Disciplining Students with Disabilities: An American Perspective

A significant interconnectedness exists between and among schools, parents, students with disabilities, and local communities. A topic of great interest in Australia, New Zealand, the United States, and beyond, educators, working in conjunction with their attorneys, struggle with meeting their legal duty to meet the needs of students with disabilities, not only when they are in school but also when they leave formal educational settings since they must then sustain themselves for the rest of their lives. As educators seek to meet the educational needs of students with disabilities, an area that often presents a major controversy is discipline, particularly when students’ actions threaten the safety of learning environments. At the same time, though, disciplining or excluding students with disabilities, however necessary, may limit their ability to complete their schooling as they prepare to support themselves when they move into the ‘real world’. In fact, serious issues arise when educators must evaluate whether student misbehavior is a manifestation of their disabilities, which has implications for both discipline and educational services. Further, since students whose misbehavior is a manifestation of their disabilities cannot be excluded from school, as can their peers who are not disabled, such situations create a tension in which parents and others might argue that differential disciple violates the due process rights of those who are not disabled. Based on the evolution of legal questions associated with disciplining students with disabilities, the remainder of this article is divided into two substantive sections. The first part of the paper examines legal developments in the United States by tracing the evolution o f the Individuals with Disabilities Education Act (IDEA),1 an extensive statute on the rights of children with special needs in the hope that this will be informative to educators from other nations, most notably Australia and New Zealand where the law is not as prescriptive in this regard as in the United States. This section of the paper also examines legislation and litigation in the United States. The second part of the paper offers practical recommendations to educators and their lawyers on steps that they may take to protect the due process rights of students with disabilities who are subjected to discipline. This portion of the paper includes a discussion of policy development as well as the parameters and acceptable forms of discipline such as the use of time out rooms, physical restraints, and exclusions from school. The paper rounds out with a brief conclusion

My Brain Is So Wired; Neuroimaging\u27s Role in Competency Cases Involved Persons with Mental Disabilities

In this article, we consider the therapeutic jurisprudence implications of the use of neuroimaging techniques in assessing whether a defendant is competent to stand trial, a topic that has been the subject of no prior legal commentary. Recent attention paid to neuroscience in the criminal process has focused on questions of mitigation and competency to be executed, but the potential of such evidence transcends these areas. There has been almost no attention paid to its potential impact on a critical intersection between the criminal trial process and inquiries into mental or psychological status: a defendant’s trial competency. Less than a handful of reported cases consider this question, and it is “under the radar” for most relevant scholarship as well, notwithstanding that (1) this inquiry is, numerically, the most important “disability law” question relevant to criminal law, (2) the costs of these hearings are staggering, and (3) the incompetency status in no way admits or presumes factual guilt. It is imperative that the ways in which neuroimaging may influence competency determination be studied and understood. We review legal standards for competency in the context of mental disabilities, then examine what neuroimaging may be able to add to these determinations. We examine this in the context of therapeutic jurisprudence, discussing whether the introduction of scientifically-based evidence of incompetency will lead to a therapeutic outcome for the defendant, no matter what its usefulness to the court. We also consider the important, related questions of (1) defense counsel’s competency to provide effective representation in this important area of law-and-science, and (2) an indigent defendant’s access to such testimony. Again, there is virtually no legal scholarship on this important topic. We hope that this paper encourages others – judges, scholars, policymakers, forensic mental health professionals – to think carefully about the questions we seek to address and our proposed solutions

Wisdom is Thrown into Jail: Using Therapeutic Jurisprudence to Remediate the Criminalization of Persons with Mental Illness

The common wisdom is that there are two related villains in the saga of the “criminalization of persons with mental illness”: the dramatic elimination of psychiatric hospital beds in the 1970s and 1980s as a result of the “civil rights revolution,” and the failure of the deinstitutionalization movement. Both of these explanations are superficially appealing, but neither is correct; in fact, the causal link between deinstitutionalization and criminalization has never been rigorously tested. It is necessary, rather, to consider another issue to which virtually no attention has been or is being paid: the near-disappearance of mental status issues from the criminal trial process. It was never an attractive option for a criminal defense lawyer to put forth a lack of responsibility defense or to raise the question of her client’s mental status at time of trial. A number of events in the past three decades, however, have made these options even less attractive – the narrowing of the insanity defense in many jurisdictions; the Supreme Court’s decision in Jones v. United States, sanctioning periods of confinement following insanity acquittals longer (often far longer) than the maximum sentence for the underlying crime; the states’ continued failure to adequately implement Jackson v. Indiana; the greater use of involuntary anti-psychotic medication as a means of seeking to restore incompetent defendants’ competency to stand trial. As a result, there is much less of an incentive for lawyers to explore these options as, realistically, their clients will most likely be incarcerated for far less time if there is no court decision on competency or sanity. This paper discusses: (1) why the common wisdom is wrong, (2) why and how the universe of mental status/defense has shrunk so markedly, (3) how therapeutic jurisprudence should be pursued as potentially remediating influences on the current state of affairs, and (4) why it is crucial that lawyers be trained in the intricacies of this complex area of law and policy

Promoting Social Change in Asia and the Pacific: The Need for a Disability Rights Tribunal to Give Life to the UN Convention on the Rights of Persons with Disabilities

There is no question that the existence of regional human rights courts and commissions has been an essential element in the enforcement of international human rights in those regions of the world where such tribunals exist. In the specific area of mental disability law, there is now a remarkably robust body of case law from the European Court on Human Rights, some significant and transformative decisions from the Inter-American Commission on Human Rights, and at least one major case from the African Commission onHuman Rights. In Asia and the Pacific region, however, there is no such body. Many reasons have been offered for theabsence of a regional human rights tribunal in Asia; the most serious of these is the perceived conflict between what are often denominated as “Asian values” and universal human rights. What is clear is that thelack of such a court or commission has been a major impediment in the movement to enforce disabilityrights in Asia. The absence of such a body has become even more problematical since the United Nations’ Convention onthe Rights of Persons with Disabilities has been ratified. Finally, there is now “hard law” clearly establishing the international human rights of persons with disabilities, but, without a regional enforcement body, we cannot be overly optimistic about the “real life” impact of this Convention on the rights of Asian and Pacific region persons with disabilities. The research is clear. In all regions of the world, persons with mental disabilities – especially those institutionalized because of such disabilities – are uniformly deprived of their civil and human rights. The creation of a Disability Rights Tribunal for Asia and the Pacific (DRTAP) would be the first necessary step leading to amelioration of this deprivation. It would be a bold, innovative, progressive and important step onthe path towards realization of those rights. It would also, not unimportantly, be – ultimately – a likely inspiration for a full regional human rights tribunal in this area of the world. If, however, it were to be created, it is also clear that it would be an empty victory if there were not lawyers available to represent individuals who seek to litigate there. In this paper, I first consider the existence and role of regional human rights tribunals in other parts of theworld, and then briefly discuss some of the important disability rights cases litigated in those regions so as todemonstrate how regional tribunals can have a significant impact on the lives of persons with disabilities. Then, I consider why there is a need for the DRTAP, looking at the absence of such bodies in Asia and thePacific, the need for such a body, focusing specifically on the gap between current domestic law “on thebooks” and how such law is practiced in “reality”, as well as the importance of what is termed the “Asian values” debate, concluding that this debate leads to a false consciousness (since it presumes a unified andhomogenous multi-regional attitude towards a bundle of social, cultural and political issues), and that theuniversality of human rights must be seen to predominate here. I then explain why the new Convention is paradigm-shattering, and why the creation of the DRTAP is timely, inevitable and essential, if the Conventionis to be given true life. I then briefly summarize the work that has already been done on the creation of a DRTAP, and how this work needs to continue in the future. I conclude by looking at the role of counsel in therepresentation of persons with mental disabilities, the current lack of counsel experienced in this subject matter in Asia and the Pacific, and the importance of training lawyers to provide adequate representation before DRTAP, insuring that this Tribunal has an authentic impact on social change

They Keep It All Hid: The Ghettoization of Mental Disability Law and Its Implications for Legal Education

The Supreme Court has, since 1972, decided more than fifty cases involving persons with mental disabilities, a docket spanning virtually every aspect of constitutional law and criminal procedure. These cases have dealt with the substantive and procedural limitations on the commitment power, the conditions of confinement in psychiatric institutions, the application of the Americans with Disabilities Act to persons institutionalized because of mental illness, the substantive and procedural aspects of the criminal incompetency inquiry and the insanity defense, the relationship between mental disability and sexually violent predator laws, and all aspects of the death penalty. Thousands of cases have been decided in every state in the nation dealing with similar issues. In fact, in the Supreme Court’s first modern mental disability law case – finding that the due process clause is implicated in all decisions related to both the nature and duration of the commitment process – it expressed surprise that there were not more mental disability law cases brought to its attention. However, a study of constitutional law, criminal procedure, civil rights and/or federal courts casebooks reveal virtually no mental disability law cases. Policies and practices of exclusion are not unique. By way of example, more than a decade ago, Toni Massaro pointed out that constitutional criminal procedure has been treated as a subject separate from basic constitutional law materials and courses. Mental disability law has been ghettoized in the same way that criminal procedure has been ghettoized. It is a ghettoization that in some ways is far more troubling than the criminal procedure ghettoization, since all law schools offer courses in basic criminal procedure, and these courses are regularly well-subscribed. On the other hand, there are courses in mental disability law offered only at about half of all American law schools, and, at many schools, those courses are offered infrequently and only by adjuncts (who often have no legal training). This ghettoization reflects a hard truth that has passed under the radar of most civil rights teachers and civil rights students. Mental disability law is simply not a topic taken seriously as a civil rights topic (or as a constitutional law topic or as a federal courts topic). And this failure of inclusion goes directly to the heart of the challenge of teaching mental disability law. It is hidden (nearly totally hidden) from the traditional law school curriculum. It is not in the curriculum at many law schools. It is largely invisible to students and professors alike. I believe this ghettoization is a reflection of the invidious sanism that permeates the legal academy in the same way it permeates the rest of society. Law teachers are not immune to sanism – an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. In this essay, I reconsider this ghettoization from four overlapping vantage points. First, I consider how mental disability law became a part of the law school curriculum, growing out of and largely supplanting courses in psychiatry and the law (and why this title change is not just a question of phraseology). Second, I discuss the significance of the notion that mental disability law can be cabined in one 2- or 3-credit course (implying that all mental disability law can be surveyed in that period of time, in a way that law school faculty would never think all tax law or real estate law or securities law could be so taught), and the significance of the reality that so many schools offer no course or only one course sporadically (often, without any involvement of a full-time faculty member). Third, I examine the Online Mental Disability Law program at New York Law School (where I teach) from four different perspectives: (a) the pedagogy, (b) the range of subject matters taught, (c) the interdisciplinarity of the students and the faculty, and (d) the internationality ofthe students and intersectionality of our course offerings. Finally, and most importantly, I explain why it is absolutely essential for any mental disability law course (or sequence of courses) to consider the concepts of sanism and pretextuality, the significance of ordinary common sense (OCS) and heuristic reasoning, and the impact of therapeutic jurisprudence

Yonder Stands Your Orphan with His Gun: The International Human Rights and Therapeutic Jurisprudence Implications of Juvenile Punishment Schemes

In the last decade, the US Supreme Court has ruled that the death penalty, a life sentence without possibility of parole (LWOP), and mandatory LWOP for homicide convictions violate the Eighth Amendment when applied to juvenile defendants. These decisions were premised, in large part, on findings that developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds, and that those findings both lessened a child\u27s moral culpability and enhanced the prospect that, as the years go by and neurological development occurs, his deficiencies will be reformed. These decisions have, by and large, been welcomed by juvenile justice advocates, as game-changing landmarks, and as reflecting a positive result for juvenile justice. However, none of these cases speaks directly to the case of the juvenile with mental illness or mental retardation who is incarcerated either in adult facilities or in juvenile facilities for lesser crimes or for less severe sentences than life-without-parole. Such incarceration, in many instances, violates international human rights law, and may violate the Eighth Amendment as well. In its juvenile death penalty/LWOP cases, the Supreme Court stressed that international human rights (IHR) law supported its decisions. However, the Court has, as of yet, not had the opportunity to consider the IHR implications of either (1) the routine housing of juveniles in adult jails and prisons, or (2) the disproportionate number of incarcerated juveniles - both in juvenile and in adult correctional facilities - with mental disabilities. In 2008, the UN Convention on the Rights of Persons with Disabilities (CRPD) was ratified. The Disability Convention furthers the human rights approach to disability and recognizes the right of people with disabilities to equality in most every aspect of life, calling for respect for inherent dignity and non-discrimination. This paper explores the relationship between the incarceration of juveniles with mental disabilities and international human rights law, especially the CRPD, and concludes that our current system - of warehousing juveniles with mental illness in juvenile detention facilities and reformatories, and in prisons following pre-adjudication transfers - violates international human rights law, including, but not limited to, the CRPD. It first considers data available on the mental status of incarcerated juveniles, with special attention to issues of race and gender. It next considers conditions of confinement faced by such juveniles, looking at how jails and detention facilities are increasingly relied upon to provide mental health services, albeit meager services and often counter-productive services, a deficiency exacerbated by current transfer/waiver policies. It then reviews the important international human rights documents that apply to the questions under discussion. Finally, it considers all these issues through the prism of therapeutic jurisprudence, with an eye towards specific remedies that might ameliorate the situation with which we are faced

Stereotypes and human rights law

The scope of the book includes different stereotyping grounds – such as race, gender, and disability. Moreover, this book examines stereotyping approaches across a broad range of supranational human rights monitoring bodies, including the United Nations human rights treaty system as well as the regional systems that are most developed when it comes to addressing stereotypes: the Council of Europe and the inter-American system