Disability Law Commons^™

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 …

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 …

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 …

Reflections On Jewish And American Disability Law And On The God Who Makes All Things Good, Randy Lee

Touro Law Review

No abstract provided.

Book Review Essay: Invisibility, Inclusivity & Fraternity: Was Yosef On The Spectrum? Understanding Joseph Through Torah, Midrash And Classical Jewish Sources (Samuel J. Levine, Urim Publications (2019)), Stephen A. Rosenbaum

Touro Law Review

No abstract provided.

Enabling The Best Interests Factors, Adrián E. Alvarez

Faculty Publications

(Excerpt)

For over a century, state courts and other child welfare agencies in the United States have been applying the “best interests of the child standard” to all decision-making concerning children. The standard is also enshrined within the UN Convention on the Rights of the Child (CRC)—a treaty that every nation in the world has ratified except the United States. Notwithstanding its widespread adoption in family law, the standard is, with only a few exceptions, noticeably missing from American laws and policies pertaining to children in the immigration system.

There is a rich literature arguing that children should enjoy special …

Beyond The Marrakesh Vip Treaty: Typology Of Copyright Access-Enabling Provisions For Persons With Disabilities, Caroline B. Ncube, Blake E. Reid, Desmond O. Oriakhogba

Publications

This paper builds upon the evidence drawn from a scoping study on access to copyright works by persons with disabilities. It identifies and discusses specific access‐enabling technologies for persons with aural, cognitive, physical, and visual disabilities and how they are affected by the exercise of exclusive rights. It shows how, and the extent to which states' ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (Marrakesh Treaty) has enabled the making of accessible format of copyright works for persons with disabilities. To this end, the paper examines …

The Trump Administration’S Social Security Rules Will Harm Innovation In The Assistive Technology Industry And People With Disabilities, Christopher Buccafusco, Mariel Talmage

Cardozo Law Review de•novo

The following essay was adapted from the authors’ comment submitted in opposition to the Trump Administration’s Proposed Rules Regarding the Frequency and Notice of Continuing Disability Reviews.

The Art Of Access: Innovative Protests Of An Inaccessible City, Elizabeth F. Emens

Faculty Scholarship

This Essay considers inaccessible New York City through the lens of artistic production. The landscape of disability art and protest is vast and wildly diverse. This Essay proposes to capture one slice of this array. From Ellis Avery’s Zodiac of NYC transit elevators, to Shannon Finnegan’s Anti-Stairs Club Lounge at the Vessel in Hudson Yards, to Park McArthur’s work exhibiting the ramps that provided her access to galleries showing her work – these and other creative endeavors offer a unique way in to understanding the problems and potential of inaccessible cities. Legal actions have challenged some of the specific sites …

Resources For Special Education Advocacy, Virginia A. Neisler

Law Librarian Scholarship

The CDC reports that approximately 1 in 6 children in the United States has a developmental disability.1 Certain types of developmental disabilities are becoming rapidly more prevalent, with autism spectrum disorder affecting 1 in 59 children in 2014 (as compared to 1 in 150 as recently as 2002).2 From 1997 to 2008, all incidences of developmental disabilities in children in the United States increased in prevalence by more than 17 percent.3 This represents a significant part of our population and in recent decades has given rise to a complex system of legal rights and protections for developmentally disabled children that …

Battling Implicit Bias In The Idea To Advocate For African American Students With Disabilities, Dustin Rynders

Touro Law Review

No abstract provided.

Endrew F. Clairvoyance, Mark Weber

College of Law Faculty

The Second Circuit Court of Appeals has declared that “Prior decisions of this Court are consistent with the Supreme Court’s decision in Endrew F.,” the 2017 Supreme Court decision interpreting the Individuals with Disabilities Education Act obligation to furnish students with disabilities free, appropriate public education. This Essay considers whether that statement is accurate, and concludes that while some of the past Second Circuit decisions fit comfortably with Endrew F. ex rel. Joseph F. v. Douglas County School District RE-1, others do not. The Essay submits that the court of appeals should confess a lack of clairvoyance in its earlier …

Transposing The Convention On The Rights Of Persons With Disabilities In Africa: The Role Of Disabled Peoples' Organisations, Faraaz Mahomed, Janet E. Lord, Michael Ashley Stein

Book Chapters

No abstract provided.

State Employment First Policies #3: Investing In Training And Technical Assistance To Build Capacity In Integrated Employment, Jennifer Bose, Jean Winsor, Jaimie Ciulla Timmons, Thinkwork! At The Institute For Community Inclusion At Umass Boston

ThinkWork! Publications

For more than a decade, many states have been developing policies that prioritize integrated employment as the first choice and preferred outcome for individuals with intellectual/developmental disabilities (IDD). Collectively, these actions have been united under the framework of Employment First, a commitment by states and state IDD agencies to the propositions that all individuals with IDD (a) are capable of performing work in typical integrated employment settings, (b) should receive as a matter of state policy employment-related services and supports as a priority over other facility-based and non-work day services, and (c) should be paid at minimum or prevailing wage …

The Pro Bono Collaborative Project Spotlight: Rwu Law Alums Providing Pro Bono Through The Pbc (September 20, 2018), Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.

The Fallacy Of Choice: The Destructive Effect Of School Vouchers On Students With Disabilities, Ian Farrell, Cheslea Marx

Sturm College of Law: Faculty Scholarship

This Article addresses the impact of school voucher programs on students with disabilities. We show that for children with disabilities, the price of admission into so-called “school choice” programs is so high that it is effectively no real choice at all. School voucher programs require students with disabilities to sign away their robust federal rights and protections in the public school system. Under the Individuals with Disabilities Education Act (IDEA)—the preeminent legislative safeguard for students with disabilities—these rights include the right to a “free and appropriate public education” delivered through an “individualized education plan.” By giving up these protections, children …

A Call For Ncaa Adapted Sports Championships: Following The Eastern College Athletic Conference’S Lead To Nationalize Collegiate Athletic Opportunities For Student-Athletes With Disabilities, Dayle Marie Comerford

Marquette Sports Law Review

None

Lessons Learned From Texas' Special Education Cap, Raj Salhotra

Marquette Benefits and Social Welfare Law Review

No abstract provided.

Cumulative Hardship, Nicole Buonocore Porter

Faculty Publications

Although there are plenty of cases that mention the undue-hardship provision under the ADA, there are relatively few cases where the undue-hardship provision is outcome-determinative or even discussed in depth. To complicate matters further, the Author of this Article could find no case where the court discussed the issue of cumulative hardship in the ADA context. This Article explores this issue and arrives at possible solutions for how this issue should be resolved when it arises.

This Article proceeds in four parts. Part I gives an introduction to the ADA and the undue-hardship provision. Part 1H gets to the heart …

Protecting Civilians With Disabilities In Conflicts, Janet E. Lord, Gerard Quinn, Shantha Rau Barriga, Catalina Devandas

All Faculty Scholarship

No abstract provided.

Disability, Universalism, Social Rights, And Citizenship, Samuel R. Bagenstos

Articles

The 2016 election has had significant consequences for American social welfare policy. Some of these consequences are direct. By giving unified control of the federal government to the Republican Party for the first time in a decade, the election has potentially empowered conservatives to ram through a bill to repeal the Affordable Care Act—the landmark “Obamacare” law that marked the most significant expansion of the social welfare state since the 1960s. Other consequences are more indirect. Both the election result itself, and Republicans’ actions since, have spurred a renewed debate within the left-liberal coalition regarding the politics of social welfare …

Educational Equality For Children With Disabilities: The 2016 Term Cases, Samuel R. Bagenstos

Book Chapters

One of the most longstanding debates in educational policy pits the goal of equality against the goal of adequacy: Should we aim to guarantee that all children receive an equal education? Or simply that they all receive an adequate education? The debate is vexing in part because there are many ways to specify “equality” and “adequacy.” Are we talking about equality of inputs (which inputs?), equality of opportunity (to achieve what?), or equality of results (which results?)? Douglas Rae and his colleagues famously argued that there are no fewer than 108 structurally distinct conceptions of equality. And how do we …

Prisoners With Disabilities, Margo Schlanger

Book Chapters

A majority of American prisoners have at least one disability. So how jails and prisons deal with those prisoners’ needs is central to institutional safety and humaneness, and to reentry success or failure. In this chapter, I explain what current law requires of prison and jail officials, focusing on statutory and constitutional law mandating non-discrimination, accommodation, integration, and treatment. Jails and prisons have been very slow to learn the most general lesson of these strictures, which is that officials must individualize their assessment of and response to prisoners with disabilities. In addition, I look past current law to additional policies …

A Primer On Able Accounts, Christopher T. Mcgee, G. Alisa Ferguson

University of Richmond Law Review

No abstract provided.

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 …

An Empirical Assessment Of Georgia’S Beyond A Reasonable Doubt Standard To Determine Intellectual Disability In Capital Cases, Lauren Sudeall Lucas

Georgia State University Law Review

In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty. More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability. Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants …

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.

Child Rights Trending: Accommodating Children With Disabilities In The Global Human Rights Framework And Us Foreign Policy, Janet E. Lord

Articles

This Article proceeds in three parts. Following the introduction, Part I analyzes the concept of child rights as applied to children with disabilities in instruments antecedent to the CRPD. It goes on to examine the treatment of children with disabilities in the CRC and in the text of the CRPD. In so doing, it exposes the significant conceptual shift in how children with disabilities are characterized as agents and holders of rights in the CRPD, in contrast to prior articulations. Part II explains how this new framework is used to expose and address major human rights issues that face children …

Expansion Of Employee Wellness Programs Under Ppaca Creates Additional Barriers To Healthcare Insurance For Individuals With Disabilities, Amy B. Cheng

Journal of Law and Health

There are many barriers to healthcare for the general population that has been documented throughout the years, with one particularly affected group being individuals with disabilities. One identified healthcare barrier for individuals with disabilities is the inability to gain access to the healthcare system through health insurance. While many attempts have been made to resolve this issue, serious problems have yet to be resolved. The Patient Protection Affordable Care Act (PPACA) attempted to solve the issue by expanding Health Insurance Portability and Accountability Act of 1996’s (HIPAA) current regulations on employee wellness programs. The relevant regulations govern employee wellness programs …

Anti-Incarcerative Remedies For Illegal Conditions Of Confinement, Margo Schlanger

University of Miami Race & Social Justice Law Review

No abstract provided.