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.

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

"Minors’ Decision-Making Capacity to Refuse Life-Saving and Life-Sustaining Treatment: Legal and Psychiatric Perspectives" Free Download
Mendelson D & Heywood I, ‘Minors’ Decision-Making Capacity to Refuse Life-Saving and Life-Sustaining Treatment: Legal and Psychiatric Perspectives’ (2014) 21 Journal of Law and Medicine 762-772

DANUTA MENDELSON, Deakin University - School of Law
IAN HEYWOOD, Independent

The issue of capacity of minors to make medical decisions involving life and death tends to be discussed by lawyers with very scant reference to medical science. Yet, since the turn of the 21st century, scientific studies have demonstrated what the 18th century courts and philosophers accepted as given that children are different from adults not only in physical appearance but also their decision-making capacity. Unlike some other countries, Australian courts have demonstrated deep awareness of philosophical writings in this area, and a critical approach to the prevailing legal doctrines of the late 20th century. Their opinions are also in harmony with modern psychiatric knowledge.

The foregoing discussion will focus on legal and philosophical notions of refusal and consent. The development of the legal right to personal autonomy and the death-choice and the legal position of minors in Australia will be examined in the light modern scientific evidence relating to neuroanatomical development of brain in human beings. The Australian courts’ approach to refusal of life-saving & life-sustaining treatment by minors, in particular, the case of X v The Sydney Children's Hospitals Network [2013] NSWCA 320 will be analysed in the context of immaturity of brain on medical decision-making of minors, in particular, the life and death decisions.

"Proactive Protection: How the IDEA Can Better Address the Behavioral Problems of Children with Disabilities in Schools" Free Download
1 Belmont Law Review 311 (2014)

PATRICK OBER, Belmont University - College of Law

The Individuals with Disabilities Education Act (“IDEA?) needs to be amended to proactively promote positive behavioral interventions and reduce unnecessary and highly dangerous uses of restraint and seclusion. The IDEA purports to advance these goals, but in reality the relevant provisions of the IDEA require behavioral plans only as a reactionary measure to violent or disruptive behavior. This Note proposes an amendment to the IDEA to address these problems proactively.

"Reality Over Ideology: A Practical View of Special Needs Voucher Programs" Free Download
Capital University Law Review, Vol. 42, No. 1, 2014

ELIZABETH USMAN, Belmont University - College of Law

In many school systems across the country, children with disabilities are not receiving the education that they are entitled to by law and need in order to reach their full potential. Although there are certainly triumphant examples of school systems that have succeeded in supporting students with special needs, there are unfortunately far too many examples of neglect, misunderstanding, and, ultimately, failure across the country. Into this struggling system emerges an expanding and difficult challenge that only adds further pressure. Due to the growing numbers of children diagnosed with Autism and the level of expertise required to deal with many of the symptoms of this disorder, educating children with Autism has become a particularly pressing issue for both the school systems and the families of children with this disorder.

Confronting this struggling system to which additional pressure is being added, some state legislatures have proposed a dramatic rethinking of how to most effectively educate children with special needs. A number of state legislatures have moved forward with voucher programs that allow the families of disabled students to forgo public school and instead use public funds for a private school program that the family deems a better alternative for the student's needs. While most of these programs cover children with disabilities generally, a small number of these proposals have been Autism-specific.

Much of the debate surrounding these programs has been politically charged, with proponents of universal school voucher programs lauding these programs and teacher's associations posing opposition. There has also been significant debate and division within the disability community itself about the merits of these programs.

The legal academy, however, has spent little time examining this legislative solution to the disability education problem. Moreover, the scholarly work that has engaged with this issue shares a fundamental flaw: failure to recognize that an imperfect solution may still be the best solution available.

This Article seeks to evaluate the advantages and disadvantages of special needs voucher programs within the context of the reality facing families of children with special needs. This Article will focus on how these programs affect the education of children with Autism because it is difficult to evaluate these programs without a more concrete context. This Article focuses on the pressing problem associated with educating the growing population of students with Autism, evidenced by the fact that some proposed voucher programs are specifically targeted for and limited to children with Autism.

Part II will give a brief definition of Autism Spectrum Disorders and then describe the harsh reality that many families of children with Autism face when trying to educate their children in public school systems. Part III will survey the existing special needs voucher programs that have been created in response to problems in the public school systems.

With that context in mind, Part IV will examine commentators' criticisms of special needs voucher programs and will strive to evaluate those critiques without ignoring the reality that exists for children with disabilities, such as Autism, in many public school systems around the country. This Part will conclude that, while there are some valid concerns, ultimately the programs still give children with disabilities, particularly children with Autism, and their families a better option than is available to them in public school systems.

Part V will suggest that there is an underlying, fundamental reason that opening up a private school option to children with serious special needs, such as Autism, offers a better policy solution to this complex and growing problem: because it allows both the school and the family of the child to choose one another. This element of choice allows a beneficial and trusting relationship to form between the school and the family, something that is unfortunately missing in some public school systems that are required to educate students with special needs. This overlooked and unappreciated aspect of the relationship between the school and the family is explored in a manner that illuminates the enormous significance that the relationship plays in accomplishing the difficult task of providing an appropriate individualized education.

Finally, Part VI will explain how the issue of special needs voucher programs has created a debate among partisan interest-group politics and will argue that politicizing the issue has turned what should be an open exploration of a creative solution to a serious problem into a symbolic battle of ideological purity.

"Deprivation and 'Deviance:' Disability and Criminality in Women's Prisons in North Carolina" 
North Carolina Law Review, Forthcoming

CARRIE GRIFFIN BASAS, Harvard University - Law School - Alumni, University of Washington - College of Education

Awareness about the vulnerability of people with disabilities within society is increasing -- from the recent inclusion of disability as a tracked category within hate crimes reporting to the tacking on of sentence time in vulnerable victims cases. However, a critical piece is missing in this discussion of what disability’s ripple effects can be: the nexus between disability and imprisonment. Disability and criminality have been longtime companions in identifying “deviant? behavior but this Article relies on an empirical study of approximately 1,000 women inmates in state prisons in North Carolina to explore how disability is more accurately defined as a systemic lack of access to health and educational resources.

"What's Bad About Wellness?" 
Journal of Health Politics, Policy and Law, Vol. 39, No. 5, 2014

CARRIE GRIFFIN BASAS, Harvard University - Law School - Alumni, University of Washington - College of Education

With great interest, employers in the United States are using wellness programs to reduce insurance costs and monitor the health of their employees. While these programs are often embraced as benign in their assessments and positive in their outcomes, this perspective fails to consider the discriminatory effects on people with disabilities. The case of Seff v. Broward County in 2012 addressed the question of whether wellness programs violated the Americans with Disabilities Act (ADA). Finding a safe harbor in the ADA for bona fide insurance plans, the court concluded that the initiative did not violate the act, even though employees were penalized monetarily. This article argues that wellness programs institutionalize disability bias and a false perception of health attainability. People with substantial physical or mental impairments will not be able to control many aspects of their health, even with concerted efforts. Embedded in this approach is the notion of responsibility for and control over all aspects of one’s health, including disability. This kind of orientation further perpetuates a neoliberal approach to society where autonomy trumps community-based supports and acceptance of differences.


About this eJournal

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

This eJournal distributes working and accepted paper abstracts which address issues of domestic, comparative, and international disability law and policy and disability studies, including  issues related to mental health and mental disability law and policy. The eJournal addresses legal issues, legislation, policy and a critical examination of disability as part of diversity in the US and in other societies throughout the world.


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