- Arlene S. Kanter (Syracuse University College of Law), “Reframing the Right to Equality for People with Disabilities”
- Ravi Malhotra (Faculty of Law, Common Law Section, University of Ottawa), “The United Nations Convention on the Rights of Persons with Disabilities in Canadian and American Jurisprudence”
- Freya Kodar (Faculty of Law, University of Victoria), “Exploring the Accommodation Gap: Pensions and Income Security for Persons with Disabilities in Canada”
- Stephen A. Rosenbaum, (Berkeley Law, University of California, Berkeley), “Une Procédure en Difficulté: A Radical Blueprint for Resolving “Special” Education Disputes through an Inquisitorial Process”
- Aloke Chatterjee (Faculty of Law, University of New Brunswick), “Can We Advance Disability Rights through the Class Action?”
- Mark Weber (DePaul University, College of Law), “Immigration and Disability in the United States and Canada”
- Carrie Griffin Basas (Appellate and Civil Rights Attorney, Seattle, WA, M.Ed Candidate, University of Washington), “Advocacy Fatigue: Self-Care, Disability Discrimination, and Legal Attrition”
- Bonnie M. Lashewicz & Eniola Salami, BHSc., Department of Community Health Sciences, University of Calgary (University of Calgary), “More than meets the eye: Relational autonomy and decision-making by adults with disabilities”
- Elizabeth Pendo (Saint Louis University School of Law), “Disability and Health Care”
- Laverne Jacobs (University of Windsor, Faculty of Law | Berkeley Law, University of California), “Do Disabled Voices Make a Difference?: Exploring Equality and Fairness in the Enactment of Accessibility Standards in Ontario”
- Arlene S. Kanter (Syracuse University College of Law), “Reframing the Right to Equality for People with Disabilities”
The social model of disability recognizes the obligation of societies to address the rights of people with disabilities by removing legal, attitudinal and physical barriers to their inclusion in society. This view stands in contrast to other models of disability which focus on people with disabilities as in need of charity, pity, or medical treatment. The most notable example of a human rights law that incorporates the social model of disability is the new Convention on the Rights of People with Disabilities (CRPD), which was adopted by the United Nations in 2006 and which has now been ratified by 151 countries. This treaty represents a new era in the development of disability rights. It challenges policy makers, scholars, advocates, and activists to reframe the meaning of equality for people with disabilities. Despite the development of existing regional and domestic laws that seek to protect the rights of people with disabilities to equality, significant gaps remain in the level of employment, access to education and health care, social acceptance, and the overall quality of life for children and adults with disabilities in the US and other countries throughout the world. After reviewing the history of the development of domestic and regional disability laws as well as the CRPD, I will argue that in order to realize the goal of inclusion and acceptance for people with all types of disabilities, countries such as the US should rethink their commitment to traditional notions of equality and independence, and instead consider theories that have been developed within the field of disability studies to inform the development of a new disability rights jurisprudence, particularly as it relates to, what I call, a new right to interdependence and support.
- Ravi Malhotra (Faculty of Law, Common Law Section, University of Ottawa), “The United Nations Convention on the Rights of Persons with Disabilities in Canadian and American Jurisprudence”
This paper seeks to explore how the Convention on the Rights of Persons with Disabilities (CRPD) has been applied in Canadian and American law. Coming into force in 2008 and ratified by Canada in 2010, the CRPD was the fastest negotiated international treaty in history. Yet it has not been ratified in the United States. The CRPD sets out various rights including with respect to education, health and work and employment. Using the work of Harold Koh and Melissa Waters on transnational judicial dialogue, I examine how the CRPD has been applied in the case law and assess its potential for social transformation in the two countries. I explore whether we may ultimately see a convergence between domestic disability rights law in Canada and the United States and the principles enunciated in the CRPD. While CRPD jurisprudence is in its infancy, I also consider why the CRPD to date has seemingly had more purchase in Canada than in the United States, specifically analyzing the competing schools of thought relating to the legal requirements for treaty implementation. I suggest, however, that the entire history of disability rights in Canada has always been influenced by international developments since at least the 1970s. This contrasts with the much more domestic orientation of activists with disabilities who fought for increased wheelchair access in the aftermath of the Vietnam War and later the adoption of the Americans with Disabilities Act of 1990. This more overt international orientation in Canada has implications for future judicial attitudes toward interpretation of the CRPD.
- Freya Kodar (Faculty of Law, University of Victoria), “Exploring the Accommodation Gap: Pensions and Income Security for Persons with Disabilities in Canada”
Canadian scholars and policy-makers have identified a significant “accommodation gap” for persons with disabilities participating in the Canadian labour force, and suggest that as the population ages this gap is likely to grow. While much has been written about measures to improve disability accommodation in the workplace, less attention has been paid to the retirement security implications of this accommodation gap. This paper explores these implications in two contexts: the Canada Pension Plan (CPP), a near universal employment-related contributory defined benefit pension plan, and the private workplace disability benefits schemes, which provide disability benefits before regular retirement age (currently age 65) when workers begin to draw their pension benefits. This paper turns a critical disability lens on these inter-related disability benefits systems to investigate whether they are (1) creating retirement insecurity for people with disabilities who have participated in the labour force; and (2) facilitating workplace accommodation gaps.
- Stephen A. Rosenbaum, (Berkeley Law, University of California, Berkeley), “Une Procédure en Difficulté: A Radical Blueprint for Resolving “Special” Education Disputes through an Inquisitorial Process”
Adversarial adjudication as a means for resolving education disputes at the administrative level, viz., determining the appropriate array of interventions and services for students with disabilities, has had many critics over the years. Asking a judge to weigh the parent and student’s legal position under the US Individuals with Disabilities Education Act (IDEA) against that of the school administration may not be the optimal method for designating a pupil’s instructional program—nor a good use of time and money.
In this paper, I lay out a blueprint for radical change, looking for inspiration in part to Canada for the inquisitorial model reflected in some of its provincial proceedings, and to the role of educators as tribunal members (as they sometimes are in special ed hearings concerning les enfants en difficulté). Could this be a better approach than an “agency trial”? It may be heresy for a students’ attorney to argue that the voice of the disabled youth and her family should not be on equal footing with that of the educational professional, nor should law be privileged over pedagogy. However, there would still be a place for informal dispute resolution, at the IEP (Individual Educational Program) table or at mediation, as well as ardent advocacy (both micro and macro) by parents and students—and an appeal to a court of law in limited circumstances. The savings in time, cost and angst could be channeled instead into more applied research, hiring local district experts, parental involvement inside and outside the classroom, and genuine collaboration between families and professional educators. A provocative concept for consideration? I hope so.
- Aloke Chatterjee (Faculty of Law, University of New Brunswick), “Can We Advance Disability Rights through the Class Action?”
Despite the inclusion of disability as a prohibited ground of discrimination in both the Canadian Charter of Rights and Freedoms and the various Canadian human rights codes, disability advocates in Canada have had only mixed results in advancing the full inclusion of persons with disabilities through litigation. This puzzle has led some commentators to focus on how disability differs from other prohibited grounds of discrimination, to argue for the reformulation of the substantive law of discrimination, and even to question the utility of rights in the first place. By contrast, I seek to understand the puzzle through the lens of procedure. In this paper, I assess the suitability of the class action as a vehicle for advancing disability rights.
Here, as in other contexts, I maintain that procedural adjudication has emerged as an important site for the legal construction of disability and vulnerability and that judicial discretion at these sites has been exercised contrary to Charter values and human rights principles. Hence, I reluctantly conclude that the class action holds less promise for advancing disability rights than is conventionally thought.
- Mark Weber (DePaul University College of Law), “Immigration and Disability in the United States and Canada”
Disability arises from the dynamic between people’s physical and mental conditions and the physical and attitudinal barriers in the environment. Applying this idea about disability to United States and Canadian immigration law calls attention to barriers to entry and citizenship for individuals who have disabilities.
Historically, North American law excluded many classes of immigrants, including those with intellectual disabilities, mental illness, physical defects, and other conditions thought likely to cause dependency. Though exclusions for individuals likely to draw excessive public resources and those with communicable diseases still exist in Canada and the United States, in recent years the United States permitted legalization for severely disabled undocumented immigrants already in the country, and both countries abolished most exclusions from entry for immigrants with specific disabling conditions. Liberalization also occurred with regard to citizenship requirements.
Problems continue, however. Under United States law, effectively unreviewable discretion remains with regard to the likely-public-charge exclusion, because consular officers abroad decide unilaterally whether to issue immigrant visas. Moreover, conduct related to mental disability, including petty criminality, can result in removal from the United States, and individuals with mental disabilities have few safeguards in removal proceedings. In Canada, the federal court recently upheld an order of deportation for a family of immigrants from France that included a child with a severe disability, rejecting appeals on humanitarian grounds. Similar cases are pending. The relaxation of exclusions and of requirements for citizenship illustrates a significant, though conspicuously incomplete, removal of disability-related barriers in North American law and society.
- Carrie Griffin Basas (Appellate and Civil Rights Attorney, Seattle, WA, M.Ed Candidate, University of Washington), “Advocacy Fatigue: Self-Care, Disability Discrimination, and Legal Attrition”
The need for self-advocacy and community organizing is a constant in the lives of people with disabilities. In enforcing their rights under civil rights laws, people with disabilities are drawn into a game of attrition through litigation—where their limited economic means, community supports, and physical and mental resources are leveraged against them as they have to choose between basic needs and broader policy changes and legal justice for all. This phenomenon can best be described as “advocacy fatigue.” I define advocacy fatigue as the increased strain on emotional, physical, material, social, and wellness resources that comes from continued exposure to system inequities and inequalities and the need to advocate for the preservation and advancement of one’s rights and autonomy. Advocacy fatigue can diminish emotional and physical health, career prospects, and financial security because of the ongoing exposure to stress and discrimination.
While this concept has been explored in part under the term “compassion fatigue” in fields such as social work, teaching, and nursing, I view it broadly and inclusively. Other scholars have focused their work on the negative effects of crisis and care-giving on professionals paid to do that kind of work.
While those concerns should inform public policy and professional training, this kind of emphasis on providers has left out the traumas that come from reliving discrimination and being placed in a disadvantaged position in an adversarial system that views disability rights as the bestowal of charity.
Using a disability studies perspective, I will first define advocacy fatigue, drawing on such fields as psychology, gender studies, critical race theory, and socio-legal studies. Then, I will show how concerns in the professional literature around care-giving have reinforced views of people with disabilities as the sources of problems, rather than the bearers of them. I will conclude by presenting examples of advocacy fatigue in action in education, work, and healthcare, and offer strategies for better capturing and responding to this experience in the United States and Canada.
- Bonnie M. Lashewicz (University of Calgary) and Eniola Salami, BHSc., Department of Community Health Sciences, University of Calgary, “More than meets the eye: Relational autonomy and decision-making by adults with disabilities”
Bonnie Lashewicz, PhD., Department of Community Health Sciences, University of Calgary
Eniola Salami, BHSc., Department of Community Health Sciences, University of Calgary;
In Canadian law, the concept of autonomy is individualistic in nature, manifest as the capacity, or legal ability of an individual to actively understand the purpose and consequences of their actions, including through comprehending and weighing risks and benefits (Conway, 2012). Ethicists and feminist scholars critique such conceptualizations of autonomy and instead, argue the importance of “relational autonomy” which is predicated on the view that actions result from one’s own volition in combination with the influence of one’s social and relational connections. In this paper, we examine the dynamics and implications of relational autonomy in decision making by adults with disabilities by studying adults with disabilities in interaction with their caregiving family members. Our purpose is to contribute understandings of how and in what ways family caregiving relational contexts both support and hinder decision-making by adults with disabilities. We begin with an overview of conceptualizations and applications of autonomy, then illustrate relational autonomy dynamics through comparative analysis of data from two women with disabilities who were interviewed together with their family caregivers
about successes and struggles in giving and receiving support and making decisions. These two women, and their family caregivers (N=9) are selected from a larger sample of adults with disabilities and their family caregivers (N = 55) because both the contrasts and the similarities between their situations are striking, and taken together, illustrative of a range of ways in which decision making is supported and hindered. We conclude by upholding the importance of relational autonomy for legal understandings of decision-making yet we caution that critical examination of relationship dynamics is vital.
- Elizabeth Pendo (Saint Louis University School of Law), “Disability and Health Care”
Maintaining health and wellness is vital to experiencing a full life, maintaining independence, and participating in society. Unfortunately, nearly 25 years after the passage of the Americans with Disabilities Act, people with disabilities face multiple barriers to adequate health care and report poorer health status than people without disabilities. These persistent and pervasive inequities have serious consequences for the health and well-being of millions of people.
When disability-based barriers, disparities, and discrimination in the health care system have been addressed, the predominant approach has been through the Rehabilitation Act and the Americans with Disabilities Act. However, the ADA has not been as helpful as hoped in addressing these challenges. While the right to nondiscriminatory access to health care provided by the ADA can and should be protected, it is worth exploring additional and complementary ways to support and advance those same goals. The Patient Protection and Affordable Care Act of 2010 (ACA), offers new tools, as it contains several provisions aimed at improving access to health care for people with disabilities.
This paper will outline the key health disparities and barriers to care experienced by people with disabilities in the U.S., and examine the promise and progress of the ADA in addressing those inequities. It will also explore the challenges that remain, and recommend how the ADA and ACA might work together to improve the health and health care of patients with disabilities.
- Laverne Jacobs (University of Windsor, Faculty of Law | Berkeley Law, University of California), “Do ‘Disabled’ Voices Make a Difference?: Exploring Equality and Fairness in the Enactment of Accessibility Standards in Ontario”
Rights adjudication occupies a large part of public law analysis and theorizing. At the same time, using adjudication to achieve equality, particularly to vindicate the rights of persons with disabilities, has proven to be a formidable and often dissatisfying exercise. This paper shifts the focus from rights adjudication to the law-making process as a means of providing access to justice, and uses the development of accessibility standards in Ontario as a case study. Since the enactment of the Accessibility for Ontarians with Disabilities Act in 2005, the Ontario government has been working towards instituting a proactive approach to regulating disability discrimination, with the goal of full accessibility in the province by 2025. A central and unique feature of this legislation is the required inclusion of persons with disabilities and various stakeholders in a legislated consultation process used to develop the accessibility standards themselves. The Ontario legislation has been followed in Manitoba which has enacted legislation to provide comparable accessibility standards through a similar process.
When faced with the prospect of creating accessibility standards for persons with disabilities, how should governments respond to ensure the valorization of human rights? Has including a role for persons with disabilities in standard development committees led to a perception of fairness in standards development? Using government records obtained through freedom of information requests, qualitative interviews with persons with disabilities and other key actors, as well as theoretical analysis, this study examines the ways in which government mediates the equality rights claims of persons with disabilities and the competing interests of other stakeholders in the accessibility standard-setting process. It aims ultimately to theorize about how persons with disabilities and multi-interest government-appointed committees may interact effectively to further minority rights.