STOPPING THE SPREAD: CRITICAL DISABILITY THEORY TREATMENT OF THE ATTACK ON DISPARATE IMPACT DISCRIMINATION CLAIMS

During a surge in the COVID pandemic, the Perkiomen Valley School District moved from mandatory masking to optional masking. This prevented some medically vulnerable children with conditions like asthma from safely attending school due to their increased risk of serious infection, prompting the children’s parents to bring suit on their behalf. The court found that while the optional policy was neutral on its face, it should nevertheless be enjoined because it prevented the students from having meaningful access to their education. This disproportionate impact on students with disabilities was a violation of the Americans with Disabilities Act. To reach this result, the Perkiomen court applied the disparate impact theory of discrimination. All but one circuit have held that disparate impact claims are cognizable under Section 504 of the Rehabilitation Act and Title II of the ADA; the Sixth Circuit, however, set itself apart in 2019, creating a split by holding that only intentional discrimination is prohibited. The intentional discrimination framework would not have reached the school’s facially neutral masking policy. While just one circuit has denied Section 504 or Title II disparate impact claims, the implications of that decision extend beyond the Sixth Circuit as more district courts rely on its ruling, joining the broader attack on disparate-impact-based civil rights discrimination claims. This Note argues that the Sixth Circuit’s narrow interpretation of these important disability laws is wrong. By applying several tenets of Critical Disability Theory, it highlights the ways that, by failing to consider the lived experiences of people with common impairments, society can unintentionally contribute to exclusion. Further, it examines the burdens that some courts claim make cases of disparate impact too costly to remedy, weighing the alleged burdens against the fundamental human rights, such as access to public schools, that these remedies protect. In this way, it provides future litigants with a new argument to protect the right to a remedy for disability discrimination using the disparate impact framework. While the case and argument in this Note are set in the context of a school during the COVID pandemic, their relevance extends beyond that to the many public programs and services covered under Title II and Section 504

WESTERN NEW ENGLAND LAW REVIEW TRIBUTE TO DEAN BETH COHEN

This Author’s tribute acknowledges Professor Beth Cohen for her service as Interim Dean during the 2022-2023 academic year, her commitment to legal writing and excellence in legal education, and her years of service to the Western New England University School of Law

SIMULATED LEGAL EXERCISES: DEVELOPING REAL WORLD EXPERIENCES IN THE BUSINESS LAW CLASSROOM

Post-secondary academics commonly subscribe to the belief that, because new college- or graduate-level instructors were once students, they intuitively know how to conduct lectures, plan and direct classroom and homework activities, engage students in problem-based classes and simulations, and so forth. This is only partially true at best. The lack of pedagogical training and knowledge is a problem faced by many new full-time academics who begin teaching either immediately after finishing their own post-secondary education or, like myself, later in life, as a second career. The crux of this Article is my realizing my need for pedagogical knowledge for teaching undergraduate and graduate courses, my acquiring it, and my using it to develop and improve mock, in-class jury exercises that are done in a way comporting with experiential learning methods and allow my business law students to have real-world legal experiences. Through a few personal anecdotes, I want to impart practical wisdom to new post-secondary educators regarding pedagogical development and implementation. This Article has three goals—first, to underscore the importance of stories in encouraging educators to strive for classroom improvement; second, to serve as an educational tool regarding how to improve one’s classroom instruction, particularly in the realm of simulated legal exercises; and third, to provide business law instructors with a mock-jury exercise that they can use without alteration or addition, modify to their needs, or use for guidance in developing their own exercises

CONNECTION IN AN AGE OF CONNECTIVITY: AN EVALUATION OF SYNCHRONOUS AND ASYNCHRONOUS LAW CLASSROOMS

As the world was thrust into a global pandemic, legal education was forced to confront the evolution of technological teaching modalities. While these technological advances allowed legal education to prosper in the short-term emergency education situation, their continued use creates barriers between the student and teacher which diminishes a student’s ability to develop critical lawyering skills. Based on our own roles as professor and student, we agree that deviating from in-person education will have detrimental effects for teachers and students and will undermine the collaborative relationship of the classroom. Legal institutions have refined in-person teaching methods, such as the Socratic Method, as mechanisms to engage and enhance teacher-student relationships. This Article evaluates the merits of distance learning and includes a discussion of a variety of emerging synchronous and asynchronous models but cautions how the evolution of distance education will jeopardize the relationship between teachers and students. The authors conclude that student-teacher collaborative relationships are built on trust and are best achieved through an in-person, synchronous environment

THE AMERICANS WITH DISABILITIES ACT V. THE INTERNET: THE MORE USE THE INTERNET GETS, THE MORE ACCESSIBLE IT SHOULD BE

Suppose you are a blind person who needs to refill your medication prescription at your local pharmacy. You want to use the pharmacy’s website feature that allows you to refill prescriptions from home because of the difficulties you face traveling to and from the building and the lack of privacy you feel inside the pharmacy. When you access the pharmacy’s website on your computer, you realize that ninety percent of the tabs on the pharmacy’s website do not work with your voice-over software. This is the compatible software that you use regularly to navigate the internet as a blind person. Then you think, is it fair or even legal that a blind person cannot receive the full and equal enjoyment of services or products from a website just because of their disability? Congress addressed part of this issue when they passed the Americans with Disabilities Act (ADA) in 1990. Specifically, Title III of the ADA requires “places of public accommodation” to provide consumers with disabilities equal access to the goods and services of private establishments. Since the ADA was passed before the internet was mainstream in the United States, there is no explicit mention of the internet in the Act’s language. So, are online forums required to adhere to the requirements listed in Title III of the ADA? Seven of the United States Courts of Appeals have answered this question, but they have all used different tests in determining their outcomes. The use of different tests has become problematic for both consumers and business owners. This Note will suggest that all of the current tests—the Intention Test, Nexus Test, and Impermissible Barrier Test—are inadequate. It will propose a new bright-line rule that should be adopted by the Department of Justice (DOJ) to enforce ADA coverage for websites and businesses that rely on e-commerce—the Traffic or Profit Test

CREATING A GOOD GIG FOR APP-BASED WORKERS IN MASSACHUSETTS: LETTING COMPANIES DRAFT EMPLOYMENT LAW IS NOT THE ANSWER

There is significant debate surrounding the classification of app-based drivers in the United States. Companies with app-based drivers, such as Uber, Lyft, and DoorDash, have been classifying their workers as independent contractors, rather than employees, despite state laws. In November 2020, with the support of the companies mentioned above, the California legislature passed Proposition 22, defining app-based drivers as independent contractors. What about Massachusetts? There is a debate as to whether app-based drivers are currently employees or independent contractors under Massachusetts law. These app-based drivers should be classified as employees under Massachusetts law but are misclassified as independent contractors. A Massachusetts ballot initiative defined app-based drivers, who met specific criteria, as independent contractors. After the Massachusetts legislature approved the initiative for the November 2022 ballot, the Massachusetts Supreme Judicial Court declared the initiative unconstitutional, preventing the initiative’s placement on the ballot. Then, the United States Department of Labor released a proposed rule in October of 2022 that would revise the federal analysis for determining if a worker is an employee or independent contractor. The Department of Labor accepted written comments from the public until November 28, 2022. It will likely take months for the Department of Labor to read the comments and decide if the rule will be implemented. Implementation of this rule would impact Massachusetts employment law. This Note argues that the initiative in Massachusetts would not have provided app-based drivers with enough benefits and protections, including fair wages and the employer’s obligation to pay and withhold taxes on behalf of the worker. This Note also proposes legislation that Massachusetts should consider, with the Department of Labor’s proposed rule in mind, since the initiative did not make it to the ballot. The legislation proposed in this Note intends to protect and benefit app-based workers in Massachusetts and influence employment law so initiatives like this do not succeed in other states