Sheth on Wrongful Birth/Wrongful Life Actions

New on Westlaw: Darpana M. Sheth, Better off Unborn? An Analysis of Wrongful Birth and Wrongful Life Claims Under the Americans with Disabilities Act, 73 Tenn. L. Rev. 641 (2006). From the introduction:

A recent study shows that more than 80 percent of babies prenatally diagnosed with Down syndrome are aborted. In an age of increasing reliance on prenatal and genetic testing, should state tort law encourage reproductive choices that discriminate against offspring with actual or potential disabilities? Proponents of wrongful birth and wrongful life claims answer this question in the affirmative by supporting claims that allow monetary damages for the negligent deprivation of the choice to abort or not conceive a child with an actual or potential congenital disability. But the notion that one should be compensated under state tort law for the deprivation of the opportunity to prevent the birth of a child with disabilities is inherently incompatible with the ideals embodied in our nation's commitment to end discrimination against individuals with disabilities.

This Article argues that the genetic torts of wrongful birth and wrongful life violate the prohibition of discrimination against individuals with disabilities by public entities contained in Title II of the Americans with Disabilities Act. Although there has been some law review commentary on the torts of wrongful birth and wrongful life, especially in the context of federal abortion law, this Article is among the first to examine the viability of these claims under the Americans with Disabilities Act.

The title of this piece is strikingly similar to Adam Milani's piece on related issues, which everyone interested in these topics should read.

Student Note on Commitment of People with Mental Retardation

New on Westlaw: Laura W. Harper, Comment, Involuntary Commitment of People with Mental Retardation: Ensuring All of Georgia's Citizens Receive Procedural Due Process, 58 Mercer L. Rev. 711 (2007). The introduction:

In the state of Georgia there are approximately three thousand citizens who are confined to segregated living institutions because of their disabilities. Many of these individuals are placed in institutions involuntarily through legal proceedings. Some of these individuals have mental retardation, a condition that occurs during a person's development and results in below normal intellectual functioning. Many disability advocates argue that segregation and institutionalization of people with mental retardation is not needed, although all do not agree. Despite strong advocacy for the rights of people with disabilities, many continue to be institutionalized, often because their families can find no other path of treatment for their loved ones.

This Comment focuses on the procedures used in Georgia to continue the habilitation of people with mental retardation. In order to commit someone initially, Georgia's statute requires an adversarial hearing with ample procedural protections. However, once the initial order for habilitation is signed, the level of procedural protections for Georgia's citizens drops dramatically. This Comment first analyzes the procedures currently in place in Georgia. Next, it analyzes what procedural due process might require in order for a state to continue its habilitation of a person with mental retardation. Because there has been no United States Supreme Court decision on point, this Comment focuses on past procedural due process decisions to outline the possible requirements. It also analyzes the procedures that other states utilize for continued habilitation, as the Supreme Court currently considers what procedures are used by states when determining how much procedure is due.

After analyzing what procedural due process requires, this Comment discusses how those constitutional rights can be waived, including what constitutes adequate notice of rights. After outlining the relevant law, this Comment analyzes Georgia's procedures to determine (1) whether they comply with the proposed requirements of procedural due process and (2) whether the statute provides adequate notice so that failure to exercise those rights results in waiver. Finally, this Comment suggests possible amendments to Georgia's procedures so that committed persons receive all of the protections they are entitled to under the law and so that no person is needlessly confined.

Dietz on Reasonable Accommodation for Attorneys with Disabilities

Just out in the Florida Bar Journal: Matthew Dietz's article, Reasonable Accommodations for Attorneys with Disabilities.

Bazelon Center on Virginia Tech Shootings

See this article from Inside Higher Ed. It begins:

There’s lots of talk in these post-Virginia Tech tragedy days of the need to better identify students who are disturbed, just as there are plenty of calls from politicians and others to find ways to quickly remove them from colleges. An advocacy group for people with mental illness thinks the talk has gone too far.

“It’s sad that in the wake of a tragedy like this, there’s the hunger for quick fixes and quick legislation,” said Robert Bernstein, executive director of the Bazelon Center for Mental Health Law, at a press conference Thursday.

Added Chris Koyanagi, the center’s policy director: “I’m disappointed that the conservation has been about what could have been done right before to prevent this [shooting spree]. What about earlier?”

Cho Seung-Hui, the Virginia Tech shooter, entered a mental health facility in late 2005. Several leaders of the Bazelon Center said the real story is that police didn’t know where to turn when alerted of Cho’s stalking and threat of suicide, and that professors who saw the student’s disturbing writing didn’t find the right resources in the public health system.

Center advocates say changes have to be made at colleges so that everyone is aware of protocol when dealing with a student who is deemed a threat. Leaders of the center are working on a best practices report that urges colleges to avoid blanket policies that limit a student’s likelihood of seeking help but that still allow officials to intervene when needed.

Bernstein said the larger issue is fixing what he calls large gaps in service availability. Too few counselors are available to students at many campuses, he said.

Housing Discrimination Complaints Hit Record

See this article by that title, which begins:

A record number of Americans are complaining about housing discrimination, with disability and race as the leading reasons for filing a complaint, according to the government's annual fair housing report.

Guess Who's to Blame for the Virginia Tech Shootings

It's advocates of deinstitutionalization, if you read this in today's Wall Street Journal. After the obligatory shots at 1970s-era deinstitutionalization advocates, the op-ed turns to the Virginia Tech shootings:

Diagnosis from afar is the purview of talk-shows hosts and other charlatans, and I will not attempt to detail the psyche of the Virginia Tech slaughterer. But I will hazard that much of what has been reported about his pre-massacre behavior--prolonged periods of asocial mutism and withdrawal, irrational anger and hatred, bizarre writing and speech--is not at odds with the picture of a fulminating, serious mental disease. And his age falls squarely within the most common period when psychosis blossoms.

No one who knew him seems surprised by what he did. On the contrary, dorm chatter characterized him explicitly as a future school-shooter. One of his professors, the poet Nikki Giovanni, saw him as a disruptive bully and kicked him out of her class. Other teachers viewed him as disturbed and referred him for the ubiquitous "counseling"--an outcome that is ambiguous to the point of meaninglessness and akin to "treatment" for a patient with metastasized cancer.

But even that minimal care wasn't given. The shooter didn't want it and no one tried to force him to get it. While it's been reported that he was involuntarily committed to a "Behavioral Health Center" in December 2005, those reports also say he was released the very next morning. Even if the will to segregate an obvious menace had been in place, the legal mechanisms to provide even temporary "warehousing" were absent. The rest is terrible history.

That is not to say that anyone who pens violence-laden poetry or lets slip the occasional hostile remark should be protectively incarcerated. But when the level of threat rises to college freshmen and faculty prophesying accurately, perhaps we should err on the side of public safety rather than protect individual liberty at all costs.

If the Virginia Tech shooter had been locked up for careful observation in a humane mental hospital, the worst-case scenario would've been a minor league civil liberties goof: an unpleasant semester break for an odd and hostile young misanthrope who might've even have learned to be more polite. Yes, it's possible confinement would've been futile or even stoked his rage. But a third outcome is also possible: Simply getting a patient through a crisis point can prevent disaster, as happens with suicidal people restrained from self-destruction who lose their enthusiasm for repeat performances.

U. Michigan Stadium Access Litigation

See this from the Chronicle of Higher Education:

A group of disabled veterans has sued the University of Michigan at Ann Arbor over what they say is an attempt to evade the requirements of the Americans With Disabilities Act during the renovation of Michigan Stadium, the Associated Press reported.

The federal lawsuit, filed by the Michigan Paralyzed Veterans of America, accuses the university of characterizing the $226-million project as merely a series of repairs rather than a wholesale revamping of the giant stadium, which will add seats, enlarge seats and aisles, and, perhaps most important, install 83 luxury suites.

The disability law would call for 1,000 wheelchair-accessible seats scattered throughout the 107,500-seat arena, but only if the project is considered an “alteration,” according to a lawyer for the veterans. Wheelchair-bound fans are currently restricted to 45 seats in each end zone.

Chapel Hill Settles Discrimination Lawsuit

See this article by that title. It begins:

Denying any wrongdoing, the town has agreed to pay $30,000 to settle a housing discrimination claim brought by the mother of a disabled girl.

In December 2005, the federal Justice Department sued the town for failing to provide a subsidized apartment with wheelchair access. Both parties have agreed to settle the dispute, but the U.S. District Court in Greensboro still must approve the agreement.

Under the settlement, the town would adjust its housing accommodation policy and retrain employees on the Fair Housing Act, which prohibits discrimination based on a disability.

"No one with a disability should be denied an accommodation they need to maintain their independence," said Kim Kendrick, assistant secretary for fair housing and equal opportunity with the U.S. Department of Housing and Urban Development.

Kari R. Johnson, a Raleigh lawyer representing the town, said Chapel Hill denies the allegations but settled to avoid fees that would have resulted from a protracted legal battle.

Areheart on the Medical Model of Disability

New on SSRN: Bradley Allan Areheart, When Disability Isn't "Just Right": The Entrenchment of the Medical Model of Disability and the Goldilocks Dilemma, 83 Ind. L.J. __ (forthcoming 2008). The abstract:

In this Article, I analyze how federal courts' interpretations of the Americans with Disabilities Act ("ADA") have presented a "Goldilocks" dilemma for disabled individuals. In particular, I examine how a typical ADA plaintiff is found either "not disabled enough" to warrant the protections of the ADA or "too disabled" to be a "qualified individual" for the respective job. The result is that very few plaintiffs are disabled "just right." Such a result is at odds with the original intent of the ADA.

Concern over the ADA could hardly be more timely. Just last fall, in September of 2006, bipartisan legislation based on the National Council on Disability's recommendations was introduced in the House of Representatives. It was entitled the "Americans with Disabilities Act Restoration Act of 2006," but failed to make any progress before the session ended and the bill was cleared from the books. However, a new Congress provides new hope for the passage of such a bill.

After explicating the two dominant theoretical models for understanding disability - the medical and social models of disability - I examine how most of the problems with how disability is understood and interpreted stem from the entrenchment of the medical model of disability. I explain how representations in the media and federal court decisions have underscored a "medicalized" view of disability. Moreover, I document how such a view has fostered misperceptions and false stereotypes concerning those with disabilities.

Finally, I advocate that Congress pass an ADA Restoration Act similar to the one proposed last fall. I explain how this Act would overhaul the ADA and provide a compelling solution that has not yet received much scholarly examination. I also recommend that the EEOC draft reports to document systemic disability discrimination toward certain groups.

Jolly-Ryan on the Timed and Flagged LSAT

New on SSRN: Jennifer Jolly-Ryan, The Fable of the Timed and Flagged LSAT: Do Law School Admissions Committees Want the Tortoise or the Hare? The abstract:

This article questions whether the strict time limitations for taking the LSAT conflict with law school admissions committees' goals of measuring an applicant's aptitude and predicting who will be good law students or who will be good lawyers. Strictly timed tests, as gate keepers to the legal profession, emphasize test takers' speed, to the detriment of more valuable qualities such as perseverance, accuracy, and care.

The article also questions whether the practice of flagging LSAT test scores of law school applicants with disabilities, is discriminatory. The practice of flagging LSAT scores of test takers with disabilities should end, as it has ended for most standardized tests, including the SAT, ACT, GRE, GMAT, and TOEFL. Flagging LSAT scores of test takers with disabilities stigmatizes law school applicants in the
admissions process and is contrary to the goal of federal law in placing test takers with disabilities on equal footing by assessing their abilities, rather than their disabilities.

Smith on the Definition of Disability

New on SSRN: Deirdre M. Smith, Who Says You're Disabled? The Role of Medical Evidence in the ADA Definition of Disability (Tulane Law Review, forthcoming). The abstract:

The Americans with Disabilities Act ("ADA"), enacted by Congress seventeen years ago, offered disabled people a hope for equality and access that has not been fulfilled. Court decisions halt an overwhelming majority of claims at the summary judgment stage. A key mechanism for fencing out disabled people's claims is the pernicious requirement, based upon the very construction of disability that the ADA's proponents aimed to dispel, that medical evidence is required as a threshold matter to demonstrate that the statute applies. However, a plaintiff's testimony is sufficient to establish a prima facie claim of disability. Whether such evidence, standing alone, is ultimately persuasive in proving disability should be a question for the fact-finder.

This Article argues that courts improperly require plaintiffs to produce expert medical evidence to establish that they meet the statute's definition of an "individual with a disability." The stated rationales applied to the medical evidence requirement,
such as the need for "corroborating" evidence, "objective" evidence, or evidence to assist juries in assessing disabilities that are not "obvious," do not withstand analysis under either the substantive law of the ADA or broader summary judgment principles. Such requirement in fact reflects an unstated rationale: a deep-seated skepticism of those "claiming disability" generally and ADA plaintiffs specifically. As a result, judges disregard the proper analysis to be applied to summary judgment motions and instead impose a hyper-technical, heightened evidentiary burden on plaintiffs in an effort to foreclose potential malingers' claims from reaching the trial stage. This skepticism, however, is itself another form of entrenched, invidious discrimination against people with disabilities.

Moreover, judges' reliance on medical evidence to screen out claims brought by people faking or exaggerating disability is misplaced. The determination of whether a person is truly disabled or merely exaggerating her condition to achieve some secondary gain through ADA litigation is one more properly left to jurors than to doctors. The continued hegemony of medicine in identifying disability, as demonstrated in the view that physicians can and should serve as gatekeepers of disability claims, wrongly pathologizes and demeans the category of "disability" and undermines the statute's effectiveness as a tool to advance civil rights.

Dresser on Schiavo

My colleague Rebecca Dresser has just posted on SSRN her piece, Schiavo and Contemporary Myths About Dying, 61 U. Miami L. Rev. 401 (2007). The abstract:

When the Schiavo case burst onto the national scene, most of us assumed that everyone would see the case as we did. But instead, Schiavo showed that U.S. pluralism was alive and well in decisions about life-sustaining treatment. Schiavo demonstrated, too, that at least some of this pluralism reflects misguided myths about human life and death. In this essay, I examine the myths that Schiavo exposed. One such myth is that death with dignity is easily attainable in modern America, as long as people make living wills. Another myth is that only patients themselves are permitted to take quality of life into account when deciding about life-sustaining interventions. A third myth is that research advances are bringing an end to the difficulties of aging. To examine the myths, I draw on public commentary about Schiavo and on four texts published in 2005, when the case was in the headlines.

Burris and Moss on the Impact of the ADA on Employment

New on SSRN: Scott Burris & Kathryn Moss, The Employment Discrimination Provisions of the Americans with Disabilities Act: Implementation and Impact, ___ Hofstra Lab. & Emp. J. ___ (forthcoming 2007). The abstract:

Title I of the Americans with Disabilities Act prohibits employment discrimination on the basis of disability. Since its passage in 1990, debate has raged about whether the statute is doing any good. A steady stream of narrowing court decisions has led some to declare the law a failure. This article reviews the empirical evidence on the effectiveness of Title I. Many studies find a decline in employment rates among the disabled in the wake of the ADA, but the evidence that these declines were caused by the ADA is weak. Title I protects people who require no more than a "reasonable accommodation" to do the job in question; the employment data include a much broader range of people, many if not most of whom could not meet Title I's qualification standard. Studies that "correct" for this difference find no or even a slightly positive impact on employment. Studies of employer attitudes and practices show a positive change, as do a few studies of the "empowerment" felt by people with disabilities.

Many commentators attribute any weakness in the effect of the ADA to the narrow interpretation of key elements of the statute by the federal courts. While the statute has been narrowly interpreted, a more important factor may be the flaws in processing of complaints by the EEOC and state partner agencies. While the limitations of the statute's language are real, Title I has provided benefits to workers with disabilities and could provide more benefits if enforcement mechanisms were improved.

We conclude that Congress should revisit the promises it made in the ADA. For people whose disabilities make it difficult to work, even with an accommodation, anti-discrimination law cannot have much of an effect on employment rates except as part of a comprehensive policy encompassing social security, health care, training programs and tax incentives. Only Congress can rewrite the statute to protect people who can work but whose disabilities have been excluded from the statute by the courts. And Congress, state legislatures and the bar must take steps to repair our broken enforcement system for employment discrimination disputes: more funds, greater use of mediation, and better legal services are essential to making the ADA a real remedy for employment discrimination.

Townsend on Learning Disabilities

New on Westlaw: Nicholas L. Townsend, Framing a Ceiling as a Floor: The Changing Definition of Learning Disabilities and the Conflicting Trends in Legislation Affecting Learning Disabled Students, 40 Creighton L. Rev. 229 (2007). From the introduction:

The ADA licensing exam cases and the No Child Left Behind legislation are in philosophical tension. Recent Supreme Court cases have narrowed the ADA's definition of disability for fear that a broad definition that recognizes too many people as disabled will undermine the Act's potency. No Child Left Behind and its companion legislation, on the other hand, try to integrate children with disabilities into the mainstream of American education instead of drawing a sharp distinction between disabled and non-disabled. Both are policy choices born of good intentions. However, the average person standard, which arises to some extent in both contexts, dangerously shifts the essential meaning of learning disabilities. Measuring learning disability by comparison to the average person instead of an individual's potential is underinclusive, excluding those learning disabled students with high potential from receiving the accommodations they need to realize it. In effect, the average person standard becomes a restriction on their rights. These laws change the definition of learning disabilities in a way that threatens to bar a specific category of high-achieving learning disabled individuals from realizing their potential by placing a ceiling on their right to claim legal protection.

Waterstone on Public Enforcement

Up on SSRN: Michael Waterstone, A New Vision of Public Enforcement (Minnesota Law Review, forthcoming). The abstract:

Civil rights laws are not self-enforcing. Enforcement mechanisms, therefore, need to be studied as part of the larger debate on the form and direction of civil rights law. The current decline of the ability of the private attorney general to fairly and consistently enforce our civil rights laws argues for a renewed emphasis on the importance and form of government enforcement. Focusing on the Americans with Disabilities Act, this Article presents a new vision of public enforcement. After explaining the historical, theoretical, and practical strengths of public enforcement - all things that cannot be completely outsourced - this Article suggests that public enforcement officials need to renew their commitment to structural litigation. Because public enforcement is inherently political, this Article attempts to build the case that such enforcement is needed and can be effective. In recognition that litigation, even of the structural variety, will always be an incomplete enforcement strategy, this Article also considers the role of public officials in non-litigation activity. In particular, it offers a novel application of new governance theory to public enforcement activity, concluding that government programs that focus on collaboration, information sharing, and cooperative interactions should supplement - not supplant - an aggressive litigation policy.

Michael's interesting piece sounds similar themes to (though goes in a quite different direction than) my little piece, just out in the Northwestern University Law Review's Colloquy, Mandatory Pro Bono and Private Attorneys General.

Perry on Wrongful Life Claims

Michael Stein passes along this piece that is forthcoming in the Cornell Law Review and was posted on SSRN by Ronen Perry, entitled It's a Wonderful Life. The abstract:

The title of Frank Capra's classic 1946 movie seems to encapsulate a fundamental all-American conviction. Unsurprisingly, it has been applied by several courts and jurists as the ultimate retort to one of the most intriguing questions in modern tort discourse: Is it possible to say that a severely disabled child has been harmed by the mere fact of being born? Wrongful life claimants will answer in the affirmative, whereas Capra's aphorism makes a compelling counterargument. In my opinion, the contrasting views represent equally legitimate subjective beliefs rather than objective truths; so neither may ever prevail. Having no satisfactory solution within conventional wisdom, the life-as-injury debate may be regarded as the Gordian knot of tort law. The purpose of the Article is to cut, rather than untie the knot: Allow the child to recover, without challenging or validating the deep-seated perception of life.

Part I shows that the hostility to liability in tort for wrongful life is almost a universal phenomenon, crossing lands and seas. Part II argues that this demurral is ultimately rooted in the absence of one of the central components of the cause of action. A tort action must fail because of the inability - logical and practical - to establish “harm” under the traditional definition of this term. Part III opines that since the Gordian knot of tort law cannot be untied it must be cut altogether. The traditional framework, giving rise to an insoluble problem, should be replaced with a more promising contractual framework, inspired by the celebrated case of Hawkins v. McGee. In my view, the child's action may be based on the claim that the defendant promised her parents that she would be born without a certain defect, and that the promise was not fulfilled. In formal terms, the child is an intended third-party beneficiary of the contract concluded between her parents and the consultant, in which the latter warranted that she would not be born with a particular disability. The warranty of the future child's physical integrity and health, being an integral
and inseparable part of the contract, should form the basis of her cause of action.

This is an interesting piece, though I'm not convinced it really resolves the problems many folks have with wrongful life claims. Perhaps it's typical of a tort theorist, but Perry doesn't cite much of the interesting work folks have done from an explicitly disability rights perspective on this and related issues (e.g., Adam Milani's piece, and this instant classic).

D.C. Circuit on Blindness and Batson

Via Howard Bashman, I see that the D.C. Circuit today decided a case involving the application of Batson v. Kentucky (which prohibits race-motivated peremptory challenges to jurors) to peremptory challenges to jurors with disabilities. In its opinion, the D.C. Circuit held that, unlike in the case of race or sex discrimination, peremptory challenges motivated by disability are judged by nothing more than the standard of minimum rationality. And the court held that the prosecution had a rational basis for dismissing a blind juror, as some evidence in the case was visual (even though there was very little visual evidence, and it wasn't especially central to the case).

Eighth Circuit on ADA and Police Failure-to-Train Cases

Today, the Eighth Circuit issued an opinion in Yeng Thao v. City of St. Paul. The case was brought by the estate of a person with schizophrenia, who was fatally shot by St. Paul police officers when they entered his home and he came at them with a sickle and a BB gun. The plaintiffs filed suit under, inter alia, Title II of the ADA for failing to provide adequate training to the officers in responding to individuals with mental illness. The Eighth Circuit affirmed a grant of summary judgment to the defendants. Although the court expressed no opinion on whether there could ever be ADA liability for police failure to train, it found such liability improper on the facts of the case.