Tuesday, March 06, 2007

Two New Disability Pieces on SSRN

New on SSRN:

1. Kate Mueting, A Clear Path through the Labyrinth: A Case for Allowing Victims of Employment Retaliation and Coercion to Recover Legal Damages under the Americans with Disabilities Act. The abstract:

More than a decade after Congress passed the Americans with Disabilities Act of 1990 (ADA) and expanded the remedies available for disability discrimination in employment with the Civil Rights Act of 1991, the Seventh Circuit in Kramer v. Banc of America Securities, 355 F.3d 961 (7th Cir. 2004) became the first federal appellate court to determine that victims of ADA retaliation and coercion in employment are ineligible for legal damages and jury trials. After detailing the law and analysis implicated by this issue, this Note will assert that, based on the language, structure, and legislative histories of the ADA and the Civil Rights Act of 1991, the Seventh Circuit erred in its approach and conclusion. Furthermore, allowing victims of ADA retaliation and coercion in employment to recover punitive and compensatory damages is necessary to effectively further the ADA's anti-discrimination goals.

2. Christopher Walker, Adequate Access or Equal Treatment: Looking Beyond the Idea to Section 504 in a Post-Schaffer Public School. The abstract:

In light of the Supreme Court's decision this Term in Schaffer v. Weast, this Note analyzes the current state of special education law and argues that parents, attorneys, and advocates should look beyond the Individuals with Disabilities Education Act (IDEA) to Section 504 in the post-Schaffer public school. This Note shows how these two standards operate in the context of state special schools for the blind and deaf. A state-by-state survey of thirty states' special school admission policies and practices reveals the IDEA's limitations and Section 504's potentially complementary role. Although other works have briefly compared the IDEA and Section 504, this Note is the first post-Schaffer comparison and also the first to use a specific policy context to demonstrate how the two statutes interact and complement each other; it is also the first published study on the exclusion of multi-disabled students from state special schools. As the state special school context illustrates, Section 504 is a powerful, yet oft-neglected, complement to the IDEA. Whereas the IDEA focuses on adequate access to a free appropriate public education (FAPE), Section 504 emphasizes equal treatment within federally funded programs. This Note advocates that policymakers and special education attorneys understand how to utilize both Section 504 and the IDEA in order to make sure that no child is left behind or otherwise excluded from educational opportunities solely on the basis of a
disability. This understanding is particularly important in the post-Schaffer public school.

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