Disability Law Commons^™

Designing The Architecture For Integrating Accommodation: An Institutionalist Commentary, Susan P. Sturm

Faculty Scholarship

Integrating Accommodation, by Elizabeth F. Emens, reshapes the framework for evaluating workplace accommodations to assure consideration of their third-party benefits. In an ingenious move, the article extends the contact hypothesis, which conventionally emphasizes the attitudinal benefits of integrating diverse groups, to the impact of integrating the accommodations made so that disabled people can effectively participate in the workplace. The article shows how accommodations benefit third parties by improving their workplace conditions and thus have the potential to change attitudes toward disability, accommodation, and the Americans with Disabilities Act (ADA).

Book Review Of Disability In Local And Global Worlds, Michael Ashley Stein

Faculty Publications

No abstract provided.

The Ada Amendments Act Of 2008, Chai R. Feldblum, Kevin Barry, Emily A. Benfer

Georgetown Law Faculty Publications and Other Works

The goal of the Americans with Disabilities Act (ADA) was to create a civil rights law protecting people with disabilities from discrimination on the basis of their disabilities. Disability rights advocates in 1990 were victorious in their efforts to open doors for people with disabilities and to change the country's outlook and acceptance of people with disabilities. These advocates believed that the terms of the ADA, based as they were on Section 504 of the Rehabilitation Act, combined with the legislative history of the ADA, would provide clear instructions to the courts that the ADA was intended to provide broad …

The Domestic Incorporation Of Human Rights Law And The United Nations Convention On The Rights Of Persons With Disabilities, Janet E. Lord, Michael Ashley Stein

Faculty Publications

This Article reviews the processes by which domestic-level transposition of international human rights norms may occur as a consequence of human rights treaty ratification, or other means of incorporation. Specifically, we consider the transformative vision of the Convention on the Rights of Persons with Disabilities (CRPD or Convention) as a vehicle for fostering national-level disability law and policy changes. In doing so, we outline the challenges and opportunities presented by this new phase in disability rights advocacy, and we draw conclusions that bear generally upon human rights practice and scholarship. We contend that the role of human rights in domestic …

Abbott, Aids, And The Ada: Why A Per Se Disability Rule For Hiv/Aids Is Both Just And A Must, Scott Thompson

Publications

HIV/AIDS should be classified as a per se disability under the Americans with Disablities Act. Such a ruling is justified by the plain language of the act itself, legislative history, administrative regulations, and court precedent. Absent such a ruling, individuals with HIV must demonstrate that they have (1) an mental or physical impairment, (2) that substantially limits (3) a major life activity. While most courts to address the applicability of the ADA to individuals with HIV/AIDS have found that such individuals are disabled because HIV impairs the major life activity of reproduction, such an interpretation leaves open the possibility that …

Disabling Prejudice, Michael E. Waterstone, Michael Ashley Stein

Faculty Publications

No abstract provided.

Through The Wild Cathedral Evening: Barrier, Attitudes, Participatory Democracy, Professor Tenbroek, And The Rights Of Persons With Mental Disabilities, Michael L. Perlin

Articles & Chapters

This article is a commentary on Michael Ashley Stein & Janet Lord, Jacobus TenBroek, Participatory Justice, and the UN Convention on the Rights of Persons with Disabilities, - Tex. J. Civ Lib. & Civ. Rts. - (2008) (in press). In it, I seek to expand their analysis of the new UN Convention on the Rights of Persons with Disabilities in an effort to invigorate an area of institutionalized patients rights law that is now nearly forgotten: the rights of such persons to exercise civil rights while institutionalized. I also argue that Prof. Stein and Ms. Lord's paper should lead us …

Simplify You, Classify You: Stigma, Stereotypes And Civil Rights In Disability Classification Systems, Michael L. Perlin

Articles & Chapters

In this paper I consider the question of the extent to which sanism and pretextuality - the factors that contaminate all of mental disability law - do or do not equally contaminate the special education process, and the decision to label certain children as learning disabled. The thesis of this paper is that the process of labeling of children with intellectual disabilities implicates at least five conflicts and clusters of policy issues:

* The need to insure that all children receive adequate education

* The need to insure that the cure is not worse than the illness (that is, that …

Integrating Accommodation, Elizabeth F. Emens

Faculty Scholarship

Courts and agencies interpreting the Americans with Disabilities Act (ADA) generally assume that workplace accommodations benefit individual employees with disabilities and impose costs on employers and, at times, coworkers. This belief reflects a failure to recognize a key feature of ADA accommodations: their benefits to third parties. Numerous accommodations – from ramps to ergonomic furniture to telecommuting initiatives – can create benefits for coworkers, both disabled and nondisabled, as well as for the growing group of employees with impairments that are not limiting enough to constitute disabilities under the ADA. Much attention has been paid to how the integration of …

Jacobus Tenbroek, Participatory Justice, And The Un Convention On The Rights Of Persons With Disabilities, Michael Ashley Stein, Janet E. Lord

Articles

No abstract provided.

Charter Schools And Special Education: Part Of The Solution Or Part Of The Problem?, Rebekah Gleason

University of the District of Columbia Law Review

The Individuals with Disabilities Education Act (IDEA)1 provides each child with a disability the opportunity to receive educational benefit in an appropriate program. The individual needs of the child drive the often resource intensive programs. On the other hand, public charter schools focus on providing more choices for education by aiming to do a better job with less money. Public Charter Schools accountability for progress and fiscal responsibility means that schools focus on doing more with less resources for the school as a whole. Public Charter schools' mission of unique innovative instruction, free from local and state regulations that would …

Who Says You're Disabled? The Role Of Medical Evidence In The Ada Definition Of Disability, Deirdre M. Smith

Faculty Publications

The Americans with Disabilities Act (ADA), enacted by Congress seventeen years ago, offered disabled people a hope of equality and access that has not been fulfilled. ¹ Court decisions halt an overwhelming majority of claims, particularly in the employment context, at the summary judgment stage. ² A key mechanism for fencing out disabled people's claims is the pernicious requirement, based upon the very construction of disability that the ADA's proponents aimed to dispel, that medical evidence is required as a threshold matter to demonstrate that the plaintiff is entitled to seek protection under the statute. ³ The medical evidence requirement …

The Mythic 43 Million Americans With Disabilities, Ruth Colker

William & Mary Law Review

Although Congress stated in its first statutory finding that it intended the Americans with DisabilitiesA ct (ADA) to protect at least 43 million Americans from disability discrimination, the Supreme Court has interpreted this statute so that it covers no more than 13.5 million Americans. More importantly, this Article demonstrates through the use of Census Bureau data that the ADA's employment discrimination provisions have been eviscerated to the point that the ADA protects virtually no Americans who are both disabled and able to work. This Article places that problem in the larger context of the Court undermining Congress's efforts to protect …

Data Note: National Day And Employment Service Trends In Mr/Dd Agencies, Jean E. Winsor, John Butterworth

Data Note Series, Institute for Community Inclusion

In FY2004, 22% of individuals receiving day supports from state mental retardation or developmental disability (MR/DD) agencies participated in integrated employment while 56.5% of individuals were supported in facility-based settings. While the data demonstrate a continued decrease in the percent of people served in facility-based settings (from 60% in 1999 to 57% in 2004), it also suggests a slight decrease in the percent served in integrated employment (from 25.5% in 1999 to 22% in 2004).

Olmstead V. L.C.-Deinstitutionalization And Community Integration: An Awakening Of The Nation's Conscience?, Samantha A. Dipolito

Mercer Law Review

Olmstead v. L.C. is a landmark case that originated in Georgia and has been lauded as the Brown v. Board of Education for the law of disability discrimination. In June 1999 the United States Supreme Court decided Olmstead v. L.C., holding that it is a violation of the Americans with Disabilities Act ("ADA") for states to discriminate against people with disabilities by confining them to institutions when such individuals could live more appropriately in a community-based setting. Yet, nearly eight years after the Olmstead decision and fourteen years after the passage of the ADA, progress in implementing the …

Tools For Inclusion: Minimum Wage Increase: What It Means For People With Disabilities (Updated 2009), David Hoff

Tools for Inclusion Series, Institute for Community Inclusion

This publication provides guidance to individuals with disabilities regarding the increase in minimum wage, with a particular focus on understanding who this increase applies to, the impact of the wage increase on public benefits, and how to deal with issues that may arise with employers.

Institute Brief: Increasing Placement Through Professional Networking, Allison Fleming, Diane Loud

The Institute Brief Series, Institute for Community Inclusion

The national percentage of people of working age with disabilities who are employed continues to hover around 37%, compared with 80% for their peers without disabilities. However, according to the Harris Poll (2004), 67% of people with disabilities who are not currently working would like to be. In the late 1990s, a Presidential Task Force began work on improving the employment rate for adults with disabilities, a national priority that was further supported by the New Freedom Initiative of 2001, creating a bipartisan effort. Despite these initiatives, the rate of employment for people with disabilities has not increased.

Institute Brief: Minimum Wage Increase: A Guide For Disability Service Providers (Updated 2009), David Hoff

The Institute Brief Series, Institute for Community Inclusion

This publication provides guidance to service providers regarding the increase in minimum wage, with a particular focus on assisting consumers with questions and concerns they may have regarding the impact on their public benefits.

Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger

Vanderbilt Law Review

Over the past quarter century, the concept of "adaptive preferences" has played an important role in debates in law, economics, and political philosophy. As Professor Jon Elster has described this psychological phenomenon, "people tend to adjust their aspirations to their possibilities." A number of prominent scholars have argued that the existence of adaptive preferences "raises serious problems for neoclassical economics and for unambivalent enthusiasm for freedom of choice." Because our current preferences are constrained by the opportunities available to us, proponents of adaptive preference theory contend, those preferences may not be the best guide to what is in our interests; …

Involuntary Commitment Of People With Mental Retardation: Ensuring All Of Georgia's Citizens Receive Adequate Procedural Due Process, Laura W. Harper

Mercer Law Review

In the state of Georgia there are approximately three thousand citizens who are confined to segregated living institutions because of their disabilities. Many of these individuals are placed in institutions involuntarily through legal proceedings. Some of these individuals have mental retardation, a condition that occurs during a person's development and results in below normal intellectual functioning. Many disability advocates argue that segregation and institutionalization of people with mental retardation is not needed, although all do not agree. Despite strong advocacy for the rights of people with disabilities, many continue to be institutionalized, often because their families can find no other …

Yes, There Is A Duty To Accommodate Someone "Regarded As" Disabled Under The Ada, Marsha R. Peterson

Nevada Law Journal

No abstract provided.

Reasonably Accommodating The Able Employee Who Is Disabled By Misperception: The Ada's "Regarded As" Prong Gone Awry?, Selma Shelton

Florida A & M University Law Review

No abstract provided.

Angling For A Fair Standard: A Recommendation For A Narrowly Tailored Non-Profit Exemption To The Closed Captioning Requirements, 25 J. Marshall J. Computer & Info. L. 165 (2007), Joshua Pila

UIC John Marshall Journal of Information Technology & Privacy Law

In late 2006, the FCC’s Consumer and Government Affairs Bureau (“CGB”) issued the Anglers Order, providing a wholesale exemption for non-profit entities seeking to avoid the strictures of the Commission’s closed captioning rules. Disability advocates quickly criticized the Anglers Order on administrative law and communications law grounds. This paper avoids administrative law and communications law issues, but instead criticizes the Anglers Order on non-profit law and policy grounds. The paper then recommends and supports a post-application, narrowly-tailored financial test, automatically exempting A) non-profit organizations, with B) less than $25,000 in annual revenue, who C) receive no financial compensation for airing …

The Un Disability Convention: Historic Process, Strong Prospects, And Why The U.S. Should Ratify, Tara J. Melish

Human Rights Brief

No abstract provided.

An Analysis Of The Development And Adoption Of The United Nations Convention Recognizing The Rights Of Individuals With Disabilities: Why The United States Refuses To Sign This Un Convention, Tracy R. Justesen, Troy R. Justesen

Human Rights Brief

No abstract provided.

Equal Access To Post-Secondary Education: The Sisyphean Impact Of Flagging Test Scores Of Persons With Disabilities, Helia Garrido Hull

Faculty Scholarship

In view of the social stigma associated with disabilities, and the inherent costs of providing accommodations to disabled students, the opportunity for bias within the admissions selection process is clear. As a result, the practice of flagging standardized tests has come under increasing scrutiny. The practice of distinguishing test takers having a disability from those who do not runs counter to the social policy of inclusion, and prevents disabled individuals from enjoying the benefits of equal citizenship. Part II of this paper provides a brief overview of the prejudice disabled individuals have endured throughout history, and discusses some early movements …

Equal Access To Post-Secondary Education: The Sisyphean Impact Of Flagging Test Scores Of Persons With Disabilities , Helia Garrido Hull

Cleveland State Law Review

In view of the social stigma associated with disabilities, and the inherent costs of providing accommodations to disabled students, the opportunity for bias within the admissions selection process is clear. As a result, the practice of flagging standardized tests has come under increasing scrutiny. The practice of distinguishing test takers having a disability from those who do not runs counter to the social policy of inclusion, and prevents disabled individuals from enjoying the benefits of equal citizenship. Part II of this paper provides a brief overview of the prejudice disabled individuals have endured throughout history, and discusses some early movements …

The Social Security Administration's New Disability Adjudication Rules: A Significant And Promising Reform, Jeffrey Lubbers

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Actually, We Are Leaving Children Behind: How Changes To Title I Under The No Child Left Behind Act Have Helped Relieve Public Schools Of The Responsibility For Taking Care Of Disadvantaged Students' Needs, Emily F. Suski

Faculty Publications By Year

This article calls attention to the changes to Title I under NCLB that do a disservice to disadvantaged students. Under NCLB, Title I has shifted from its original focus on meeting the needs of disadvantaged students. These changes have removed almost any responsibility at all for taking care of the needs of disadvantaged students so they can learn in school, something this article terms ‘dynamic caretaking.’ It calls for revising Title I to require this kinds of dynamic caretaking in order to improve disadvantaged students’ access to education in public schools.

Data Note: Ssi Recipients With Disabilities Who Work And Participation In 1619b, Brooke Dennee-Sommers, Frank A. Smith

Data Note Series, Institute for Community Inclusion

Supplemental Security Income (SSI) is a federally funded program that provides cash assistance for basic needs. Individuals with a low-income who are over the age of 65, blind, or have a disability are eligible for assistance. SSI beneficiaries typically also receive health insurance coverage through Medicaid. Losing Medicaid benefits can be of concern for SSI recipients with disabilities who desire to work, or are currently working. Section 1619b of the Social Security Act allows individuals to work and continue to receive Medicaid assistance when their earnings are too high to qualify for SSI cash payments as long as they meet …