Disability Law Commons^™

Enforcement Of The Americans With Disabilities Act: Remedying “Abusive” Litigation While Strengthening Disability Rights, Evelyn Clark

Washington and Lee Journal of Civil Rights and Social Justice

This Note explores the Americans with Disabilities Act and the private litigation used to enforce compliance. While the ADA was designed to be enforced by private citizens, many have called for reform to limit what they see as “abusive” litigants. This Note focuses on (1) the perceived problem of vexatious litigants abusing the ADA and its state counterparts to benefit monetarily, (2) the attempted solutions on both a state and federal level, and (3) recommended solutions that focus on protecting the rights of individuals with disabilities while limiting abusive litigation meant to extort businesses.

Who Gets The Ventilator? Disability Discrimination In Covid-19 Medical-Rationing Protocols, Samuel Bagenstos

Articles

The coronavirus pandemic has forced us to reckon with the possibility of having to ration life-saving medical treatments. In response, many health systems have employed protocols that explicitly de-prioritize people for these treatments based on pre-existing disabilities. This Essay argues that such protocols violate the Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act. Such explicit discrimination on its face violates these statutes. Nor can medical providers simply define disabled patients as being “unqualified” because of disabilities that do not affect the ability to ameliorate the condition for which treatment is sought. A proper interpretation of the …

Digital Accessibility In The Hospitality And Tourism Industry: Legal And Ethical Considerations, Debra D. Burke, Kenneth J. Sanney, Dan Clapper

William & Mary Business Law Review

Federal law requires accessibility for public sector websites. What about the web pages and apps of hotels, restaurants, and tourism providers? The Americans with Disabilities Act may cover private sector websites if they are considered a place of public accommodation, but the law is unclear. This Article will provide an overview of the legal responsibilities of operators to provide accessibility to persons with disabilities, discuss the World Wide Web Consortium’s guidelines for web accessibility, and argue that the hospitality and tourism industry has a unique ethical obligation to fill in the gap where the legal system has failed this population.

Workplace Wellness Programs: Empirical Doubt, Legal Ambiguity, And Conceptual Confusion, Camila Strassle, Benjamin E. Berkman

William & Mary Law Review

Federal laws that protect workers from insurance discrimination and infringement of health privacy include exceptions for wellness programs that are “voluntary” and “reasonably designed” to improve health. Initially, these exceptions were intended to give employers the flexibility to create innovative wellness programs that would appeal to workers, increase productivity, and protect the workforce from preventable health conditions.

Yet a detailed look at the scientific literature reveals that wellness program efficacy is quite disputed, and even highly touted examples of program success have been shown to be unreliable. Meanwhile, the latest administrative regulations on wellness programs were vacated by a district …

Mediating Psychiatric Disability Accommodations For Workers In Violent Times, Michael Z. Green

Faculty Scholarship

Most workers in the United States are unhappy. Manifestations of that dissatisfaction can result in many workplace dilemmas when confronted with the situation of an employee dealing with mental illness. Fears of violence in our society have become prevalent with the increasing ferocity of high-profile and mass attacks in and out of the workplace. In believing mental illness contributes to some of these incidents, employers and co-workers have become extremely sensitive when a co-worker with a psychiatric disability has exhibited harassing or threatening behavior.

The Americans with Disabilities Act (ADA) was amended by the ADA Amendments Act of 2008 (ADAAA), …

Mediation In Education For Foster Care, Anelise Powers

Pepperdine Dispute Resolution Law Journal

There are well over 400,000 children in foster care. Education can improve the well-being of foster children in critical development stages of life and support their economic success in adulthood. In recent years, the law has given greater priority to the education of foster children, and foster children are often eligible for additional services. However, a common trend in foster care research is that foster children, though eligible, do not always receive the services created to assist them. This paper will explore how improving mediation related to education and foster care can help maximize the impact of efforts to improve …

Internet Architecture And Disability, Blake Reid

Indiana Law Journal

The Internet is essential for education, employment, information, and cultural and democratic participation. For tens of millions of people with disabilities in the United States, barriers to accessing the Internet—including the visual presentation of information to people who are blind or visually impaired, the aural presentation of information to people who are deaf or hard of hearing, and the persistence of Internet technology, interfaces, and content without regard to prohibitive cognitive load for people with cognitive and intellectual disabilities—collectively pose one of the most significant civil rights issues of the information age. Yet disability law lacks a comprehensive theoretical approach …

The Blind Leading The Deaf: An Investigation Of The Inconsistent Accommodations The Justice System Provides To People Who Are Deaf, Elizabeth Pindilli

William & Mary Journal of Race, Gender, and Social Justice

Historically, and to this day, people with disabilities have not been considered capable of determining their own needs. Instead, the general population has taken it upon themselves to dictate what accommodations they shall receive. This becomes particularly problematic for the deaf community when interacting with the criminal justice system, where a lack of communication is synonymous with a lack of justice. In this situation, the state should defer to the individual’s understanding of their needs, or carry the burden of proving that another accommodation is equally effective.

The Website Accommodations Test: Applying The Americans With Disabilities Act To Websites, Ashley Cheff

William & Mary Journal of Race, Gender, and Social Justice

In 2017, 814 lawsuits were filed alleging discrimination under the Americans with Disabilities Act (ADA) due to website inaccessibility, up from 262 in the previous year. Beginning in July 2010, the federal Department of Justice (DOJ) considered issuing regulations under ADA Title III related to website accessibility. However, no changes have been made to date, leaving courts split over whether websites constitute places of public accommodation via the ADA. Dispositive to some jurisdictions’ holdings is whether a website has a nexus to a physical place, which may lend toward viewing the site as a public accommodation. Other jurisdictions provide that …

Student Note: Finding The Positive In A Positive Drug Test: How Narrowing The Definition Of An Individualized Pre-Employment Assessment Under The Ada Can Encourage Recovery From Opioid Dependence, Sarah Ferraro

Belmont Health Law Journal

This note will address the disparities in the way courts have analyzed the direct threat exception to ADA protection, and why a uniform application of the exception is crucial to both employers and those in recovery. Part I examines how opioids have devolved from an effective pain management tool to a national enemy. This section will answer common questions about why opioids are so addictive and why doctors prescribe them in the first place. It also addresses the scope of the ADA and the direct threat exception used to justify a decision not to hire a prescription drug user, as …

Screened Out Of Housing: The Impact Of Misleading Tenant Screening Reports And The Potential For Criminal Expungement As A Model For Effectively Sealing Evictions, Katelyn Polk

Northwestern Journal of Law & Social Policy

Having an eviction record “blacklists” tenants from finding future housing. Even renters with mere eviction filings—not eviction orders—on their records face the harsh collateral consequences of eviction. This Note argues that eviction records should be sealed at filing and only released into the public record if a landlord prevails in court. Juvenile record expungement mechanisms in Illinois serve as a model for one way to protect people with eviction records. Recent updates to the Illinois juvenile expungement process provided for the automatic expungement of certain records and strengthened the confidentiality protections of juvenile records. Illinois protects juvenile records because it …

Law In The Time Of Covid-19, Katharina Pistor

Faculty Books

The COVID-19 crisis has ended and upended lives around the globe. In addition to killing over 160,000 people, more than 35,000 in the United States alone, its secondary effects have been as devastating. These secondary effects pose fundamental challenges to the rules that govern our social, political, and economic lives. These rules are the domain of lawyers. Law in the Time of COVID-19 is the product of a joint effort by members of the faculty of Columbia Law School and several law professors from other schools.

This volume offers guidance for thinking about some the most pressing legal issues the …

Four Pathways Of Undermining Board Of Trustees Of The University Of Alabama V. Garrett, Derek Warden

University of Arkansas at Little Rock Law Review

In Board of Trustees of the University of Alabama v. Garrett, the Supreme Court held that Title I of the ADA did not validly abrogate state sovereign immunity; and as such, a plaintiff could not obtain damages against the states or sue the states directly for injunctive relief. Many courts and scholars have read Garrett as sounding the death knell for ADA Title I government employee plaintiffs. This article shows that such fears are misplaced. Indeed, this article offers four pathways around Garrett that show Title I and its requirements are very much alive and well. First, the article shows …

Disability Rights And The Discourse Of Justice, Samuel R. Bagenstos

SMU Law Review Forum

Although the ADA has changed the built architecture of America and dramatically increased the visibility of disabled people, it has not meaningfully increased disability employment rates. And the statute continues to provoke a backlash. Disability rights advocates and sympathizers offer two principal stories to explain this state of affairs. One, the “lost-bipartisanship” story, asserts that disability rights were once an enterprise broadly endorsed across the political spectrum but that they have fallen prey to the massive rise in partisan polarization in the United States. The other, the “legal-change-outpacing-social-change” story, asserts that the ADA was essentially adopted too soon—that the legislative …

Disability Rights And The Discourse Of Justice., Samuel Bagenstos

Articles

Although the ADA has changed the built architecture of America and dramatically increased the visibility of disabled people, it has not meaningfully increased disability employment rates. And the statute continues to provoke a backlash. Disability rights advocates and sympathizers offer two principal stories to explain this state of affairs. One, the “lost-bipartisanship” story, asserts that disability rights were once an enterprise broadly endorsed across the political spectrum but that they have fallen prey to the massive rise in partisan polarization in the United States. The other, the “legal-change-outpacing-social- change” story, asserts that the ADA was essentially adopted too soon—that the …

Recognizing The Need For Mental Health Reform In The Texas Department Of Criminal Justice, Kara Mchorse

St. Mary's Law Journal

The ways in which mental health care and the criminal justice system interact are in desperate need of reform in Texas. The rate of mental illness in Texas is higher than the current state of mental health care can provide for. While state hospitals were once the primary care facilities of those with mental illness, the Texas Department of Criminal Justice (TDCJ) has taken on that role in the last few decades; and when the criminal justice system becomes entangled with mental health care, it often leads to “unmitigated disaster.” If Texas continues to allow the TDCJ to act as …

Table Of Contents, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.

Disability Rights Past, Present And Future: A Roadmap For Disability Rights, Marcy Karin, Lara Bollinger

University of the District of Columbia Law Review

The Americans with Disabilities Act (“ADA”)2 “was and is all about civil rights.”3 Enacted in 1990, its goal was to prohibit discrimination based on disability across society, from employment to places of public accommodation and government services. As the byproduct of bipartisan support and significant advocacy and leadership by members and allies of the disability community, there were high hopes that the ADA would live up to its goal. Unfortunately, that reality never came to pass for many individuals with disabilities. Instead, a line of Supreme Court decisions in 1999 and 2002 imposed increasingly narrow interpretations of the law’s core …

Debilitating Southeastern Community College V. Davis: Achieving The Promise Of Disability Civil Rights, Leslie Francis

University of the District of Columbia Law Review

Disability civil rights law today continues to be shaped by troubling precedent created in initial decisions of the Supreme Court under the Rehabilitation Act. This article explores the first of these decisions, Southeastern Community College v. Davis, demonstrates Davis’ continuing impact, and analyzes how this impact may be addressed. Davis was a suit brought by a hearing-impaired student who had been refused accommodations and denied admission to the College’s nursing program. Critical litigation decisions on behalf of Davis at the trial court did not contest the College’s failure to provide accommodations that are common today, such as sign interpretation, or …

Challenging Transition-Related Care Exclusions Through Disability Rights Law, Kevin Barry

University of the District of Columbia Law Review

Despite the growing visibility and acceptance of transgender people, discrimination against them persists.1 Transgender people are routinely denied identity documents that accurately reflect their sex.2 They are excluded from service in the U.S. military and from the protections of state civil rights laws.3 They are fired from their jobs, evicted from their homes, turned away from homeless shelters, denied custody of their children, harassed by law enforcement, and deprived of access to appropriate single-sex services in schools, prisons, and immigration detention centers—because they are transgender.4

Diversity And Inclusion In The American Legal Profession: First Phase Findings From A National Study Of Lawyers With Disabilities And Lawyers Who Identify As Lgbtq+, Peter Blanck, Ynesse Abdul-Malak, Meera Adya, Fitore Hyseni, Mary Killeen, Fatma Altunkol Wise

University of the District of Columbia Law Review

This article presents initial, descriptive findings from the first phase of a national study, with a planned longitudinal component, conducted in collaboration with the American Bar Association (“ABA”).1 With representation from all U.S. regions and states, as well as the District of Columbia, the study examined lawyers with diverse backgrounds, with a primary focus on lawyers who identify as having health conditions, impairments, and disabilities, and on lawyers who identify as lesbian, gay, bisexual, transgender, queer, or as having other sexual orientations and gender identities (“LGBTQ+” as an overarching term). Importantly, the investigation also considered the intersectional nature of these …

What Can The Protection And Advocacy Network Offer To Our Veterans?, David A. Boyer

University of the District of Columbia Law Review

The desire to compensate veterans predates the establishment of the United States (“U.S.”). In 1636, individuals with disabilities received pensions for defending the Plymouth colony against Native Americans.1 Throughout history, this practice continued, as documented by the U.S. Department of Veterans Affairs (“VA”).2 By 1930, President Herbert Hoover signed the Executive Order 5398, which created the Veterans Administration.3 Prior to President Hoover’s signing of that executive order, the available veteran services were divided by three separate governmental agencies: the Veterans’ Bureau, the Pensions Bureau, and the Soldiers’ Home.4 Consequently, that executive order combined all three agencies into one that concentrated …

Should Veterans Disability Compensation Be Conditional Upon Veterans Working Towards Rehabilitation And Return To Employment?, Heather Ansley, Aniela Szymanski

University of the District of Columbia Law Review

The Department of Veterans Affairs (VA) has experienced dramatic increases in its budgets since September 11, 2001.1 Increasing federal deficits during this time has led Congress to seek spending cuts, causing tensions in efforts to ensure that a declining veteran population receives the quality benefits and services they earned through years of service.2While the number of veterans in the United States has steadily been declining due to veterans of World War II, Korea, and Vietnam dying,3 the number of veterans receiving disability compensation has risen dramatically due to injuries sustained by service members in conflicts in Iraq and Afghanistan, and …

Conditional Parentage Is The New Eugenics, Dr. Yael Efron, Dr. Pnina Lifshitz-Aviram

Child and Family Law Journal

No abstract provided.

The Baker Act: Time For Florida To Get Its Act Together, Alexander Lemieux

Child and Family Law Journal

No abstract provided.

May Hospitals Withhold Ventilators From Covid-19 Patients With Pre-Existing Disabilities? Notes On The Law And Ethics Of Disability-Based Medical Rationing, Samuel R. Bagenstos

Law & Economics Working Papers

Thanks to the coronavirus pandemic, the threat of medical rationing is now clear and present. Hospitals faced with a crush of patients must now seriously confront questions of how to allocate scarce resources—notably life-saving ventilators—at a time of severe shortage. In their protocols for addressing this situation, hospitals and state agencies often employ explicitly disability-based distinctions. For example, Alabama’s crisis standards of care provide that “people with severe or profound intellectual disability ‘are unlikely candidates for ventilator support.’” This essay, written as this crisis unfolds, argues that disability-based distinctions like these violate the law. The Americans with Disabilities Act, the …

Pups, Paperwork, And Process: Confusion And Conflict Regarding Serviceand Assistance Animals Under Federal Law, Rebecca J. Huss

Nevada Law Journal

No abstract provided.

Free Battered Texas Women: Survivor-Advocates Organizing At The Crossroads Of Gendered Violence, Disability, And Incarceration, Cathy Marston Phd

Verbum Incarnatum: An Academic Journal of Social Justice

This article recaps my symposium presentation, where I argue that feminist organizing strategies are central to healing our society and creating restorative justice from my perspective as a survivor of occupational injury, battering, and criminalization for self-defense. This includes the creation of Free Battered Texas Women. We prefer to think of ourselves as survivor-advocates who use a variety of tactics to empower ourselves, incarcerated battered women, and citizens. These strategies include pedagogy; poetry and other written forms; art; and legislative advocacy. I blend this grassroots activism with feminist disability theory, radical feminist theory, feminist ethnography, and feminist criminology.

The Hidden Disability Consensus In The 2020 Campaign, Harold A. Pollack, Samuel R. Bagenstos

Articles

At this writing, the final results of the Iowa caucuses remain unreported. No one yet knows which candidates did well and which did poorly. We do know that health policy is a defining cleavage between left and liberal Democrats this primary season. Much of the press coverage will naturally focus on the implications of this vote for Democrats’ commitment to an incremental public option or a full-throated single-payer plan.

Endrew's Impact On Twice-Exceptional Students, Catherine A. Bell

William & Mary Law Review

Approximately 2 to 5 percent of the American student population qualifies as both gifted and learning disabled. These students, labeled by educators as “twice-exceptional,” generally demonstrate superior cognitive ability, yet also present profound weaknesses in seemingly basic skills. This disconnect in twice-exceptional students’ abilities produces great difficulties for America’s public schools.

Twice-exceptional students, as a result of their disability, can generally qualify for special education services under the federal Individuals with Disabilities Education Improvement Act of 2004 (IDEIA). Once a student qualifies for services under the IDEIA, he is entitled to receive a Free and Appropriate Public Education (FAPE). The …