The ADA Amendments Act of 2008 sets out to address some of the more controversial and problematic aspects of the definition of disability. The following piece summarizes the provisions of the new law and offers some tentative predictions as to the effect of these changes on future cases.
This article sets as its principal goal the development of a comprehensive model for a fully invigorated direct threat provision that can achieve the transformative purposes Congress assigned it. To understand the weighty challenge we face in setting out to change our built-in approaches to assessing risks, it is first necessary to appreciate the pervasive and elusive nature of stereotypical notions of risk. Part II, accordingly, discusses common ways in which our subjective perceptions of risk frequently are skewed. Understanding these perception errors explains both why we need a rigorously objective direct threat analysis and why it has proved so difficult to achieve.
Many disabled students exercise their First Amendment right to choose to attend a private religious school only to learn that the school will not provide reasonable accommodations crucial to their academic success. Because private religious schools are exempt from Title III of the Americans with Disabilities Act and its reasonable accommodation mandate, disabled students that choose such schools may be forced to find a more welcoming learning environment elsewhere. As a result, disabled students are currently unable to enjoy their Free Exercise Clause right to choose to enroll in their ideal private religious schools to the same extent as their nonhandicapped peers.
The Individuals with Disabilities Education Act (IDEA) requires schools to provide all students who qualify for special education services with a free appropriate public education (FAPE). However, the IDEA does not specify how much substantive educational benefit students must be afforded in order to receive a FAPE, leaving this question for the courts. For over thirty years, courts split over the amount of educational benefit that school districts must provide to their special education students, leading to significant confusion and anxiety among parents and school officials regarding their legal rights. The Supreme Court sought to clarify this standard in Endrew F. v. Douglas County School District RE-1 by ruling that special education students must receive an education that would allow them to make “appropriate progress” based on their individual circumstances. Unfortunately, the Court’s new standard created additional ambiguity and left lingering questions among stakeholders within the education community regarding school districts’ obligations to these students. This Note addresses these questions by identifying the implications of the Court’s appropriate progress standard for students, teachers, and school operations, and proposes that courts adopt a two-part test for applying the new standard that evaluates both the procedures of particular institutions and the substantive value of students’ individualized curricula. Defining the FAPE requirement this way would clarify the standard and provide stability in an area of law plagued by inconsistency.
On April 28, 2009, the Supreme Court heard oral argument in Forest Grove School District v. T.A., a case that addresses a deeply contested issue in special education litigation. Reviewing the Ninth Circuit’s decision in Forest Grove, the Court will decide whether the Individuals with Disabilities Education Act (IDEA)2 entitles parents to reimbursement for their child’s private school education if the child has never received special education services provided by a public school.
Because of the growing divide between the circuits, many parents of children with disabilities face uncertainty about whether they will be reimbursed if they choose to enroll their children in private schools. The Supreme Court should end parents’ uncertainty by affirming the Ninth Circuit’s decision in Forest Grove and holding that parents who enroll their child in private school before that child has received publicly provided special education services are not precluded from tuition reimbursement under the IDEA. The language and intent of the IDEA and the balance of policy considerations support the Ninth Circuit’s decision. More importantly, the Court should capitalize on its opportunity to refine the judicial approach to private school reimbursement cases by adopting an analytical framework that encourages parents and schools to cooperate more closely.
This Comment argues that under the Individuals with Disabilities Education Act (IDEA),8 Section 504 of the Rehabilitation Act,9 and Title H of the American with Disabilities Act (ADA), disabled students are entitled to the administration of Ritalin at school, by school personnel, even when in high doses. Parents and their doctors possess the constitutional right to make medical and moral decisions regarding what form of medical treatment their child will take; school districts do not. School districts must facilitate these decisions because students with ADHD severe enough to require high doses of Ritalin are considered disabled by federal law. Under the IDEA, the administration of high doses of Ritalin to students disabled by ADHD is a required "related service," and under Section 504 and Title II, it is a required "reasonable accommodation." Both requirements aim to help students cope with their disabilities. Therefore, parents of disabled children have the constitutional right to not only medicate their children with high prescriptions of Ritalin, but also the statutory right to have schools do it for them.
Although it is a well-established principle in other fields, the notion that a defendant must accept the status quo of the party it injures is not nearly so straightforward in the context of the employment discrimination provisions of the Americans with Disabilities Act (ADA). This Comment reveals that due to the unique nature of ADA analysis, the law compels employers not simply to face the victims of their discrimination as the employers find them, but often as they make them as well.
This Article focuses on the employment context. My central argument is that a privacy rights model offers a more appropriate framework for addressing the challenges raised by genetic information in the workplace than traditional antidiscrimination laws. The application of a privacy rights model has its own set of practical difficulties, and I do not purport to resolve them all here. Despite these difficulties, a privacy rights approach has the virtue of highlighting the difficult issues that must be addressed in developing any coherent and effective policy on employer use of genetic information.
In light of this ambiguity, this Comment advocates a modified test for courts to use to determine whether a personality test is a preoffer medical examination. The modified test presumes that a personality test administered by a health care practitioner meets the ADA's definition of medical examination, but allows an employer to rebut the presumption with information relating to the purpose and use of the test. The inherent difficulty in classifying personality tests supports adopting the new test.
Disability insurance policies generally provide benefits to workers who are unable to work because they become addicted to drugs or alcohol. But what happens when the addict stops the substance abuse? Addiction is considered to be a lifelong disease with no real cure. Many addicts fear that a return to the workplace will trigger a relapse into substance abuse, for example when an anesthesiologist returns to work after becoming addicted to an anesthetic drug. This Note examines whether the risk of relapsing into substance abuse can ever qualify as a disability under conventional own-occupation group disability policies, which are subject to ERISA. Although courts have readily held that risks of physical harm, such as a heart attack, can constitute a disability because they render a policyholder unable to work, courts have thus far split when it comes to a risk of relapse into substance abuse. This Note argues that a risk of relapse into substance abuse can sometimes constitute a disability because there is no meaningful legal distinction between that and a risk of physical injury. To determine when these risks of future harm constitute a current disability, courts and ERISA plan administrators should assess whether the risk faced by the policyholder would prevent a reasonable person without disability insurance—and thus no reason to falsely claim an inability to work—from returning to employment.
Physicians and medical ethicists are currently engaged in a contentious debate over the obligation to offer "futile" care. As a consequence, a new class of disputes about the withholding of lifesustaining care is emerging. In this debate, providers are balking at family demands for life-sustaining care that they believe is medically inappropriate. This Article explores the limits that the disability rights laws place on these bedside decisions.