Arkansas District Excludes Kids from School Because They Might Have HIV

See this article, which begins:

Local disability rights advocates are accusing the Pea Ridge School District of kicking students out of school because of fear over HIV exposure. 

The Disability Rights Center of Arkansas sent out a statement Friday afternoon calling the school district’s refusal to allow three students to continue attending school“unlawful”, saying the students were being denied the right to attend school until documentation proves they are not HIV-positive.

This action, if it's being reported correctly, pretty clearly violates the ADA.  This was a big issue during the 1980s, and the Rehabilitation Act cases pretty solidly held that a school district can't exclude a kid just because s/he has HIV.  Some fights have to be engaged over and over, it seems.

Father Says YMCA After-School Program Refuses to Accept Son with Diabetes

This again?  See this article, which begins:

A Raleigh father says he has filed a complaint with the U.S. Department of Justice after a YMCA after-school program declined to accept his son, who has Type I diabetes. 

Bruce Hatcher, whose son is a kindergartner at Underwood GT Magnet Elementary School, says YMCA officials told him that they do not administer shots and would not give his son a shot if the boy’s blood sugar dropped too low. 

“It’s more than just a shot. It’s a life-saving shot,” said Hatcher, who asked that his son’s name not be included. “If you had a kid, or anyone had a kid in this situation, you would understand a little better.”

Florida Atlantic U. Student Sues Kaplan for Refusing to Provide Sign-Language Interpreter for LSAT Course

See this piece on Matt Dietz's latest case.

Las Vegas Sun on "Wide-Ranging Problems" in Nevada Mental Health System

See this article.  An excerpt:

In April, the story of one man, James F.C. Brown, sent packing with a one-way bus ticket from the Rawson-Neal Psychiatric Hospital in Las Vegas to Sacramento sparked outrage about Nevada’s mental health system. 

The story, first reported by the Sacramento Bee, provided a glimpse into one aspect of the state’s troubled mental health system, but subsequent investigations have revealed wide-ranging problems in a system struggling to provide even basic services for thousands of mentally ill people in Nevada.

If you read to the end of the article, you will find some basic things that the state could be doing to build up community services and provide people the supports they need without having to build new hospital beds.

Iowa Grants Gun Permits to Blind People

Here's the story from the Des Moines Register that folks have been discussing all weekend.  It seems to me that it's important to keep two issues separate here.  One, nobody should be denied a core right of citizenship (and in the United States, gun ownership is a core right of citizenship) because of some disability label; there needs to be an individualized assessment of a person's abilities, here as elsewhere. But, two, vision impairments may in many circumstances make someone unable to safely use or own a gun, and when they are severe enough to meet the various statutory criteria for blindness they may always do so.  In such cases, the individualized assessment that is necessary might be very quick and easy, and there's nothing wrong from a disability rights perspective with saying that one's blindness may make one unqualified for a gun permit (just as there's nothing wrong from a disability rights perspective with saying that one's blindness may make one unqualified for a driver's license).  That's my opinion, anyway.

Disability Studies Quarterly Call for Papers: Special Issue on the 25th Anniversary of the ADA

Yup, it's getting to that time.  Here's the first in what I expect will be many calls for papers for ADA 25th Anniversary symposia.  Watch this space for more such calls.

CALL FOR PAPERS 

2015 Special Issue of Disability Studies Quarterly on the Americans with Disabilities Act 

In 2015, Disability Studies Quarterly will publish a Special Issue to mark the 25th anniversary of the Americans with Disabilities Act. The ADA has been a watershed in American disability policy, with far-reaching effects on the status of Americans with disabilities, but has fallen far short of the expectations for social transformation with which it was enacted in 1990. The Special Issue will commemorate the ADA’s 25th anniversary with both a look back at how the ADA has affected the disability community and the larger society, and an assessment of future prospects for attaining the ADA’s goals of inclusion and empowerment. 

Papers that are related (broadly) to the ADA are invited from scholars from any academic or professional discipline, disability policy professionals and advocates, and from disability activists. The issue will strive to incorporate a diverse variety of perspectives within disability studies. Priority for selection will be given to manuscripts that are broadly framed and advance our understanding of the direct and indirect consequences of the ADA for people with disabilities, rather than those which focus on narrow legal, policy, or technical aspects of the Act. 

Some examples of potential paper topics include, but would not be limited to: The History of the Americans with Disabilities Act; The ADA and Disability Law; The ADA and the Workplace/Workforce; The ADA and Public Accommodation; The ADA and Community Living; The ADA and Disability in the Arts and Popular Culture; The ADA and Health Care; Disability Culture and Pride Since the Passage of the ADA; Disability Politics Since the Passage of the ADA; The Global Impact of the ADA and the U.N. Convention; Technology, Disability, and the ADA 

All submitted papers will be subject to peer review, and revisions may be requested for inclusion in the Special Issue. The deadline for submission of proposals is June 1, 2014. We anticipate that peer review and editing would be completed, and the complete issue will be submitted to DSQ before the end of 2014. 

Proposals or questions about the Special Issue may be directed to Richard Scotch, Special Issue Editor, at .

Befort Empirically Analyzes Case Outcomes Under the ADAAA

New on SSRN: Stephen F. Befort, An Empirical Analysis of Case Outcomes Under the ADA Amendments Act, 70 Wash. & Lee L. Rev. ___ (forthcoming).  The abstract:

Congress enacted the ADA Amendments Act (ADAAA) in order to override four Supreme Court decisions that had narrowly restricted the scope of those protected by the Americans with Disabilities Act (ADA) and to provide "a national mandate for the elimination of discrimination." This article undertakes an empirical examination of the impact of the ADAA on case outcomes. The recent reported cases provide a unique opportunity for such an examination since, with the ADAAA not retroactively applicable to cases pending prior to its effective date, courts have been simultaneously deciding cases under both the pre-amendment and post-amendment standards. This study examines all reported federal court summary judgment decisions arising under Title I of the ADA for a forty-month period extending from January 1, 2010 to April 30, 2013. The study coded the pre-ADAAA and post-ADAAA decisions for both disability standing determinations and for rulings on whether the plaintiff was qualified for the job in question. These preliminary data show that the federal courts are granting employers a significantly smaller proportion of summary judgment rulings under the ADAAA on the basis of a lack of disability status. In addition, the ADAAA decisions exhibit a greater prevalence of rulings on the issue of whether the plaintiff is a qualified individual. On the other hand, the post-amendment decisions show an increased tendency for the courts to find that the plaintiff is not qualified. While the rate of increase in plaintiff victories on the disability issue is outpacing the rate of increase in plaintiff losses on the qualified issue, the latter phenomenon suggest a continuing judicial unease with disability discrimination claims generally and with reasonable accommodation requests more specifically.

Stein, Silvers, Areheart, and Francis on Accommodating Every Body

The all-star crew of Michael Stein, Anita Silvers, Brad Areheart, and Leslie Francis has this new piece forthcoming in the University of Chicago Law Review entitled Accommodating Every Body.  Check out the abstract:

This Article contends that workplace accommodations should be predicated on need or effectiveness instead of group identity status. It proposes “accommodating every body” by extending an Americans with Disabilities Act reasonable accommodation mandate to all work-capable members of the general population for whom accommodation is necessary to enable their ability to work. Doing so shifts the focus of accommodation disputes from the contentious identity-based contours of “disabled” plaintiffs to the core issue of alleged discrimination. This proposal likewise avoids current problems associated with excluding “unworthy” individuals from employment opportunity — people whose functional capacity does not comply with prevailing workforce design and organizational presumptions — and who therefore require accommodation. Adopting this proposal also responds to growing demands to extend the length of time people remain at work by enhancing employment opportunities for aging individuals still capable of contributing on the job. Provision of accommodations for age-related alteration of functionality, when the accommodations are effective, is reasonably prescribed because everyone hopes to retain maximum capabilities as they grow older, whether or not they also possess identity-based characteristics sufficient to constitute a “disability” under the ADA.

I make a similar argument at points in my book (check the link on the right), so I'm obviously sympathetic to the argument.  Check it out!

Ninth Circuit Holds Hawaii Must Provide FAPE to Kids Over 20

Last week, the Ninth Circuit issued an opinion in E.R.K. v. Hawaii Department of Education.  The case presented a challenge to a 2010 Hawaii statute, which barred students from attending public school after the last day of the school year in which they turned 20.  The plaintiffs, a class of Hawaiian students who were otherwise eligible for special education but over 20, challenged that statute as in conflict with the Individuals with Disabilities Education Act. The IDEA provides that states must provide a free appropriate public education (FAPE) to all children with disabilities through age 21. The IDEA does, however, contain a provision that allows a state not to provide special education to individuals age 18 through 21 if doing so "would be inconsistent with State law or practice, or the order of any court, respecting the provision of public education to children in those age ranges."  The state argued that its 2010 statute, which denied access to the public schools to all individuals who had turned 20 before the beginning of the school year, entitled it to the benefit of that exemption.  But the plaintiffs noted that, although the state denied students over 20 access to the public schools, it did provide them free access to the state-operated Community Schools for Adults, which provided GED and life-skills courses but did not provide special education.  The plaintiffs argued that if the state was going to provide this form of public education to students who had turned 20 before the beginning of the school year, that it must provide a FAPE, including special education and related services, to students with disabilities through age 21.  The Ninth Circuit agreed with that argument.

New Senate HELP Committee Report on Olmstead Implementation

I'm going to go dark again later today, but I'll break radio silence for a few posts.

Just out: This important report on Olmstead implementation, issued by the Senate HELP Committee.  The executive summary:

 The Supreme Court’s 1999 decision in Olmstead v. L.C. put states on notice that unnecessary segregation of individuals with disabilities is a violation of the Americans with Disabilities Act (ADA) of 1990. The ruling was hailed as the disability civil rights equivalent to Brown v. Board of Education, which ordered the desegregation of the nation’s public schools.

 The Olmstead decision clearly articulates that ensuring individuals with disabilities are able to exercise their right to participate as citizens of the state and the country is a protected civil right under the ADA. Olmstead envisioned that states will provide appropriate long-term services and supports (LTSS) to individuals with disabilities through home and community-based services (HCBS) and end forced segregation in institutions.

 Previous testimony before the Committee illustrates the discriminatory nature of institutionalization. One individual stated simply: “People need to have high expectations for people with disabilities because then they’ll give them opportunities to learn and grow. People don’t grow in…institutions.”

 Nationally, there has been a fundamental rebalancing of spending on individuals with disabilities in institutions as compared to spending on HCBS in the years since the Olmstead decision. Between 1995 and 2010, states reduced the share of Medicaid spending on institutions, including nursing homes, mental hospitals, and institutions for people with intellectual and developmental disabilities, from 79 percent to 50 percent.

 However, these numbers fail to paint a complete picture. In reality, only 12 states spent more than 50 percent of Medicaid LTSS dollars on HCBS by 2010. Further, the population of individuals with disabilities under 65 in nursing homes actually increased between 2008 and 2012. This is true even though 38 studies over the past seven years have clearly demonstrated that providing HCBS is more cost-effective than providing services in an institution.

 Last year, on the 13th anniversary of the Olmstead decision, Chairman Harkin requested information from all 50 states on the progress being made to ensure that all individuals with disabilities have the opportunity to live independently in the community through the use of HCBS.

 The result of the survey demonstrates that, with a few exceptions, state leaders continue to approach decisions regarding Medicaid from a social welfare and budgetary perspective. For the promise of Olmstead to be fully realized, state leaders must also approach decisions about Medicaid delivery options from a civil rights perspective. To do so, states must create an Olmstead plan with enforceable benchmark targets—one that fully evaluates whether a state can take advantage of new federal options to better ensure that individuals can live in community-based settings where they can fully participate and be granted the power of individual decision making and choice.

The report also contains extensive recommendations -- definitely worth a look!