the rest of the world, into a time of crisis and uncertainty unlike any other in recent memory. Months into the pandemic, there is scant agreement among scientists, government officials, and large segments of the public, both domestic and abroad, as to determining the causes and workings of the virus, designing appropriate and effective responses to the outbreak, and constructing accurate assessments of the future—or even of the present. Indeed, the availability of concrete information about the virus and its effects is grossly inadequate and often replaced by anecdotal or …

Intersectional Cohorts, Dis/Ability, And Class Actions, Ann C. Mcginley, Frank Rudy Cooper

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This Article occupies the junction of dis/abilities studies and critical race theory. It joins the growing commentary analyzing the groundbreaking lawsuit by Compton, California students and teachers against the Compton school district under federal disability law and seeking class certification and injunctive relief in the form of teacher training, provision of counselors, and changed disciplinary practices. The federal district court denied the defendants’ motion to dismiss but also denied the plaintiffs’ motion for a preliminary injunction and class certification, resulting in prolonged settlement talks. The suit is controversial because it seeks to address the trauma suffered by Black and Latinx …

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

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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 …

Review Of Alaska Mental Health Statutes, Sara Gordon, Melissa Piasecki, Gil Kahn, Dawn Nielsen

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This report identifies key statutory provisions that we recommend be amended, a description of our findings based on interviews with stakeholders, legislative history of the Alaska statutes, reviews of national best practices and, where applicable, information about emerging areas in national mental health law for Alaska to consider in creating new law. Our recommendations are based in large part on significant advances in law and medicine in the understanding and treatment of mental illness that have occurred in the years since Alaska last made significant and substantive reforms to its criminal and civil mental health statutes. It is important to …

Gambling Disorder, Vulnerability, And The Law: Mapping The Field, Stacey A. Tovino

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This Article seeks to descriptively map the sub-field of gambling disorder and the law and ask whether individuals with gambling disorder are vulnerable under the law. Like other scholarship that descriptively maps ethical, legal, and social implications of lesser known conditions and developments, this Article seeks to describe the treatment of individuals with gambling disorder in a variety of illustrative, but not exhaustive, legal contexts, to identify the limited scholarship assessing the application of the law to individuals with gambling disorder, and to invite members of the health law academy to bring their significant expertise to bear on these issues …

Dying Fast: Suicide In Individuals With Gambling Disorder, Stacey A. Tovino

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These published remarks carefully document the history of health insurance coverage of gambling disorder. They begin by providing examples of gambling disorder insurance benefit disparities in the contexts of public health care programs and private health plans. They proceed by reviewing the effect of three pieces of legislation, including the Mental Health Parity Act of 1996, the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008, and the Affordable Care Act of 2010, on public and private insurance coverage of gambling disorder. They highlight the partial victory that will occur in some states beginning in …

Assumed Sane, Fatma Marouf

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In 2014, the Board of Immigration Appeals (BIA) held in Matter of G-G-S- that a noncitizen’s mental health status at the time of an offense is irrelevant to determining whether the offense is a “particularly serious crime” for immigration purposes. Since a “particularly serious crime” is a bar to asylum and withholding of removal, it can result in a noncitizen’s deportation to a country where he or she faces a serious risk of persecution. In deciding that immigration judges “are constrained by how mental health issues were addressed as part of the criminal proceedings,” the BIA failed to recognize the …

Medicaid At 50: No Longer Limited To The "Deserving" Poor?, David Orentlicher

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Professor David Orentlicher considers the significance of the passage of the Affordable Care Act on the Medicaid program. He discusses the expansion of the program's recipients from merely children, pregnant women, single caretakers of children, and disabled persons to all persons up to 138% of the federal poverty level. Professor Orentlicher argues that the Medicaid expansion reflects concerns about the high costs of health care rather than an evolution in societal thinking about the "deserving" poor. As a result, the expansion may not provide a stable source of health care coverage for the expansion population.

Incompetent But Deportable: The Case For A Right To Mental Competence In Removal Proceedings, Fatma E. Marouf

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Important strides are currently being made toward increasing procedural due process protections for noncitizens with serious mental disabilities in removal proceedings, such as providing them with competency hearings and appointed counsel. This Article goes even further, arguing that courts should recognize a substantive due process right to competence in removal proceedings, which would prevent those found mentally incompetent from being deported. Recognizing a right to competence in a quasi-criminal proceeding such as removal would not be unprecedented, as most states already recognize this right in juvenile adjudication proceedings. The Article demonstrates that the same reasons underlying the prohibition against trial …

The Marrakesh Puzzle, Marketa Trimble

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This article analyzes the puzzle created by the 2013 Marrakesh Treaty in its provisions concerning the cross-border exchange of copies of copyrighted works made for use by persons who are “blind, visually impaired, or otherwise print disabled” (copies known as “accessible format copies”). The analysis should assist executive and legislative experts as they seek optimal methods for implementing the Treaty. The article provides an overview of the Treaty, notes its unique features, and examines in detail its provisions on the cross-border exchange of accessible format copies. The article discusses three possible sources for implementation tools – choice of law rules, …

Lost In The Shuffle: How Health And Disability Laws Hurt Disordered Gamblers, Stacey A. Tovino

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Gambling disorder is not a legally sympathetic health condition. Health insurance policies and plans have long excluded treatment for gambling disorder from health insurance coverage. Individuals with gambling disorder who seek disability income insurance benefits from public and private disability income insurers also tend not to be successful in their claims. In addition, federal and state antidiscrimination laws currently exclude individuals with gambling disorder from disability discrimination protections. This Article is the first law review article to challenge the legal treatment of individuals with gambling disorder by showing how health insurance and antidiscrimination laws hurt problem gamblers. Using neuroscience, economics, …

Recruiting Sexual Minorities And People With Disabilities To Be Dean, Joan W. Howarth

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As our day-to-day work lives make abundantly clear, a law faculty is a many-headed creature: an assortment of people with a variety of interests, strengths, foibles, personalities, and identities. Within the legal academy, a dominant consensus acknowledges that a strong faculty embodies diversity along multiple axes, including, for example, race, gender, religion, age, political ideology, research and teaching methodologies, and subject matter expertise.

The dean, however, stands alone, and stands above. Thus, issues of expectation, representation, comfort with and fear of difference operate quite differently when deans are selected, and when they do their jobs. The dean exercises authority over …

Enabling Work For People With Disabilities: A Post-Integrationist Revision Of Underutilized Tax Incentives, Francine J. Lipman

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No abstract provided.

Thou Shalt Not Put A Stumbling Block Before The Blind": The Americans With Disabilities Act And Public Transit For The Disabled, Michael Lewyn

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The Americans with Disabilities Act (ADA), ordered local governments to make bus and train systems more accessible to the disabled, and imposed costly requirements upon local public transit systems - but did not give local governments funds with which to satisfy this mandate. By reducing the funds available to transit systems, the ADA has sometimes forced cutbacks in transit service for everyone including, ironically, the disabled to the extent that disabled people were able to use public transit before the ADA's enactment). Thus, the ADA has occasionally (at least in times of budgetary austerity) been counterproductive. The ADA's inadequacy is …

The Employment Law Decisions Of The October 2000 Term Of The Supreme Court: A Review And Analysis, Ann C. Hodges, Douglas D. Scherer

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During the October 2000 Term, the Supreme Court delivered major setbacks for employees in Circuit City Stores, Inc. v. Adams,' which upheld mandatory and binding arbitration of federal and state employment discrimination claims through arbitration clauses forced upon employees as a condition of employment, and in Board of Trustees of the University of Alabama v. Garrett, which shielded state employers from federal court law suits brought under the Americans with Disabilities Act by victims of disability discrimination in employment. Employees escaped harm in Pollard v. E.I du Pont de Nemours & Co., in which the Court followed nearly unanimous circuit …

Discrimination Cases In The Supreme Court’S 1998 Term, Eileen Kaufman

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In the Supreme Court's 1997 Term, the Supreme Court had decided a record number of statutory discrimination cases. However, that record was exceeded in the Supreme Court's 1998 Term with the Court addressing issues arising under Title VII, which covers discrimination in employment; Title IX, which covers discrimination in schools; and most significantly, the Americans with Disabilities Act, which prohibits discrimination based on disability. Overall, the term scored significant victories for employers who were given considerable latitude to set their own physical characteristic standards and who were, to a large extent, immunized from liability for punitive damages. There was an …

Reevaluating Substantive Due Process As A Source Of Protection For Psychiatric Patients To Refuse Drugs, William M. Brooks

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No abstract provided.

Disability, Deference, And The Integrity Of The Academic Enterprise, Anne Proffitt Dupre

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Congress has established a complex set of laws regarding the education of disabled students. This Article discusses the obligations the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and the Individuals with Disabilities Education Act impose on schools and focuses on how courts interpreting these statutes address the decisions of educators regarding how best to educate disabled students. Professor Dupre brings to light a striking contrast between how courts regard the decisions of educators in higher education as opposed to the decisions of educators in primary and secondary schools, routinely according the former considerable deference while often …