A Worsened Discrimination

Southern University Law Review Vol. 46 , 2019

39 Pages Posted: 5 Jan 2021

Date Written: January 1, 2019


Persons with mental illness and physical disabilities in solitary confinement often suffer exacerbated symptoms. Outside of the solitary confinement context, many people with such conditions find their symptoms worsened by government conduct in various other ways, such as lack of proper treatment, harassment, and physical assaults. These events and harms are often not addressed under the ADA. Instead they are addressed under other constitutional, common law, and statutory schemes. However, looking at these situations under the ADA would have numerous benefits. Therefore, this article seeks to fill the gap left by the current interpretations of the ADA. It argues that the exacerbation of disabilities and symptoms related thereto, by public entities, constitutes a form of discrimination by reason of such disabilities.

While the ADA does not specifically mention the exacerbation of disabilities as a form of discrimination, cases, such as Olmstead, shed light on how courts may identify new forms of discrimination. In Olmstead, the Court looked to, inter alia, the history of societal ills that persons with disabilities faced, the purposes Congress hadin mind when it passed the ADA, and the text of the ADA that invited such an interpretation.

Using the above tripartite method of analysis, this article shows that where government conduct exacerbates disabilities or symptoms related thereto, such conduct is a form of discrimination in violation of Title II of the ADA—the title that relates to public entities. First, government conduct that exacerbated disabilities was a prominent social ill that persons with disabilities faced leading up to and after the passage of the ADA. Second, to find that exacerbation of disabilities is a form of discrimination under the ADA would help fulfill and address the general purposes and findings that congress had in enacting the ADA. Third, and finally, the text of the ADA invites an interpretation that exacerbation is a form of discrimination.

While this article uses exacerbation in prisons as a pedagogical device to illustrate its thesis, one should not construe this article as arguing exacerbation discrimination only applies in the prison context, nor should one construe it as suggesting that other aspects of the ADA do not also apply in such contexts.

Suggested Citation

Warden, Derek, A Worsened Discrimination (January 1, 2019). Southern University Law Review Vol. 46 , 2019, Available at SSRN: https://ssrn.com/abstract=3730767

Derek Warden (Contact Author)

Louisiana Supreme Court ( email )

400 Royal Street
New Orleans, LA 70130
United States

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