Transforming the Culture: The Visibility of Disability in the Humanities

Produced by Hawai'i University Affiliated Program on Disabilities, University of Hawai'i at Manoa, Honolulu, Hawai'i and Sawyer School of Management, Suffolk University, Boston, MA

Reading Alexander V. Choate Rightly: Now is the Time

Whatever happens to the Affordable Care Act (ACA) over the next few years, it is fair to assume that state Medicaid programs will be subjected to cost control measures. Despite the recent deployment of substantial arguments to the contrary, the belief still persists that the Supreme Court’s decision in Alexander v. Choate over thirty years ago stands for the proposition that disability anti-discrimination law does not impose requirements on the structure of Medicaid benefits. This belief is misleading at best. In this article, we challenge the access/content distinction and the straitened interpretation of Alexander v. Choate that has resulted from it. We then use cases drawn from education to point the way to a more robust analysis of meaningful access to health care and the constraints it places on the design of state Medicaid programs

Perspectives on the Meaning of Disability

The meaning of “disability” has shifted with changes in public policy. Half a century ago, Congress was convinced that narrow determinations of disability are easy for physicians to make. But with the advent of universal civil rights protection against disability discrimination in the US, deciding whether particular individuals are disabled became increasingly contentious, until Congress intervened. What should now be addressed in each case is not whether the functionally compromised person is severely disabled enough to exercise a right, but whether mitigating interventions and reasonable accommodations can together achieve equitable access for that person

Justice through trust: disability and the Outlier problem in Social Contract Theory

Journal ArticleThe article focuses on the flaws of the social contract theory. It explores how hostile the social contract as a bargaining process has been thought to distance disabled people from contract-based justice. It analyzes the argument that the history of social contract theory exclude the people with disabilities from contracting process that gives rise to justice. It addresses the political progressiveness in contracting through a trust culture rather than bargaining culture

A wrongful case for parental tort liability

Journal ArticleMalek and Daar [M&D] argue that parents have a duty to employ prenatal genetic diagnosis (PGD) if they undergo IVF knowing they are at risk of transmitting a serious genetic condition. Although M&D limit their analysis to parents already undergoing PGD, in which they say the parental obligation is strongest because the benefits are significant and the parents' burdens small, they make clear that the overall structure of their analysis is applicable to parental decisions generally

No disability standpoint here!: law school faculties and the invisibility problem

Journal ArticleEndeavors to increase diversity in higher education invite many questions, including concerns about consistent and categorical application of the motivating values. For example, do law schools, and especially elite law schools, do enough to promote inclusiveness in the legal profession if their efforts are limited to admitting students from underrepresented minorities and not equally striving for similar diversity among the faculty? Where the students are diverse but the teachers are not, inclusiveness does not seem to rise to the level of a genuinely embraced value. The imbalance between the homogeneity of law school faculty and the diversity of law school students signals that while members of minorities may be capable of learning the law, they are unlikely to become sufficiently proficient to teach it. And further, homogeneity in the ranks of the professoriate suggests that assimilation is necessary for those who aspire to be acknowledged as proficient

Disability, Equal Protection, and the Supreme Court: Standing at the Crossroads of Progressive and Retrogressive Logic in Constitutional Classification

This Article compares current disability jurisprudence with the development of sex equality jurisprudence in the area of discrimination. It demonstrates that current disability law resembles the abandoned, sexist framework for determining sex equality and argues that disability equality cases should receive similar analysis as the more progressive, current sex equality standard. As such, the Article attempts to synthesize case law (l4th Amendment Equal Protection jurisprudence) and statutory law (Title VII and the ADA) into a comprehensive overview of the state of current disability law viewed within the context of discrimination law in general