Faculty Scholarship Digest

December 2015

On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise.


Article

Ruth Colker, Blaming Mothers: A Disability Perspective, RETHINKING SCHOOLS, Winter 2015-16, at 32.

Ruth packs a lot of content into this short piece for Rethinking Schools, a magazine devoted to sustaining and strengthening public education. To start, Ruth draws upon her multi-jurisdictional study of special education cases to describe ways in which schools blame the mothers of disabled children rather than providing the services that the law requires. She also notes the more cooperative tone that districts assume when a parent is able to retain a lawyer to assist with the special education process. At the same time, Ruth acknowledges the limited resources that constrain most public school districts; she also faults the “divide and conquer mentality” of a law that purports to offer individualized education to students who satisfy “an artificial definition of ‘disability’” while leaving other students to flounder in unresponsive classrooms.

Based on her extensive scholarship and practice in this area, Ruth then proposes four pragmatic steps to improve the special education process. First, schools can use teacher training periods to teach school officials how to write effective individualized education plans for their disabled students. Second, they can harness the same training time to show teachers “how to incorporate principles of universal design into the classroom so that education is better geared toward students with disabilities.” Third, districts can arrange classroom schedules to facilitate teacher collaboration. Finally, all teachers and administrators can speak up when they see others treating families or children without appropriate respect and dignity. “Although structural reform is sorely needed in our public education system,” Ruth concludes, “we do not have to wait until structural reform takes place to treat each other with dignity and respect at all times.”


Books

RUTH COLKER, FEDERAL DISABILITY LAW IN A NUTSHELL (5th ed. 2015).

Students, lawyers, educators, employers, disabled persons, and many others will welcome Ruth’s fifth edition of a nutshell on federal disability law. Although the book “is not intended to serve as a substitute for thorough analysis and examination of the very complex laws at issue,” it offers an extraordinary overview of those laws. Ruth writes succinctly and engagingly about every aspect of federal disability law, from the purchase of new railroad cars to the provision of interpreters for students attending private religious schools. Disability-related issues arise in many practice areas, making this book a useful guide for a wide range of law students and lawyers.

In the introduction, Ruth also reminds us why society has struggled to eliminate discrimination based on disability. Some of our discrimination stems from the discomfort we feel around people with disabilities; other bias reflects a “benevolent paternalism” that “displays a lack of respect for, and fails to recognize the dignity of, people with disabilities.” Our society has also “attached unpleasant stigmas to disabling conditions.” Finally, we have relegated disabled individuals to second-class status through “benign neglect.” Fortunately, these attitudes are starting to change—aided greatly by Ruth’s prolific scholarship in the field. The world is taking notice: this edition of Ruth’s work will be translated into Korean!


EDWARD B. FOLEY, BALLOT BATTLES: THE HISTORY OF DISPUTED ELECTIONS IN THE UNITED STATES (2015).

This extraordinary book is the definitive work on electoral recounts through the course of American history. Ned’s painstaking and careful research of these disputes from the birth of democracy forward is destined to stand as a go-to volume for a long, long time. But whether we are learning about the Buckshot War of 1838 or the armed conflict that was a part of a Gilded Age election in Maine, this is much more than “just the facts” reportage. Each piece of history is presented with care and nuance that makes for a set of compelling and informative stand-alone pieces.

At the same time, they do not stand alone, for this sweeping history also has a thesis. The best way to achieve a fair outcome in closely contested cases is to have resolution by a neutral tribunal. Ned demonstrates again and again that individuals can matter in the moment of these crucial challenges to democracy, but, his book aligns with the thesis that neutral tribunals are the key to fair resolution and, as importantly, to the legitimacy that comes with the perception of fair resolution. American democracy is not naturally equipped for such resolutions, Ned explains, because the framers did not foresee the rise of the two-party system. And so the book’s final section sets out a path forward, a means for introducing what the framer’s left out.