Disability Law Commons^™

Fixing Disability Courts, D. Randall Frye

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

California Year In Review: 2013 Special Education Alj Decisions, Ruth Colker

Journal of the National Association of Administrative Law Judiciary

This article reviews 74 special education cases decided by California ALJs between January 1, 2013 and December 11, 2013. The author concludes that the ALJs provided stingy relief even when students prevailed, there was often unsuccessful litigation on behalf of a student following the termination of a consent decree or court order, many of the cases reflected negative attitudes towards the mothers of the student, and school districts often preferred more restrictive placements than the parent/student. Not surprisingly, students faced very unfavorable outcomes when they were not represented by a lawyer.

Painful Disparities, Painful Realities, Amanda C. Pustilnik

Faculty Scholarship

Legal doctrines and decisional norms treat chronic claims pain differently than other kinds of disability or damages claims because of bias and confusion about whether chronic pain is real. This is law’s painful disparity. Now, breakthrough neuroimaging can make pain visible, shedding light on these mysterious ills. Neuroimaging shows these conditions are, as sufferers have known all along, painfully real. This Article is about where law ought to change because of innovations in structural and functional imaging of the brain in pain. It describes cutting-edge scientific developments and the impact they should make on evidence law and disability law, and, …

Reasonable Accommodations On The Bar Exam: Leveling The Playing Field Or Providing An Unfair Advantage?, Amanda M. Foster

Faculty Scholarship

If you ask law students what they think about examination accommodations provided to students with disabilities, including learning disabilities, most students will tell you that it is unfair that some students get more time to take an examination. The misconception that accommodations provide an unfair advantage may stem from the fact that not all students understand the Americans with Disabilities Act ("ADA"), its purpose, and the reasons why individuals receive such accommodations. In fact, the ADA has applications beyond the employment context. Specifically, the ADA ensures that students with disabilities who graduate "from medical school, law school, and other professional …

In Defense Of Idea Due Process, Mark Weber

College of Law Faculty

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and …

An Eye Toward Effective Enforcement: A Technical-Comparative Approach To The Drafting Negotiations, Tara J. Melish

Contributions to Books

Published as Chapter 5 in Human Rights and Disability Advocacy, Maya Sabatello & Marianne Schulze, eds.

The unprecedented level of civil society participation that took place in the drafting of the U.N. Convention on the Rights of Persons with Disabilities (CRPD) constitutes a major key to its success -- laying a solid foundation for the much longer and harder process of implementation ahead. This piece addresses how one civil society organization -- Disability Rights International (DRI) -- approached the negotiation process. Part I explains the strategic approach DRI adopted, highlighting its methodology, the guiding principles it embraced, and the resulting …

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

Scholarly Works

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, …

Sexual Assault And The Meaning Of Power And Authority For Women With Mental Disabilities, Janine Benedet, Isabel Grant

All Faculty Publications

The sexual assault of persons with mental disabilities (also described as cognitive, intellectual and developmental disabilities) occurs at alarmingly high rates worldwide. These assaults are a form of gender-based violence intersecting with discrimination based on disability. Our research on the treatment of such cases in the Canadian criminal justice system demonstrates the systemic barriers these victims face at the level of both substantive legal doctrine and trial procedure. Relying on feminist legal theory and disability theory, we argue in this paper that abuses of trust and power underlie most sexual assaults of women with mental disabilities. We argue that existing …

Should States Ban The Use Of Non-Positive Interventions In Special Education? Re-Examining Positive Behavior Supports Under The Idea, Elizabeth Shaver

Akron Law Faculty Publications

In the 1980s and 1990s, behavior analysts vigorously debated ethical concerns about the use of certain behavioral interventions to address severe behavior of disabled children. In 1997, while that debate was still ongoing, the Individuals with Disabilities Education Act (IDEA) was amended to require educators to consider the use of “positive behavioral interventions and supports,” among other strategies, to address problem behavior that impedes a disabled child’s learning. Since 1997, the “positive behavioral interventions and supports” framework has shifted focus, but IDEA’s language essentially has stayed the same. In addition, some states have enacted poorly-worded statutes or regulations in order …

The Disabled And Work: Some Problems Raised And Highlighted By The Americans With Disabilities Act Of 1990, Peter M. Panken

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Beyond The Threshold: Wincing At Social Security's Process Of Evaluating Pain , David J. Agatstein

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Alcoholism As A Disability Under The Social Security Act - An Analysis Of The History, And Proposals For Change, Joyce Krutick Barlow

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

A Reflection On The Future Of Administrative Adjudication As Seen From An Examination Of The Status Of Social Security Disability Adjudications, Delois Toins Leapheart

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Was The Third Circuit Off Base In Failing To Accord Chevron Deference To Social Security Administration's Interpretation Of The Statute's Definition Of Disability?, Victor G. Rosenblum

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Paternalistic Discrimination: The Chevron Deference Misplaced In Chevron U.S.A., Inc. V. Echazabal, Tricia M. Patterson

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Have The Amendments To The Individuals With Disabilities Education Act Razed Rowley And Raised The Substantive Standard For "Free Appropriate Public Education?", Perry A. Zirkel

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

School Bullying Victimization As An Educational Disability, Douglas E. Abrams

Faculty Publications

Parts I and II of this essay urge school authorities, parents, and other concerned citizens to perceive bullying victimization as a disability that burdens targeted students. Since 1975, the federal Individuals with Disabilities Education Act (IDEA) has guaranteed “full educational opportunity to all children with disabilities” in every state. The IDEA reaches both congenital disabilities and disabilities that, like bullying victimization, stem from events or circumstances unrelated to biology or birth. To set the context for perceiving bullying victimization as an educational disability, Part I describes the public schools' central role in protecting bullied students, and then briefly discusses the …

"All Areas Of Suspected Disability", Mark Weber

College of Law Faculty

The Individuals with Disabilities Education Act (IDEA) requires school districts to assess children “in all areas of suspected disability.” It further provides that each child’s individualized education program (IEP) must contain measurable annual goals designed to “meet each of the child’s . . . educational needs that result from the child’s disability,” and a statement of special education and related services that will be provided for the child “to advance appropriately toward attaining annual goals.” Courts have strictly enforced these requirements in the last several years, remedying violations of IDEA when school districts fail to assess in all areas of …

"All Areas Of Suspected Disability", Mark Weber

College of Law Faculty

The Individuals with Disabilities Education Act (IDEA) requires school districts to assess children “in all areas of suspected disability.” It further provides that each child’s individualized education program (IEP) must contain measurable annual goals designed to “meet each of the child’s . . . educational needs that result from the child’s disability,” and a statement of special education and related services that will be provided for the child “to advance appropriately toward attaining annual goals.” Courts have strictly enforced these requirements in the last several years, remedying violations of IDEA when school districts fail to assess in all areas of …

Identifying (With) Disability: Using Film To Teach Employment Discrimination, Elizabeth Pendo

All Faculty Scholarship

Building on a prior article about using film to teach health law, this Essay is intended to share my experience using the film Philadelphia as a method of enhancing coverage and discussion of the employment provisions of the Americans with Disabilities Act (ADA), and to provide an opportunity for recognition of, and identification with, the experiences of people with disabilities.

Data Note: State Intellectual And Developmental Disability Agencies’ Service Trends, Jean Winsor

Data Note Series, Institute for Community Inclusion

In FY2011, an estimated 570,406 individuals received day or employment supports from state IDD program agencies. This number grew from 458,650 in FY1999. The estimated number of individuals in integrated employment services increased from 108,296 in FY1999 to 110,295 in FY2011. State investment continues to emphasize facility-based and non-work services, rather than integrated employment services. Figure 1 shows the trends in the percentage of people served in integrated employment and facilitybased and non-work settings between FY2004 and FY2011.

Protecting Rights And Building Capacities: Challenges To Global Mental Health Policy In Light Of The Convention On The Rights Of Persons With Disabilities, Sheila Wildeman

Articles, Book Chapters, & Popular Press

The World Health Organization (WHO) has in the last decade identified mental health as a priority for global health promotion and international development, to be targeted through promulgation of evidence-based medical practices, health systems reform, and respect for human rights. Yet these overlapping strategies are marked by tensions as the historical primacy of expert-led initiatives is increasingly subject to challenge by new social movements – in particular, disabled persons’ organizations (DPOs). These tensions come into focus upon situating the WHO’s contributions to the analysis of global mental health in light of the negotiation and early stages of implementation of the …

Should Congress Create A Special Category Of Ssa Aljs, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Medicating The Ada - Sutton V. United Airlines, Inc.: Considering Mitigating Measures To Define Disability, Ian D. Thompson

Pepperdine Law Review

No abstract provided.

Bullying Victimization As A Disability In Public Elementary And Secondary Education, Douglas E. Abrams

Faculty Publications

This article discusses two reasons why likening bullying victimization to an educational disability makes sense. First, face-to-face bullying and cyberbullying impose on student victims the sort of educational deprivation that the federal Individuals with Disabilities Education Act (IDEA) addresses in the disabilities arena. Second, today’s belated public sensitivity to school bullying victims resembles the belated public sensitivity to students with disabilities that led to passage of the IDEA in 1975.

I'M So Lonesome I Could Cry ... But Could I Sue?: Whether 'Interacting With Others' Is A Major Life Activity Under The Ada, Bryan P. Stephenson

Pepperdine Law Review

No abstract provided.

Data Note: State Intellectual And Developmental Disability Agencies’ Service Trends, Jean E. Winsor

Data Note Series, Institute for Community Inclusion

In FY2010, an estimated 566,188 individuals received day or employment supports from state intellectual and developmental disability (IDD) agencies. This number grew from 458,650 in FY1999, a 23.4 percent increase. The estimated number of individuals supported in integrated employment services increased from 108,296 in FY1999 to 113,937 in FY2010, a 5.2% increase. State investment in supports continues to emphasize facility-based and non-work services rather than integrated employment services.

Why Context Matters: Defining Service Animals Under Federal Law, Rebecca J. Huss

Pepperdine Law Review

This Article analyzes the differing definitions of service animals under federal law as interpreted by three separate agencies. The regulations and case law interpreting the issue under the Americans with Disabilities Act, the Fair Housing Act, and the Air Carrier Access Act illustrate the need for further clarification in order to ensure that individuals with disabilities are granted the full protection of the law.

Gray Matters: Autism, Impairment, And The End Of Binaries, Kevin Barry

San Diego Law Review

First diagnosed by psychiatrist Leo Kanner in 1943, autism has exploded into the public consciousness in recent years. From science to science fiction, academia to popular culture, autism has captured the world's attention and imagination. Autism has also ignited a fierce debate among stakeholders who seek to define its essence. Many parents of autistic children regard autism as a scourge and press for a cure. The "neurodiversity movement," comprised mostly of autistic adults, regards autism as a different way of being worthy of respect and even celebration. The autism war is well underway, and given autism's swelling ranks and proposed …

A Female Disease: The Unintentional Gendering Of Fibromyalgia Social Security Claims, Dara Purvis

Faculty Scholarship

Social Security disability claims are not supposed to be decided based on the gender of the applicant. Reliance on the apparently neutral mechanism of clinical medical evidence, however, has a disproportionate impact on women bringing disability claims based on fibromyalgia. Recognizing and identifying disability has been delegated by Congress and the Social Security Administration almost entirely to physicians, based upon a misguided and mistaken belief that clinical medical evidence evaluated by a trained physician will answer with certainty whether an individual claimant is capable of working. Fibromyalgia, a diffuse syndrome characterized by excess pain that is overwhelmingly diagnosed in women …