Disability Law Commons^™

How Increased Legal Representation Can Close The Gap In Special Education Discrepancies, Todd Carney

Touro Law Review

This piece looks at how the existing education regime has led to disparities between white and minority students. The paper finds that the disparity gets even worse when special education is factored in. The reason so many low-income and minority students with disabilities receive such a poor education is that they do not have the proper legal representation to demand the rights that they are guaran- teed under US law. This paper looks at how low-income and minority families have been cheated out of proper legal representation in other areas and how receiving the necessary legal representation can lead to …

Qualified Does Not Mean Over Qualified: The Ada’S Accommodation Of Last Resort Should Not Be A Competition!, Dana Ortiz-Tulla

Touro Law Review

No abstract provided.

Special Education's Lessons For School Funding Litigation, Spencer C. Weiler, Scott R. Bauries

Law Faculty Scholarly Articles

In this Article, we make the case that the currently dominant approaches to challenging the constitutionality of a state’s funding efforts have proven ineffective. Instead, future lawsuits designed to bring about lasting funding reform should be informed by the successes within the field of special education by asking courts to examine individual-rights claims based on one student, or several similarly-situated individual students, petitioning the court for relief tailored to that student or class. Such an approach to school finance litigation could result in a decision that limits relief to just one application of the entire funding formula, and the remedy …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Becoming Visible, Jennifer Bennett Shinall

Oklahoma Law Review

No abstract provided.

For All Who Have Borne The Battle: A Wish List For The Incoming Secretary Of The United States Department Of Veterans Affairs, Benjamin Pomerance

Touro Law Review

No abstract provided.

Rights And Obligations: Commemorating The 30th Anniversary Of The Americans With Disabilities Act Of 1990, Sharon Shapiro-Lacks

Touro Law Review

No abstract provided.

“I See What Is Right And Approve, But I Do What Is Wrong”: Psychopathy And Punishment In The Context Of Racial Bias In The Age Of Neuroimaging, Alison Lynch, Michael L. Perlin

Articles & Chapters

Criminology research has devoted significant attention to individuals diagnosed either with antisocial personality disorder (ASPD) or psychopathy. While in the past, the two terms were used somewhat interchangeably, researchers today are starting to see that the two terms in fact represent two very different personality types and offending patterns. In this article, we examine this development from a legal perspective, considering what this might mean in terms of punishment for these two personality types based on the different characteristics they display in their actual offenses and their responses to punishment and rehabilitation. Specifically, we will focus on how the use …

"Man Is Opposed To Fair Play": An Empirical Analysis Of How The Fifth Circuit Has Failed To Take Seriously Atkins V. Virginia, Michael L. Perlin, Talia Roitberg Harmon, Sarah Wetzel

Articles & Chapters

In 2002, for the first time, in Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court found that it violated the Eighth Amendment to subject persons with intellectual disabilities to the death penalty. Since that time, it has returned to this question multiple times, clarifying that inquiries into a defendant’s intellectual disability (for purposes of determining whether he is potentially subject to the death penalty) cannot be limited to a bare numerical “reading” of an IQ score, and that state rules based on superseded medical standards created an unacceptable risk that a person with intellectual disabilities could …

Special Education No Man's Land, Adrián E. Alvarez

St. John's Law Review

(Excerpt)

Since 2014, unaccompanied immigrant children have migrated to the United States in staggering numbers. The vast majority come from the Northern Triangle countries of Central America—El Salvador, Guatemala, and Honduras—and many are fleeing some of the highest homicide rates in the world. Immigration lawyers have highlighted many problems with the federal regime that cares for these children before they are released to family members or other adults living in the United States while their immigration cases move forward. Yet there is one group of unaccompanied minors that is not even on the radar of many advocates: unaccompanied children with …

Substance Use Disorder Discrimination And The Cares Act: Using Disability Law To Inform Part 2 Rulemaking, Kelly K. Dineen, Elizabeth Pendo

Articles

Substance use disorder (SUD) is a chronic health condition—like people with other chronic health conditions, people with SUDs experience periods of remission and periods of exacerbation or recurrence. Unlike people with most other chronic conditions, people with SUDs may be more likely to garner law enforcement attention than medical attention during a recurrence. They are also chronically disadvantaged by pervasive social stigma, discrimination, and structural inequities. The COVID-19 pandemic has had devastating consequences for people with SUDs, who are at higher risk for both contracting the SARS-CoV-19 virus and experiencing poorer outcomes. Meanwhile, there are early indications that pandemic conditions …

The Ada Constrained: How Federal Courts Dilute The Reach Of The Ada In Prison Cases, Prianka Nair

Faculty Scholarship

No abstract provided.

Website Accessibility Lawsuits: Using Online Dispute Resolution To Provide More Efficient Outcomes Within The Second Circuit, Zachary Kriesberg

Cardozo Journal of Conflict Resolution

No abstract provided.

Editor, Ethical Challenges In Discharge Planning: Stories From Patients, Elizabeth Pendo

All Faculty Scholarship

This symposium includes twelve personal narratives from patients and their caregivers who have navigated challenges in planning for discharge from the hospital and transition to care at home, a rehabilitation facility, long-term care facility, or hospice. Three commentaries on these narratives are also included, authored by experts and scholars in the fields of medicine, bioethics, and health policy with particular interest in vulnerable populations. The goal of this symposium is to call attention to the experiences of patients during transitions in care and to enrich discussions of ethical issues in discharge planning.

Covid-19 Employee Health Checks, Remote Work, And Disability Law, Elizabeth Pendo

All Faculty Scholarship

The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities, about 61 million individuals in the U.S. The law’s protections in the workplace are especially important during COVID-19, which has worsened pre-existing disparities experienced by people with disabilities. The ADA also applies to new strategies to reduce the risk of COVID-19 infection in the workplace. This Chapter will focus on two strategies that impact individuals with and without disabilities – employee health screening, testing and vaccination policies, and new or expanded remote work programs.

Attitudes Toward Withholding Antibiotics From People With Dementia Lacking Decisional Capacity: Findings From A Survey Of Canadian Stakeholders, Gina Bravo, Lieve Van Den Block, Jocelyn Downie, Marcel Arcand, Lise Trottier

Articles, Book Chapters, & Popular Press

Background

Healthcare professionals and surrogate decision-makers often face the difficult decision of whether to initiate or withhold antibiotics from people with dementia who have developed a life-threatening infection after losing decisional capacity.

Methods

We conducted a vignette-based survey among 1050 Quebec stakeholders (senior citizens, family caregivers, nurses and physicians; response rate 49.4%) to (1) assess their attitudes toward withholding antibiotics from people with dementia lacking decisional capacity; (2) compare attitudes between dementia stages and stakeholder groups; and (3) investigate other correlates of attitudes, including support for continuous deep sedation (CDS) and medical assistance in dying (MAID). The vignettes feature a …

Social Determinants Of Health And Slippery Slopes In Assisted Dying Debates: Lessons From Canada, Jocelyn Downie, Udo Schuklenk

Articles, Book Chapters, & Popular Press

The question of whether problems with the social determinants of health that might impact decision-making justify denying eligibility for assisted dying has recently come to the fore in debates about the legalization of assisted dying. For example, it was central to critiques of the 2021 amendments made to Canada’s assisted dying law. The question of whether changes to a country’s assisted dying legislation lead to descents down slippery slopes has also come to the fore—as it does any time a jurisdiction changes its laws. We explore these two questions through the lens of Canada’s experience both to inform Canada’s ongoing …

Adult Capacity And Decision Making Act Review, Sheila Wildeman

Reports & Public Policy Documents

The Adult Capacity and Decision-making Act is for adults who can’t make some or all decisions for themselves because of a learning disability, mental illness, brain injury or other reasons. This law respects the rights of adults to make their own decisions, while allowing someone else to help make important decisions for them when they can’t.

You can read the results of the review in the Report on the Review of the Adult Capacity and Decision-making Act.

In 2021, government consulted with Nova Scotians about the Adult Capacity and Decision-making Act. The results of the consultation informed the review. You …

Disability Admin: The Invisible Costs Of Being Disabled, Elizabeth F. Emens

Faculty Scholarship

This Essay comes in five parts. After this Introduction, Part I begins by briefly sketching the concept of life admin and setting out the understanding of disability that informs the ADA. Part II demonstrates the special burdens that admin places on people with disabilities and uses this argument to refine the social model of disability and clarify its implications. This theoretical insight lays the groundwork for Part III to fill a gap in the analysis of “reasonable” accommodation under Title I. This Part shows that, although courts have set out a cost-benefit analysis as the framework for determining the “reasonableness” …

Copyright And Disability, Blake E. Reid

Publications

A vast array of copyrighted works—books, video programming, software, podcasts, video games, and more—remain inaccessible to people with disabilities. International efforts to adopt limitations and exceptions to copyright law that permit third parties to create and distribute accessible versions of books for people with print disabilities have drawn some attention to the role that copyright law plays in inhibiting the accessibility of copyrighted works. However, copyright scholars have not meaningfully engaged with the role that copyright law plays in the broader tangle of disability rights.

The New Eugenics, Samuel R. Bagenstos

Articles

During the first third of the Twentieth Century, the eugenics movement played a powerful role in the politics, law, and culture of the United States. The fear of “the menace of the feebleminded,” the notion that those with supposedly poor genes “sap the strength of the State,” and other similar ideas drove the enthusiastic implementation of the practices of excluding disabled individuals from the country, incarcerating them in ostensibly beneficent institutions, and sterilizing them. By the 1930s, with the rise of Adolf Hitler in Germany, eugenic ideas had begun to be discredited in American public discourse. And after the Holocaust, …

Getting It: The Ada After Thirty Years, Elizabeth F. Emens

Faculty Scholarship

On the thirtieth anniversary of the Americans with Disabilities Act (ADA), this essay examines the vital role that attitudes have played — and will play — in the success of this pathbreaking civil rights law. Drawing on the legacy of the late disability philosopher and bioethicist Adrienne Asch, the essay argues that the law alone cannot bring about the change that’s needed in the United States to realize the ADA’s promise. Attitudes to disability need to change. More people need to “get it” with regard to disability. The essay puts forward an updated account of what it means to get …

Disability Discrimination In Higher Education: The Enabling Spirit Of American Disability Legislation In Conflict With Judicial Interpretation, Travis Murray

Student Scholarship

Disabled individuals have historically been treated as second-class citizens in the United States. While improvements have certainly been made over time, disabled individuals still face significant barriers to enjoying full and equal participation in society. Higher education is one aspect of American society still lacking proportional representation of the disabled community. To try and understand why disabled Americans fail to thrive in higher education at rates approaching those of non-disabled individuals, this paper will examine the following: how the history of disability discrimination in America influenced passage of powerful anti-discrimination legislation; how American courts have generally interpreted that legislation to …

The Pro Bono Collaborative Project Spotlight: Can You Help? December 2020, Roger Williams University School Of Law

Pro Bono Collaborative Staff Publications

No abstract provided.

Perceptions Of Special Education Supports By School Administrators, Eric P. Oxford

Electronic Theses and Dissertations

This research study analyzed the perceptions of special education supports by school administrators. Specifically, this research discussed comparative findings of perceptions of special education supports between building principals and building-based special education team chairpersons in one Massachusetts public school district. The findings are grounded in the district’s inclusive philosophy and its capability to ensure that all students are provided educational opportunities in the least restrictive educational environment. The problem studied was that many students with disabilities who are unable to find academic success within an inclusive academic environment are typically transitioned into a more restrictive—or substantially separate—alternative education setting. It …

Telehealth And Telework Accessibility In A Pandemic-Induced Virtual World, Blake Reid, Christian Vogler, Zainab Alkebsi

University of Colorado Law Review Forum

This short essay explores one dimension of disability law’s COVID-related “frailty”: how the pandemic has undermined equal access to employment and healthcare for Americans who are deaf or hard of hearing as healthcare and employment migrate toward telehealth and telework activities. This essay’s authors—a clinical law professor; a computer scientist whose research focuses on accessible technology; and a deaf policy attorney for the nation’s premier civil rights organization of, by, and for deaf and hard of hearing individuals in the United States—have collaborated over the past months on detailed advocacy documents aimed at helping deaf and hard of hearing patients …

Towards An Urban Disability Agenda, Samuel R. Bagenstos

Articles

The overwhelming majority of Americans with disabilities live in metropolitan areas. Yet those areas continue to contain significant barriers that keep disabled people from fully participating in city life. Although political and social debate has periodically turned its attention to urban issues or problems — or even the so-called “urban crisis” — during the past several decades, it has too rarely attended to the issues of disability access. When political debate has focused on disability issues, it has tended to address them in a nationally uniform way, without paying attention to the particular concerns of disabled people in cities. Even …

Shortening The Leash: Emotional Support Animals Under The Fair Housing Act, Katie Basalla

University of Cincinnati Law Review

No abstract provided.

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

Reimagining Disability: The Screening Of Donor Gametes And Embryos In Ivf, Isabel Karpin, Roxanne Mykitiuk

Articles & Book Chapters

In this article,we examine how disability is figured in the imaginaries that are given shape by the reproductive projects and parental desires facilitated by the bio-medical techniques and practices of assisted reproductive technologies (ARTs) that involve selection and screening for disability. We investigate how some users of ARTs understand and deploy these imaginaries in ways that are both concordant with and resistant to the understanding of disability embedded within the broader sociotechnical and social imaginaries. It is through users’ deliberations, choices, responses, and expectations that we come to understand how these imaginaries are perpetuated and resisted, and how maintaining them …