Disability Law

5 posts

When Anti-Discrimination Law Discriminates: A Right to Transgender Dignity in Disability Law

Issues Volume 50, Issue 2

By Katie Aber

The Americans with Disabilities Act of 1990 (ADA) and its subsequent amendments in 2008 provided comprehensive protection against discrimination based on actual or perceived disabilities. In a compromise necessary to pass the bill, however, the drafters excluded certain disorders deemed to be morally reprehensible, including gender identity disorders. Gender identity disorder, which has since been reclassified in the Diagnostic and Statistical Manual of Mental Disorders as gender dysphoria, describes the distress experienced by transgender individuals as a result of the incongruence between their gender identity and their biological sex. While not all transgender individuals have gender dysphoria, gender dysphoria is exclusively associated with transgender people. Unlike many of the other disorders excluded from protection under the ADA, gender dysphoria neither involves criminal conduct nor causes harm to oneself or others. This Note argues that the exclusion of gender dysphoria from the ADA violates the dignitary rights of transgender individuals because it stigmatizes and demeans them by refusing to apply the broad, almost universal, definition of disability established by the Act to gender dysphoria. The result is that transgender individuals are ineligible to seek access to anti-discrimination protection that they might otherwise qualify for under the ADA. This Note considers the Supreme Court’s analysis of dignity in recent gay-rights jurisprudence, asserts that the Supreme Court recognizes dignitary rights, and argues that the ADA’s exclusion imposes a dignitary harm on all transgender people. This Note concludes that, because the exclusion of gender identity disorder is based on animus, which the Supreme Court has held to lack a rational relationship to a legitimate state interest, the provision is unconstitutional.

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Least Restrained Environment: Amending the IDEA to Require Positive Behavioral Interventions and Supports in IEPs

Issues Volume 52, Issue 2

By Helin Azizoglu

Students with disabilities are disproportionately restrained and secluded in schools. Though sometimes these practices are employed as necessary safety measures to de-escalate a behavioral crisis and protect students and staff from injury, they are prone to abusive or unsafe implementation, especially when performed by untrained or inadequately trained staff. In recent years, research has emerged illuminating the risks associated with these practices, which can lead to injury or death when performed improperly.

There is currently no federal legislative or regulatory framework in place addressing the practice of restraint and seclusion in schools, and state practices vary widely. As such, this Note proposes amending the Individuals with Disabilities Education Act, the statute governing the rights of students with disabilities, to affirmatively require the inclusion of positive behavioral interventions and supports in individualized education plans. Additionally, this Note proposes recommendations to bolster protections for students with disabilities at the state level.

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Invisible Victims: Combatting the Consequences of the College Admissions Scandal for Learning-Disabled Students

Issues Volume 54, Issue 3

By Susannah G. Price

In a recent college admissions bribery scheme, a network of wealthy parents paid entrance exam proctors, admissions insiders, and medical providers to rig the system that enables students with disabilities to receive testing accommodations. By purchasing false disability diagnoses, these parents procured testing accommodations and facilitated cheating on standardized tests — all in an effort to gain admission to top-tier universities. As a result, disability rights advocates fear a backlash against students with legitimate needs for disability accommodations in the college admissions process.

The purposes of this Note are to explore the practical consequences of the scandal for students with learning disabilities and to present a legal framework for preserving disability rights. This Note proposes: (1) adopting a purposive statutory interpretation of the Americans with Disabilities Act (ADA) as amended in 2008 to ensure that the rights of learning-disabled students are not violated; and (2) implementing this interpretation through legislative and regulatory amendments as well as judicial construction. The Note begins with a summary of the college admissions scandal and its exploitation of disability accommodations. Part II examines the legislative framework and case law that govern testing accommodations, including the ADA and its 2008 amendments (ADAAA). Part III outlines the trend of treating prior receipt of accommodations as a quasi-prerequisite for future accommodations, and how this trend discriminates against disabled students with recent diagnoses. Part III also details how the emphasis on prior receipt of accommodations is contrary to the purpose of the ADAAA and proposes adopting a purposive statutory and regulatory interpretation to ensure that first-time applicants for accommodations are not unduly penalized. Part IV identifies concrete methods to implement this interpretation and adequately safeguard the rights of learning-disabled students, including legislative amendment of 42 U.S.C. § 12102, regulatory amendment of 28 C.F.R. § 36.309, and corresponding judicial construction.

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Out of Sight, Out of Mind: Rural Special Education and the Limitations of the IDEA

Issues Volume 54, Issue 1

By Lydia Turnage

In 1975, the Individuals with Disabilities Education Act (IDEA) established a substantive right to “free appropriate public education” (FAPE) for children with special needs. Since that time, the right to FAPE has primarily been defined by — and enforced through — the IDEA’s robust set of procedural safeguards and avenues for private enforcement. However, the Act’s emphasis on procedure over substance has prevented the realization of meaningful educational programming for a significant number of special needs students. This Note illustrates the fundamental tension between the IDEA’s substantive and procedural goals by contrasting the legislative and judicial vision of the IDEA with the current state of special education in rural public schools.

Part II gives a general overview of frameworks for policy implementation. Part III provides a background in the evolution of special education law, with a focus on the role that courts have played in the development of special education policy. Part IV argues against the IDEA’s proceduralist approach by demonstrating how this approach fails to account for the challenges faced by rural students at every stage of the special education process, including eligibility for special education, the formulation and enforcement of individualized education plans, and the provision of feasible alternatives to students’ initial public school placement. Finally, Part V argues that the current framework for the provision of special education should be modified to include more effective means for enforcing students’ rights and should incorporate the “inclusive schools” approach, which allows for a more substantive, collaborative, and holistic approach to providing FAPE.

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Beyond the Point of Exhaustion: Reforming the Exhaustion Requirement to Protect Access to IDEA Rights in Juvenile Facilities

Issues Volume 56, Issue 1

By Abbe Petuchowski

Congress enacted the Individuals with Disabilities Education Act (IDEA), in conjunction with other federal and state laws, to recognize a substantive right to “a free appropriate public education” for youth with disabilities and to establish a process to make this right accessible. Although the IDEA guarantees youth in juvenile facilities the same legal rights to special education services as students attending traditional public schools, correctional and education agencies across the country struggle to provide students in these facilities with special education services that meet these legal mandates. When violations occur, the IDEA imposes a threshold requirement that families exhaust administrative remedies before bringing a claim in state or federal court. Courts have interpreted this requirement, and especially its exceptions for systemic allegations of IDEA violations, in different and unpredictable ways.

This Note analyzes the IDEA’s application of the exhaustion requirement in the context of class action claims against juvenile facilities in federal courts. Part I outlines the substantive rights and procedural protections under the IDEA. Part II examines how structural features of juvenile facilities impede access to IDEA rights. Part III analyzes how the exhaustion requirement and its exceptions interact with the juvenile justice context to further deny access to IDEA rights. To address these concerns, Part IV proposes a range of reforms to the exhaustion requirement for allegations of systemic IDEA violations in juvenile facilities.

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