Category Archives: Disability

New Book: Social Security Disability Law and the American Labor Market

DubinNew Book: Jon C. Dubin, Social Security Disability Law and the American Labor Market (2021). Overview below:

How social security disability law is out of touch with the contemporary American labor market

Passing down nearly a million decisions each year, more judges handle disability cases for the Social Security Administration than federal civil and criminal cases combined.

In Social Security Disability Law and the American Labor Market, Jon C. Dubin challenges the contemporary policies for determining disability benefits and work assessment. He posits the fundamental questions: where are the jobs for persons with significant medical and vocational challenges? And how does the administration misfire in its standards and processes for answering that question? Deploying his profound understanding of the Social Security Administration and Disability law and policy, he demystifies the system, showing us its complex inner mechanisms and flaws, its history and evolution, and how changes in the labor market have rendered some agency processes obsolete. Dubin lays out how those who advocate eviscerating program coverage and needed life support benefits in the guise of modernizing these procedures would reduce the capacity for the Social Security Administration to function properly and serve its intended beneficiaries, and argues that the disability system should instead be “mended, not ended.”

Dubin argues that while it may seem counterintuitive, the transformation from an industrial economy to a twenty-first-century service economy in the information age, with increased automation, and resulting diminished demand for arduous physical labor, has not meaningfully reduced the relevance of, or need for, the disability benefits programs. Indeed, they have created new and different obstacles to work adjustments based on the need for other skills and capacities in the new economy—especially for the significant portion of persons with cognitive, psychiatric, neuro-psychological, or other mental impairments. Therefore, while the disability program is in dire need of empirically supported updating and measures to remedy identified deficiencies, obsolescence, inconsistencies in application, and racial, economic and other inequities, the program’s framework is sufficiently broad and enduring to remain relevant and faithful to the Act’s congressional beneficent purposes and aspirations.

New Article: Vaccination, Disabled Children, and Parental Income

New Article: Karen Syma Czapanskiy, Vaccination, Disabled Children, and Parental Income, 24 J. Health Care L. & Pol’y 59 (2021).

New Article: Brains Without Money: Poverty as Disabling

New Article: Emily R. Murphy, Brains Without Money: Poverty as Disabling, forthcoming Conn. L. Rev. Abstract below:

The United States has long treated poverty and disability as separate legal categories, a division grounded in widespread assumptions about the “deserving” and “undeserving” poor. In the case of disability, individuals are generally not thought to be morally responsible for their disadvantage, whereas in the case of poverty, disadvantage is assumed to be the fault of the individual, who is therefore less deserving of aid. This Article argues, however, that recent advances in brain and behavioral science undermine the factual basis for those assumptions. Poverty inhibits brain development during childhood and, later in life, adversely affects cognitive capacities that are key to decision-making and long-term planning. The science of scarcity is complex and ongoing, but its most basic finding is quickly approaching consensus: poverty’s effects in the brain can be disabling.

This Article argues that understanding poverty as disabling has potentially significant implications for policy and doctrine. Viewing poverty as disabling would provide support for poverty programs with less sludge and more money: proposals such as universal basic income, negative income tax, child grants, and greatly simplified benefits determinations. It also reanimates insertion of social welfare concerns into the dominant civil rights framework for disability policy, and could resolve longstanding tensions between disjointed federal disability laws. In addition, brain and behavioral science may support litigation strategies to compel accessibility to existing systems and potentially help promote a new public understanding of the causes of poverty.

The Article concludes by considering the potential (and significant) downsides of using the lens of science in service of policy: backlash, misunderstanding, and the fragility of relying on nascent science to support fundamentally normative policy goals. One necessary mitigation strategy involves the careful translation of science, including its limitations and residual uncertainties, into legal scholarship, an approach this Article attempts to both model and articulate.

New Article: “Excluding ‘Undesirable’ Immigrants: Public Charge as Disability Discrimination”

New Article: Alessandra N. Rosales, Excluding ‘Undesirable’ Immigrants: Public Charge as Disability Discrimination, 119 Mich. L. Rev. 1613 (2021). Abstract below:

Public charge is a ground of inadmissibility based upon the likelihood that a noncitizen will become dependent on government benefits in the future. Once designated as a public charge, a noncitizen is ineligible to be admitted to the United States or to obtain lawful permanent residence. In August 2019, the Trump Administration published a regulation regarding this inadmissibility ground. Among its mandates, the rule expanded the definition of a public charge to include any noncitizen who receives one or more public benefits for more than twelve months in a thirty-six-month period It also instructed immigration officers to weigh medical conditions that “interfere” with the noncitizen’s ability to care for themselves in favor of finding the noncitizen to be a public charge. The rule prompted several legal challenges, including under section 504 of the Rehabilitation Act, the predecessor to the Americans with Disabilities Act. While these claims address the core legal arguments of disability discrimination, the scope of violations should be viewed more broadly. This Comment assesses the public charge rule from a disability rights perspective, exploring the intersection between disability and immigration law, and concludes that immigrants with disabilities no longer had access to federal programs to which they were entitled, and consequently, access to the United States itself.

New Article: A Necessary Job: Protecting Rights of Parents With Disabilities in Child Welfare Systems

Enne Mae Guerrero, A Necessary Job: Protecting the Rights of Parents With Disabilities in Child Welfare Systems, 18 Hastings Race & Poverty L.J. 91 (2021). Introduction except below:

The United States has 4.1 million parents with disabilities, meaning 6.2% of parents within the U.S. have at least one reported disability. This statistic is even greater for certain subgroups—13.9% of parents who identify as American Indian or Alaska Native and 8.8% of parents who identify as African American report having a disability. These statistics are especially important in the dependency and child welfare context, as multiple studies have found that parents with disabilities are significantly overrepresented within the welfare system. Furthermore, parents with disabilities, or even mere speculated disability, are not only entering the system at disproportional rates, but are facing further discrimination throughout the child welfare process based solely, or in part, on their identification as a person with a disability. For example, a study found that parents with disabilities were three times more likely to experience a termination of parental rights (TPR) than parents without a disability…This paper will address the rights that parents with disabilities have in the child welfare context. Additionally, this paper will indicate what is required of all child welfare agency players under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. This paper will conclude with recommendations to ensure all child welfare players are not impermissibly discriminating against parents with disabilities, but are instead ensuring parents with disabilities are given the opportunity to participate in, and benefit from, the agency’s services in support of reunification with their children.

The Normative Bases of Medical Civil Rights

New Article: Craig Konnoth, The Normative Bases of Medical Civil Rights, in Beyond Disadvantage: Disability, Law, and Bioethics (Glenn Cohen et al, eds., May 19, 2020) (U. Colo. L. Legal Stud. Research Paper No. 20-23). Abstract below:

Being designated as disabled under the law comes with an array of legal rights. These rights range from negative rights against discrimination by the state and by private actors in employment and public accommodations to positive rights to accommodations, financial (welfare) benefits, and even healthcare. Other kinds of status also trigger these kinds of protections, but few produce the same panoply of benefits: for example, race discrimination similarly elicits antidiscrimination protections by the state, and by employment and public accommodations, but rarely any positive rights. Unemployment can yield welfare benefits, but is rarely protected under antidiscrimination law. Thus, “the antidiscrimination laws that govern disability are significantly more equality enhancing than those governing race.” Even if one would think otherwise, the fact remains that a legal designation based on disability produces legal rights that are robust when compared to those that other designations trigger.
Where do these rights come from? To see why this is a puzzle, it is helpful to note where these rights do not come from. When it comes to rights driving from other kinds of designations, the Constitution is an important (although not exclusive) part of the story. The racial justice movement, for example, will include in its narrative the Reconstruction amendments and Brown v. Board of Education, the women’s rights movement Roe v. Wade, and the gay rights movement the recent marriage equality decisions. Those rights exist, some in the movements would argue, because the Constitution says they do. Disability rights, however, do not have the same constitutional pedigree. Constitutional victories have been limited in scope; statutory claims have been far more impactful.
I claim that the reach – and limits ¬¬– of disability rights are best explained by how society conceives of the onset and causes of disability. There are three dominant causal paradigms that drive disability rights. The first paradigm saw disability as the result of bad luck and offered resources for the disabled. This paradigm yielded a first round of rights legislation. The second paradigm realized that the burdens of disability arose, not just from a lack of resources, but also from a lack of social regard and respect and yielded a second generation of rights. Finally, a third paradigm limited the reach of these rights, as it saw disability as individual fault.
Before I proceed, it is worth noting that I subsume conceptions about disability as falling within a larger universe of medical designations of impairment. Prominent disability theorist, Simi Linton, explains that to be disabled a person must have an impairment that “significantly affect[s] daily life and . . . with some consistency . . . present[s] himself/herself to the world at large as a disabled person.” Both as a theoretical matter, and as a legal matter, disability designations borrow from medical designations. Thus, conceptualization of disability in each of these paradigms essentially turns on conceptualization of medical status in a particular context.

New Article: The Aesthetics of Disability

New Article: Jasmine Harris, The Aesthetics of Disability, 119 Columbia L. Rev (2019). Abstract below:

The foundational faith of disability law is the proposition that we can reduce disability discrimination if we can foster interactions between disabled and nondisabled people. This central faith, which is rooted in contact theory, has encouraged integration of people with and without disabilities, with the expectation that contact will reduce prejudicial attitudes and shift societal norms. However, neither the scholarship nor disability law sufficiently accounts for what this Article calls the “aesthetics of disability,” the proposition that our interaction with disability is mediated by an affective process that inclines us to like, dislike, be attracted to, or be repulsed by others on the basis of their appearance. The aesthetics literature introduces a significant complication to uncritical reliance on contact as the theoretical and remedial basis for our inclusive ideal. Contact and engagement with the aesthetics of disability may fail to provide the benefits assumed by contact theory, but more perversely, under certain conditions, they may trigger negative affective responses that may stunt the very normative change sought through antidiscrimination law. This Article proposes a novel theoretical lens to more accurately reflect the complexity of the aesthetic–affective process of discriminatory behavior in the context of disability.

New Article: School Vouchers, Special Education, and The Supreme Court

New Article: Aaron Tang, School Vouchers, Special Education, and The Supreme Court, 167 U. Pa. L. Rev. 337 (2019). Abstract below:

Among all of the contentious debates in education policy, perhaps none is as divisive as the one over private school vouchers. Even as more than 400,000 American students currently use some form of publicly funded voucher to attend a private school—with the number growing each year—one recent survey found that just thirty‐seven percent of Americans support the practice while forty‐nine percent oppose it. This divergence of opinion, unsurprisingly, corresponds largely with political affiliation, with Republicans more likely to support vouchers than Democrats.

In this Article, I argue that a path towards consensus on the voucher debate may be discernible in an unlikely place: an arcane pocket of Supreme Court case law regarding special education. In a series of cases, the Supreme Court has offered a vision of private school choice with plausible appeal to conservatives and liberals alike—a fact evidenced by the overwhelming consensus among the Justices themselves. In each of these cases, the Court has permitted parents of students with disabilities to remove their children from public school and enroll them in a private school at the government’s expense so long as a simple condition is met: the public school must have failed to provide the child with an appropriate education and the private school must succeed in its place. The Supreme Court’s approach to private school choice in the special education context, in other words, treats it as a simple question of empirics. We should support school choice when it helps kids, but not when it does not.

Applying this view to the school voucher debate more broadly would call into doubt many of the popular values‐based arguments advanced on both the left and right, leaving just one sound reason to oppose (or support) vouchers: the argument that they are bad (or good) for students. That argument, of course, is fundamentally contingent; it turns on what the research evidence tells us. And that evidence is hardly as iron‐clad in either direction as the left or right might wish. That, in turn, suggests that liberals and conservatives alike should reconsider their positions on school vouchers in some important ways.

New Op-Ed: A Symbol for ‘Nobody’ That’s Really for Everybody

New Op-Ed: Elizabeth Guffey, A Symbol for ‘Nobody’ That’s Really for Everybody, NYTimes.com, Aug. 25, 2018.

The blue and white wheelchair icon is more than a guide to parking spots and ramps. It allows millions to fully participate in society.

New Article: Homeless, Hungry, and Targeted: A Look at the Validity of Food-Sharing Restrictions in the United States

New Article: Samantha Holloway, Homeless, Hungry, and Targeted: A Look at the Validity of Food-Sharing Restrictions in the United States, Hofstra L. Rev. Vol. 46, 2017.