Disability Law Commons^™

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 …

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 …

Egypt, Lila Meadows, Nadia Adib Bamieh, Janet E. Lord

All Faculty Scholarship

This chapter is a factbook summarizing disability laws, organisations, and statistics in Egypt as of 2014.

Traumatic Brain Injury And The Americans With Disabilities Act: Implications For The Social Work Profession, Dale Margolin Cecka

Law Faculty Publications

The practice of social work has been greatly affected by the Americans with Disabilities Act of 1990 (ADA). Title I of the statute prohibits discrimination against people with disabilities, including the increasing number of workers who are returning to work after a traumatic brain injury (TBI). This article examines the extent to which the ADA protects those with TBI from being harassed, being denied reasonable workplace accommodations, or suffering other adverse actions related to perceived discrimination. To do so, it relies on judicial decisions from U.S. federal courts involving alleged workplace discrimination of this population. Implications for social work practice …

Has Time Expired For Time-Out Rooms?, Charles J. Russo

Educational Leadership Faculty Publications

An issue that continues to raise serious concerns for education leaders surrounds the treatment of students with disabilities who behave unacceptably. In Honig v. Doe (1988), the Supreme Court acknowledged that in such cases, among the procedures available to educators is “the use of study carrels, timeouts, detention, or the restriction of privileges” (p. 325). Time-out rooms—typically small rooms where students who misbehave are sent until they can safely regain their composure—continue to be used in most jurisdictions, subject to state oversight via statutes and regulations (U.S. Department of Education 2010).

The Marrakesh Puzzle, Marketa Trimble

Scholarly Works

This article analyzes the puzzle created by the 2013 Marrakesh Treaty in its provisions concerning the cross-border exchange of copies of copyrighted works made for use by persons who are “blind, visually impaired, or otherwise print disabled” (copies known as “accessible format copies”). The analysis should assist executive and legislative experts as they seek optimal methods for implementing the Treaty. The article provides an overview of the Treaty, notes its unique features, and examines in detail its provisions on the cross-border exchange of accessible format copies. The article discusses three possible sources for implementation tools – choice of law rules, …

Brown's Dream Deferred: Lessons On Democracy And Identity From Cooper V. Arron To The School-To-Prison Pipeline, Lia Epperson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Beyond Title Vii: Rethinking Race, Ex-Offender Status, And Employment Discrimination In The Information Age, Kimani Paul-Emile

Faculty Scholarship

More than sixty-five million people in the United States—more than one in four adults—have had some involvement with the criminal justice system that will appear on a criminal history report. A rapidly expanding, for-profit industry has developed to collect these records and compile them into electronic databases, offering employers an inexpensive and readily accessible means of screening prospective employees. Nine out of ten employers now inquire into the criminal history of job candidates, systematically denying individuals with a criminal record any opportunity to gain work experience or build their job qualifications. This is so despite the fact that many individuals …

Disability, Repressive Regimes, And Health Disparity: Assessing Country Conditions In North Korea, Jae-Chun Won, Janet E. Lord, Michael Ashley Stein, Yosung Song

Articles

This article examines the potential of international human rights standards to account for heightened risk and vulnerability to human rights abuses for persons with disabilities in politically repressive environments. We offer a preliminary assessment of whether and how a disability-cognizant accounting of human rights in repressive regimes can lead to a more credible and comprehensive understanding of disability in such contexts. In so doing, we make the case for a more thorough and thoughtful application of international disability rights standards to better inform human rights investigations, transitional justice approaches, and international criminal law proceedings. To illustrate this methodology, we analyze …

Egypt, Lila Meadows, Nadia Adib Bamieh, Janet E. Lord

Articles

No abstract provided.

The Democratic Life Of The Union: Toward Equal Voting Participation For Europeans With Disabilities, Janos Fiala-Butora, Michael Ashley Stein, Janet E. Lord

Articles

This Article puts forward preliminary legal scholarship on equal political participation by persons with disabilities and what international human rights law requires for its attainment. The goal is to provoke an informed dialogue on the neglected but fundamental human right to enfranchisement by persons with disabilities while also acknowledging that a complete and just resolution requires further information and reflection. The Article argues that the fundamental right to vote cannot be curtailed on the basis of an alleged lack of capacity. Disenfranchisement based on individual assessment unjustly excludes a certain number of voting-capable individuals. Since all those affected are persons …

The Ada Amendments Act Of 2008: Why The Qualified Individual Analysis Is The New Battleground For Employment Discrimination Suits, Andrew E. Henry

Oklahoma Law Review

No abstract provided.

Beyond A Reasonable Doubt: The Constitutionality Of Georgia's Burden Of Proof In Executing The Mentally Retarded, Veronica M. O'Grady

Georgia Law Review

In 2002, the Supreme Court in Atkins v. Virginia announced that executing mentally retarded defendants violates the Constitution. Georgia's standard for determining whether a criminal defendant is mentally retarded-and therefore ineligible for the death penalty- is the highest in the nation, requiring defendants to prove mental retardation to a jury, during the guilt and innocence phase, beyond a reasonable doubt. As in the case of Warren Lee Hill, Jr., this high burden necessarily results in Georgia executing defendants who are almost certainly mentally retarded,arguably violating the Atkins directive. Though once the first state to create a ban on executing the …

No Idea What The Future Holds: The Retrospective Evidence Dilemma, Dennis Fan

Faculty Scholarship

The Individuals with Disabilities Education Act’s predecessor established a multilevel administrative and judicial review system for special education decisions, and ever since, the volume of special education cases in federal court has ballooned. Most present cases involve disputes over whether the school district drafted an individualized education program capable of providing a child with disabilities a “free appropriate public education.” But what evidence parties can bring to these disputes is not settled. Circuit courts are split on whether “retrospective evidence” — evidence that arises after the school district drafts the individualized education program — is admissible. This Note addresses present …

A Defining Moment: A Review Of Disability & Equity At Work, Why Achieving Positive Employment Outcomes For Individuals With Disabilities Requires A Universal Definition Of Disability, Nicole Buonocore Porter

Faculty Publications

This book, Disability & Equity at Work, describes its goal as "to discuss factors contributing to disabled persons' inequality at work and to offer proposals for leveling this uneven playing field." The book is an interdisciplinary, international review of the laws, policies, initiatives, and studies regarding the employment situation of individuals with disabilities. It is a compilation of fifteen different chapters by different authors, which cover a wide variety of subject matters. Some chapters focus on low- and middle-income countries, where individuals with disabilities often have low employment and high poverty rates. And some chapters focus on problems that …

Caregiver Conundrum Redux: The Entrenchment Of Structural Norms, Nicole Buonocore Porter

Faculty Publications

Scholars and feminists (and feminist scholars) have been debating ways to ameliorate the work-family conflict for several decades. For some of us writing in this area, it seems as if the debate is endless and ineradicable. Unfortunately, this Article does not end the debate with some brilliant solution. Instead, I attempt to explain why the "caregiver conundrum" is so unwieldy and unyielding. The reason, I argue, is because of the entrenchment of structural norms in the workplace. By structural norms, I am referring to employers' rules and practices regarding hours, shifts, schedules, attendance, leaves of absence, etc.--basically, when and where …

The New Ada Backlash, Nicole Buonocore Porter

Faculty Publications

[T]his paper explores whether courts are using the reasonable accommodation provision or the qualified individual inquiry to limit the number of individuals entitled to the special protection of the ADA...

This paper will proceed in five parts. Part II provides a brief history of the ADA, both of its structure and legislative history. It then proceeds to a discussion of the major Supreme Court cases that dramatically narrowed the coverage of the ADA through a narrow interpretation of what it means to be an individual with a disability. I will also discuss why courts may have narrowly construed the statute. …

The Ohio State University Dispute Resolution In Special Education Symposium Panel, Robert Dinerstein

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Democratic Life Of The Union: Toward Equal Voting Participation For Europeans With Disabilities, János Fiala-Butora, Michael Ashley Stein, Janet E. Lord

Faculty Publications

This Article puts forward preliminary legal scholarship on equal political participation by persons with disabilities and what international human rights law requires for its attainment. The goal is to provoke an informed dialogue on the neglected but fundamental human right to enfranchisement by persons with disabilities while also acknowledging that a complete and just resolution requires further information and reflection.

The Article argues that the fundamental right to vote cannot be curtailed on the basis of an alleged lack of capacity. Disenfranchisement based on individual assessment unjustly excludes a certain number of voting-capable individuals. Since all those affected are persons …