Disability Law Commons^™

Disability Rights And Inclusion: A Multidisciplinary Conference, Samuel J. Levine

Touro Law Review

No abstract provided.

Special Issues Facing People Who Use Drugs And How Sensitive Lawyers Can Help: Three Case Studies From Rutgers Law Associate, Andrew J. Rothman

Touro Law Review

No abstract provided.

Love In The Disabilities Paradigm: A Normal Person’S Need For Healing, Randy Lee

Touro Law Review

We function in a disabilities paradigm where people are broken in a multitude of ways and where, having recognized their brokenness, we seek in our benevolence to remake these broken people in our own image. There is, however, another paradigm in which one might live, a paradigm of love. In that paradigm, people are not divided between “normal” and “broken” but live together on a common spectrum of light. In this paradigm, people are not so much “disabled” as they are waiting to be believed in, and in this paradigm, the greatest need for healing is in the capacity to …

Fundamental Alteration Limits On Disability Rights: Spread, Specifications, And The Quality Of Education, Adam M. Samaha

Touro Law Review

Fundamental alteration limits are now remarkably prevalent in disability rights law, even if the underpinnings of those limits are not well understood. This article explores the spread, specification, and normative problematics of those limits on disability accommodation and modification claims, with special attention to claims involving education. Often legal sources are vague regarding the content of fundamental alteration limits, but the article suggests that leading options include preservation of a program’s (1) nature, (2) details, (3) purposes, or (4) quality, including training and competition. Although several of these options seem unproductive, directing attention to quality training and fair competition among …

Private Religious Schools And Disability Discrimination, Kevin Timpe

Touro Law Review

In the lead-up to the passing of the Americans with Disabilities Act (“ADA”), religious institutions and organizations lobbied to be exempt. Because they were successful in securing an exemption to most of the ADA’s requirements, religious private schools maintain the legal right to refuse admission to disabled students or to fail to give them various legal protections. After considering the arguments given in its favor, the paper critiques this exemption on moral grounds. It then suggests that these considerations should lead to a reexamination of the legal right such schools have to discriminate against disabled individuals, especially in those cases …

Keynote: Promoting Disability Equality Behind Bars, Margo Schlanger

Articles

A few years back, I finished a five-year appointment as a “settlement monitor” in a state prison system for a civil rights case about deaf and hard-of hearing people incarcerated there. With the consent of the parties, I had been appointed by a federal court to spend time in the state’s prisons, talking to prisoners and staff, and reviewing records and facilities. I saw some obvious problems. I recall one deaf prisoner; he used American Sign Language to communicate and could not speak at all. He was found to have committed a disciplinary infraction at a proceeding where he could …

The Caseload Chronicles: Investigating The Case Manager Role Through The Perspectives Of Current Special Education Teachers, Khalil Milad Abouhamad

University of the Pacific Theses and Dissertations

Teacher attrition and resulting shortages have become severely problematic across the United States. This is especially true within special education. This study employs role theory (Kahn et al., 1964) to isolate the case manager role carried by special education teachers, investigate it through the stories of current practitioners, and establish it within academia. Burnout theory (Maslach, 1993) provides a lens through which to evaluate the strain of working conditions surrounding the case manager role. Elements of narrative inquiry (Clandinin, 2006; Creswell & Guetterman, 2019) in the form of 1-1 interviews with current IEP case managers from across California provided the …

Private Religious Schools And Disability Discrimination, Kevin Timpe

University Faculty Publications and Creative Works

In the lead-up to the passing of the Americans with Disabilities Act (“ADA”), religious institutions and organizations lobbied to be exempt. Because they were successful in securing an exemption to most of the ADA’s requirements, religious private schools maintain the legal right to refuse admission to disabled students or to fail to give them various legal protections. After considering the arguments given in its favor, the paper critiques this exemption on moral grounds. It then suggests that these considerations should lead to a reexamination of the legal right such schools have to discriminate against disabled individuals, especially in those cases …

What Copyright Can't Do, Blake Reid

Publications

Copyright has become a powerful regulatory regime for modern American life. Copyrighted works, including text, images, video, sounds, music, and software, coupled with routine, frictionless copying, form a large part of the information, cultural and social context, and infrastructure of our increasingly digital society. Copyright law's powerful remedies are now positioned to intervene in a wide range of everyday activities. As a result, scholars, policymakers, and advocates have increasingly called for modifying and applying U.S. copyright law to solve a wide range of public policy problems, from vindicating disability rights to protecting privacy to promoting competition among wireless carriers.

But …

A Framework For Trauma-Informed Mediation: A Heart And Mind Approach To Conflict Resolution, Michael Saini, Raheena Lalani Dahya, Shely Polak

Cardozo Journal of Conflict Resolution

Unresolved trauma histories can have both short and long-term consequences on children and parents' overall functioning. Using a trauma-informed approach to mediation, we first briefly highlight the impactofadversechildhood experiencesandunresolvedtraumasonadults. We then consider the various vulnerabilities and activations presented within mediation and the fundamental principles of trauma-informed mediation to assist parties in remaining within the "window of tolerance" during the mediation. Trauma-informed mediation is an approach that encourages mediators to be aware of potential trauma activations and to engage in compassionate practices to allow parties to engage within their own individualized "window of tolerance" to resolve disputes. We explore the unique …

An Analysis Of Due Process Hearing Decisions For “§ 504-Only” Students, Perry A. Zirkel

Journal of the National Association of Administrative Law Judiciary

Many empirical analyses have tracked the trends for both the frequency and outcomes of due process hearing decisions under the IDEA. However, the literature entirely lacks any such analysis of due process hearing decisions under § 504. This gap in the literature is largely attributable to two overlapping factors: these decisions are much less numerous than those under the IDEA, and they are not publicly available. The purpose of this article is to address this gap in the professional literature through an exploratory analysis of the frequency and outcomes of due process hearings for § 504-only students. Part I of …

Public School Integration Of Children With Handicaps After Smith V. Robinson: "Separate But Equal" Revisited?, Robert J. Goodwin

Maine Law Review

Under the direction of Chief Justice Burger the United States Supreme Court has issued several opinions limiting the availability of federal causes of action. While one benefit of this trend may be a reduction in the volume of federal litigation, the costs may include the limitation of substantive federal rights. The recent Supreme Court decision in Smith v. Robinson narrowly construed the availability of certain federal causes of action, and it illustrates how such a ruling, although procedural on its surface, in reality can operate to erode substantive rights. In Smith the Court concluded that a handicapped child could not …

Emerging Protection Against Retaliatory Discharge: A Public Policy Exception To The Employment At-Will Doctrine In Maine, Andre D. Bouffard

Maine Law Review

The job security of approximately sixty percent of Maine's civilian labor force has traditionally been, and continues to be, governed by the employment at-will doctrine. In its traditional form, the doctrine allows employers to discharge employees, whose employment contract is for an indefinite length, for good cause, no cause, or bad cause. Similarly, the employee is free to terminate the employment relationship at any time. Courts and commentators have pointed out that the symmetry and logical appeal of the contractual principle of mutuality of obligation is the central doctrinal underpinning of the rule. Because the employment at-will doctrine was consistent …

Handicapped Workers: Who Should Bear The Burden Of Proving Job Qualifications?, June Zellers Schau

Maine Law Review

Joining a growing number of jurisdictions in 1973, the Maine Legislature amended the fair employment sections of the Maine Human Rights Act (the MHRA) to extend equal employment opportunity protection to all physically disabled workers. Nearly a decade later the Maine Supreme Judicial Court, sitting as the Law Court, defined unlawful employer treatment of handicapped workers in Maine Human Rights Commission v. Canadian Pacific, Ltd. The Law Court held that an employment decision based on a worker's handicap constitutes an admission of discrimination that shifts the burden of persuasion to the employer to prove either that all workers with similar …

Understanding The Transitional Needs Of Servicemembers To Veterans: A Focus On Mental, Social, And Behavioral Health, Marieann C. Raguso

Theses and Dissertations

This applied dissertation was designed to fill the gaps on the transitional American veterans’ lived experience using their own voice. The reconstruction of an American Veteran’s identity after transitioning back into civilian life is a process with many challenges. Transitional practices often fail to help veterans to acculturate back into the civilian world. This includes the formulation of identities and associations. There is a lack of consistency in military transitional practices leading to identity loss and the formulation of mental and behavioral disorders. The aim of this study is to examine the lived experiences of veterans who have transitioned back …

Adverse Elements: How Requiring An Adverse Employment Action Element In Ada Failure-To-Accommodate Claims Hinders Disability Rights, Ava Jadwiga Wallace

Washington Law Review

Individuals with disabilities are continuously marginalized by a world tailored to the able-bodied. One of the most visible areas where this marginalization manifests is employment. The Americans with Disabilities Act of 1990 (ADA) attempts to combat this with its extensive legislation to resolve and mitigate disability discrimination in employment contexts. In this attempt, the ADA mandates that employers provide disabled employees with reasonable accommodations—employment modifications necessary for many disabled employees to perform their jobs and feel included in the workplace. Jurisprudence reflects a series of decisions where courts read the ADA narrowly, strictly, and from an able-bodied perspective, resulting in …

Williamson “Waived” Goodbye: Georgia Court Of Appeals Overturns Twenty-Two Years Of Disability Law And Rejects Waiver Of Sovereign Immunity For Federal Disability Claims, Joshua J. Cummings

Mercer Law Review

The Court of Appeals of Georgia upended twenty-two years of Georgia disability law by ruling that the enactment of the Fair Employment Practices Act (FEPA) did not waive the government’s Eleventh Amendment3 sovereign immunity to Americans with Disabilities Act Amendments Act (ADAAA) claims. In Augusta Judicial Circuit Office of the Public Defender v. Hodge-Peets, a state employee brought an action against a state agency, asserting claims for discrimination, failure to accommodate and retaliation under the ADAAA. The state employee claimed that the State waived its sovereign immunity and thereby consented to suit by the enaction of FEPA. This stance …

Disability Discrimination By Clinical Algorithm, Elizabeth Pendo, Jennifer D. Oliva

Articles

In response to America’s escalating drug poisoning crisis, the federal government has funded, incentivized, and mandated that states adopt and implement prescription drug monitoring programs (“PDMPs”) to electronically surveil controlled substances and other “drugs of concern.” State PDMPs utilize proprietary, predictive software platforms that deploy algorithms to determine whether a patient is at risk for drug misuse, drug diversion, doctor shopping, or substance use disorder. PDMPs have never been validated by a federal agency or peer review, yet states have mandated their use throughout the health care delivery system.

Research demonstrates that clinical overreliance on the risk scores generated by …

Silent Suffering: Demanding Individual Accountability For Sexual Assault Against Disabled Children In School Environments, Stephanie Flores

Journal of Law and Policy

Disabled children are among the most vulnerable in society, particularly in school environments where they depend on the actions and care of others for their safety. These children face significantly higher risks of sexual abuse than their non-disabled peers, and school officials' negligence can exacerbate this danger. Despite the prevalence of such cases, the Fifth Circuit's refusal to recognize school officials’ liability under the state-created danger doctrine, as seen in Fisher v. Moore, deprives disabled children of adequate legal recourse under 42 U.S.C. § 1983. The decision holds that school officials cannot be held personally liable for the peer-inflicted sexual …

A Distinct System For Presidential Succession On Inauguration Day: Getting The Most Out Of Section 3 Of The Twentieth Amendment, Brian C. Kalt

Cardozo Law Review

The current presidential-succession statute uses the same line of succession for every conceivable situation. But there are many different types of potential succession scenarios. Succession need not—and should not—be governed by a one-size-fits-all approach.

Before the Twentieth Amendment was ratified in 1933, the Constitution authorized Congress to provide only for double vacancies during the term, when there already is a President and Vice President. Recognizing this gap, Section 3 of the Twentieth Amendment empowered Congress to cover inauguration-day double vacancies: at the outset of a term, when nobody is available to become President or Vice President in the first place. …