The eJournal is sponsored by the Syracuse University College of Law Disability Law and Policy (DLP) Program of the Syracuse University Center on Human Policy, Law, and Disability Studies (CHPLDS). The DLP Program sponsors a range of law school academic programs and co-curricular activities, including the first joint degree program in law and disability studies. The Program is part of the CHPLDS which is the first such university-wide network of academic programs, centers, student organizations, and affiliated faculty whose research, teaching, and advocacy promotes the rights of people with disabilities locally, nationally, and globally.

Table of Contents

The Disorganised Nature of European Disability: Rethinking Protection for HIV Positive Individuals

Peter McTigue, Nottingham Trent University

Processing Disability

Jasmine E. Harris, American University Washington College of Law

HIV, High School, and Human Rights: Putting Faces on the Failure to Protect HIV Positive Youth from Bullying and Discrimination at School

Jonathan M. Graham, Florida International University (FIU) - College of Law

'Old Age' (Or Do We Need a Critical Theory of Law and Aging?)

Margaret Isabel Hall, Thompson Rivers University - Faculty of Law, University of British Columbia (UBC) - Interdisciplinary Studies Graduate Program

Sponsored by Syracuse University Disability Law & Policy (DLP) Program

"The Disorganised Nature of European Disability: Rethinking Protection for HIV Positive Individuals" Free Download
CELLS Online Paper Series Volume 3, Issue 4

PETER MCTIGUE, Nottingham Trent University

Despite the fact that there are approximately 80 million individuals with disabilities within the EU, there is no coherent definition of disability. There is also no clear consensus amongst Member States as to the question of whether People Living with HIV/AIDS ("PLHA") should be defined as "disabled" and thus acquire the various legal protections associated with such a designation. This paper will argue that in order to adequately protect PLHA within the EU, the European Court of Justice ("CJEU") need to ensure that a coherent EU wide definition of disability based upon the social model of disability is adopted. Such a definition is necessary in order to ensure adequate protection not only for PLHA but for all individuals from disability discrimination throughout the EU. In addition to this central argument, this paper will also argue that the lack of a coherent definition of disability grounded in the social model fragments protection for PLHA across the EU leading to a number of possible unintended consequences.

PLHA may seem a strange choice of focus but, in some ways, PLHA represent the "front line" in the ideological battle concerning the definition of disability at an EU level and the question concerning the relationship between sickness and disability as will be seen by the Advocate General’s opinion in the recent HK Danmark (Ring and Skouboe Werge) case concerning unlawful discrimination within employment.

"Processing Disability" Free Download
Forthcoming, American University Law Review, Vol. 64, 2015
American University, WCL Research Paper No. 2014-39

JASMINE E. HARRIS, American University Washington College of Law

This Article argues that the practice of holding so many adjudicative proceedings related to disability in private settings (e.g., guardianship, special education due process, civil commitment, and social security) relative to our strong normative presumption of public access to adjudication may cultivate and perpetuate stigma in contravention of the goals of inclusion and enhanced agency set forth in antidiscrimination laws. Descriptively, the law has a complicated history with disability — initially rendering disability invisible, later, legitimizing particular narratives of disability synonymous with incapacity, and, in recent history, advancing full socio-economic visibility of people with disabilities. The Americans with Disabilities Act, the marquee civil rights legislation for people with disabilities (about to enter its twenty-fifth year) expresses a national approach to disability that recognizes the role of society in its construction, maintenance, and potential remedy. However, the ADA’s mission is incomplete. It has not generated the types of interactions between people with disabilities and nondisabled people empirically shown to reduce the information problem and deconstruct deeply entrenched social stigma. Prescriptively, procedural design can act as what I call an “antistigma agent? to resist and mitigate disability stigma. This Article focuses on one element of institutional design, public access to adjudication, as a potential tool to construct and disseminate counter-narratives of disability. The unique substantive focus in disability adjudication on questions of agency provides a potential public space for the negotiation of more nuanced definitions of disability, capacity, and competence reflective of the human condition.

Legal scholars have written extensively about the limitations of antidiscrimination laws to respond to social stigma. Disability scholars, in particular, have offered prescriptive proposals for substantive legal reforms in welfare, tort, and health law to respond to such limitations. While advancing important prescriptions for disability law, they do not directly address the tenacity and pervasiveness of disability stigma in the public consciousness, a proven impediment to successful implementation of progressive legislation. I build upon the work of proceduralists focused on advancing utilitarian values and argue that intentional design — informed by social science — offers a significant opportunity to “process disability,? that is, to foster the autonomy and dignity of people with disabilities, and construct and disseminate these counter-narratives in the public arena.

"HIV, High School, and Human Rights: Putting Faces on the Failure to Protect HIV Positive Youth from Bullying and Discrimination at School" Free Download
35 University of La Verne Law Review 267, July 2014

JONATHAN M. GRAHAM, Florida International University (FIU) - College of Law

In HIV, High School, and Human Rights, scholar Jonathan Graham focuses on two U.S. cases involving peer bullying and discrimination in school admissions against HIV-positive youth. These two cases illustrate the failure of the U.S. to comply with international human rights norms, including children’s rights to special protection, privacy, education, and non-discrimination.

The article addresses current flaws in our approach to how HIV-positive students are integrated into the school environment, highlighting the legal ramifications of those failures. The case law is more developed with respect to anti-gay bullying. Because of the relatedness of the two types of bullying, and because the framing of HIV issues often borrows language from the gay rights movement, lessons drawn from anti-gay bullying cases can be applied to cases of HIV-related bullying. In discussing these issues, the article will adopt a critical international human rights perspective when examining the two cases and will recommend changes and reforms in the law which are of domestic as well as international application. At a basic level, the human rights approach seeks to integrate human rights standards into every aspect of decision making.

The article breaks with current scholarship in two ways: first, the article recognizes that the case law related to discrimination and bullying of HIV-positive youth is limited. Jurisprudence from anti-gay bullying cases can bridge the two areas of case law, due to the relatedness of discrimination based on HIV and sexual orientation, as established by social science research. Second, the article advocates the use of a strong human-rights-based approach for the analysis of these childrens’ rights issues, drawing on established international norms as a basis for critiquing the performance of domestic courts and legislatures. The article argues that the dilemma of how to treat HIV-positive youth in schools should not be about what qualifies as a disability, or about avoiding tort liability, but should be focused on the fundamental human rights inherent in each child affected by this epidemic. Courts should give great deference to human-rights-based policy arguments in deciding future HIV discrimination cases.

Part I offers an introduction to the human-rights-based approach, and its subparts discuss sources of law that affect the rights of HIV- positive youth. The article provides background information on international conventions dealing with the rights of HIV-positive youth, and on federal laws which purport to protect HIV-positive youth from discrimination. The article will focus on the domestic cases involving Paige and Abraham as examples of how current law fails to adequately protect students from HIV-related discrimination. Part I discusses the Convention on the Rights of the Child and other international sources of law, the Americans with Disabilities Act, and Title IX, including school liability for acts of bullying and harassment that occur off campus or outside of school personnel’s direct supervision. Part I also discusses various state statutes concerning HIV- positive youth, including statutes that require schools to be notified of positive HIV-test results, and statutes that address bullying.

Part II revisits Paige and Abraham’s cases, and analyzes the performance of the domestic courts in achieving recourse for these plaintiffs. This Part offers a critical comparison of how these cases measure up to the international human rights norms elaborated in Part I. In Abraham’s case in particular, the defendant school asserted novel defenses to his claims and this part examines the legal viability of these defenses, including the school’s claim that Abraham posed a direct threat to other students because of the possibility of him transmitting HIV to other students through sexual activity. Part II discusses several related incidents of the failure of American schools to properly respect children’s rights, including the failure to respect students’ privacy and the possibility of media hysteria stemming from HIV-related incidents at a school. Part II discusses the trend of criminalizing certain acts of HIV-positive individuals and how these laws relate to HIV-positive youth.

Part III suggests recommendations to better handle and appropriately recognize the rights of HIV-positive youth in schools. Part III compares the use of the courts with other forms of implementing social change, and discusses recommendations regarding anti-bullying statutes and pro-education policies to combat the bullying epidemic.

"'Old Age' (Or Do We Need a Critical Theory of Law and Aging?)" Free Download
(2014) 35 Windsor Review of Legal and Social Issues 1, 2014

MARGARET ISABEL HALL, Thompson Rivers University - Faculty of Law, University of British Columbia (UBC) - Interdisciplinary Studies Graduate Program

“Old age? matters, for the purpose of meaningful public response, as a special cluster of vulnerabilities arising through, consequent on, and particular to embodied oldness (in which the social and the corporeal are iteratively entangled). On this basis, a chronological marker for “old age? is incoherent (“old age? happens at different times for different people). The difficult legal question is how law (with its emphasis on certainty and consistency) can recognise and respond to “old age? understood as embodied and particularly situated; the author provides two models for doing so, in two different areas of law/policy where the invisibility of old age difference is problematic and where appropriate and effective response is possible.


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