Faculty Scholarship Digest
Ruth Colker, Reflections on Race: The Limits of Formal Equality, 69 OHIO ST. L.J. 1089 (2008).
In Colker’s recently published book, When is Separate Unequal: A Disability Perspective, she provided a theoretical framework for her foundational and extensive work in disability law, employing an anti-subordination theory, developed from the race context, to explain when identical treatment was and was not appropriate in the disability context. Her disability work draws heavily in that model on empirical studies that demonstrate what arrangements lead to positive outcomes for the disabled and what arrangements do not. In this article, Colker returns to issues of race, applying her adapted methodology for disability issues to the school integration issue the Supreme Court recently faced in Parents Involved in Community Schools v. Seattle School District No. 1.
The article tracks the facts of the use of race by the two school systems and examines the empirical literature regarding “effective integration programs that are likely to lead to positive educational outcomes for minority children.” The article concludes that, far from not being narrow enough, as the Court’s formal equality, “color-blind” analysis determined, the race-conscious plans adopted by the school systems were in fact too narrow: that only earlier (i.e., kindergarten) and more extensive integration can effectively improve minority educational performance. Thus, Colker argues, “[f]rom an anti-subordination perspective, the courts have the racial equality model exactly backward.”
Ruth Colker, Speculation about Judicial Outcomes under 2008 ADA Amendments: Cause for Concern, 4 Utah L. Rev. 1029 (2010).
In this article, Ruth continues her path along the cutting-edge of empirical research regarding legal outcomes under the Americans with Disabilities Act. Prior research by Ruth and others, relying on appellate outcomes reported in Westlaw and Lexis, concluded that defendants prevailed in more than 90% of ADA cases and that a rigorous definition of “disability” was often the reason, and in 2008, Congress responded by amending the ADA to broaden the definition of disability. Yet appellate data is, of course, only the tip of the iceberg, and so, to get a better baseline read for the state of litigation prior to the 2008 amendments, Ruth (using research funds from her designation as University Distinguished Professor) unleashed a team of research assistants on PACER, the electronic court records system of the federal courts. Using PACER provided “a more extensive set of records than had previously been examined on a nationwide basis,” including not only cases that were not appealed, but the many cases that were voluntarily dismissed without official resolution (as settlements or otherwise).
Ruth’s study provided a number of important and interesting insights, though she is careful to qualify her observations because of the limited information available on PACER. For example, the reason for a voluntary dismissal (i.e., whether there was any kind of meaningful settlement) and sometimes even the basis for the ADA claim could often not be discerned. Indeed, while PACER does code for whether a case is brought under the ADA, many errors were discovered in that coding. With that important caveat in mind, however, the article explains that of cases that were actually brought, plaintiffs succeeded in at least achieving a settlement between 35% and 64% of the time, that the EEOC did not appear to achieve better results for plaintiffs than private attorneys, even though the EEOC skims off the strongest claims, and that the definition of disability played a very small role in defendant successes, so that, while the 2008 Amendments might create new plaintiffs, it is unlikely to change many outcomes among existing plaintiffs. The most outcome determinative problems faced by plaintiffs seemed to be failure to obtain private counsel (which often led to failure to effectively access the court system because of procedural hurdles) and issues over what constitutes a “reasonable accommodation.”
Ruth Colker, California Year in Review: 2013 Special Education ALJ Decisions, 34 J. Nat’l Ass’n Admin. L.J. 47 (2014).
One of Ruth Colker’s signature approaches to research is to closely examine a large set, typically a complete set or a complete set of those with published opinions over a designated period of time, in order to determine empirically (both by coding-and-counting and by qualitative analysis) how the statute or regulation actually operates in practice, and this article is another example of that approach. For this article, Ruth read seventy-four 2013 cases of California special education Administrative Law Judges. This followed a similar study Ruth conducted and published that examined ALJ decisions in the 2010-11 time period.
The resulting article is replete with insights. Perhaps not surprisingly, school districts win more than families, and families do better, much better, when they are represented by an attorney in front of the ALJ. Perhaps more surprisingly, when the students are represented by one parent, the results were significantly less favorable for the student when that parent was the mother than when it was the father. The conclusion that this difference results from bias against mothers was also supported by the limited weight the ALJ’s seemed to give maternal testimony. Also surprising was the success rate of students seeking an Independent Educational Evaluation (IEE) at public expense. Students prevailed almost two-thirds of the time---a much higher rate than Ruth found in her previous study, a difference she speculates may have been caused by a single California district court reversal of an ALJ on this issue during the intervening period which “may have caused California ALJs to be aware of the right of a parent to an IEE absent the school district’s ability to demonstrate that its evaluation was appropriate.” The power of a single decision to influence behavior is certainly suggestive. This is just a taste of the insights the study provides.
Ruth Colker, The Learning Disability Mess, 20 J. Gender, Social Policy & L. 81 (2011).
This article reviewing the history and current state of the law governing learning disabilities conveys great understanding of the law’s struggles in this area with brilliant concision. Beyond disability law itself, the article provides a wonderfully insightful case-study of many issues endemic to legal regulation, including the difficulty of precision, the interplay of law and politics, the challenges of federalism, the interplay between competing statutory mandates, the force of politics on law, and the challenges of constructing legal rules in relation to nonlegal disciplines, in this case, psychology.The article traces the history of the term “learning disability” in both legal and psychological literature. Under “discrepancy” approaches, diagnosis requires finding a gap between predicted academic performance (aptitude) and actual performance (achievement). Under “response to intervention” approaches, the test centers on whether learning performance deficiencies respond to interventions. Discrepancy approaches have created biased outcomes because of the bias in many standardized tests—with the result that mandated assistance has flowed to more privileged children at the expense of the less privileged—and, as a completely separate matter, have proven costly to administer. Response to intervention approaches, on the other hand, can take the “disability” variable out of the equation entirely and have not been completely approved (at least up until the DSM V) by the psychological community. The mandates of the federal disability acts and the great discretion states have in choosing how to implement them, covered compellingly in the article, have created a situation for which the word “mess” is a gross understatement that might be laughable were so much not at stake, including admission to college and graduate school. Ruth offers no direct solution to the perhaps unsolvable problem of creating a single, unified definition of “learning disability.” Instead she situates the “mess” as a “byproduct of fixation on high stakes testing.” The way out of the mess, she suggests, is not to create better diagnostics, but rather to make less depend on the “learning disability” label, first by making the extra resources available based on need rather than disability, and second by eliminating the time-pressured test situations, particularly on entrance and proficiency exams, that unnecessarily bring the issue to the fore.
Ruth Colker, Response: Hybrid Revisited 100 G’TOWN L.J. 1069 (2012).
The Hybrid referenced in the title is Ruth’s landmark 1996 book, HYBRID: BISEXUALS, MULTIRACIALS, AND OTHER MISFITS UNDER AMERICAN LAW, in which she addressed the subordination harms that result from binary categories (gay/straight; white/black) that fail to reflect the real world and suggested strategies through which the law could better handle these issues, given the inevitable necessity of some categorizations. This piece is an invited response to a recent article that suggests a new framework for sexuality that accounts for both “specific orientation” (based on the sex of one’s specific partner) and “general orientation” (based on the sex toward which one is generally attracted), which its author claims better accounts for bisexuals.
Ruth’s response reveals much that is missing in this new framework, while concisely providing an insightful discussion into sexuality and the law. The article covers the relevance of “resisters” (people who do not categorize themselves in terms of sexual orientation), “tilters” (people whose general orientation may lean in one direction or the other but are all lumped together as “bisexual” in this new framework), and, most importantly, the socialization aspect of sexual orientation, which Ruth carefully explains with examples of sexual orientation defined in relationship to society. With regard to each of these issues, the article carefully articulates the point and documents its significance with regard to actual legal issues. The article concludes that the relation between sexual orientation and society—the socially constructed portion of sexuality—“must play a crucial role in a sexual-orientation framework if we are to develop adequate legal responses to societal mistreatment and coercion on the basis of sexual orientation.”
Ruth Colker, Special Education Complaint Resolution: Ohio, 29 Ohio St. J. on Disp. Resol. 371 (2014).
Families contending that their child’s school district is not complying with the Individuals with Disabilities Act (“IDEA”) have two main pathways for asserting their claim. The first is to seek an impartial due process hearing with the child’s school, an administrative remedy that is a mandatory precursor to seeking relief in court. Such due process hearings have received scholarly attention, including extensive study by Professor Colker. The second pathway is a state administrative complaint, which the state resolves without a hearing. For this article, Ruth read and assessed eighty-one Ohio administrative complaints in order to compare the outcomes from that process to that obtained through due process hearings.
In Ohio, the article concludes, the administrative process is more professional, more likely to lead to some remedy for the family and faster. On the other hand, the administrative process is the “last word,” there is no judicial review, and the broadest forms of relief are unlikely to be awarded through the administrative process. The article closely analyzes the different outcomes in administrative and due process proceedings and the reasons for those differences, some of which are particular to the state level structure of these processes, making broader generalization difficult.
Ruth Colker, Disabled Education, Rethinking Schools, Fall 2013, at 20.
Rethinking Schools is a nonprofit advocacy organization dedicated to improving public education through education activism. It was started in the mid-1980’s by a group of Milwaukee-area teachers who wanted to improve education in their classrooms and schools. Rethinking Schools is now a prominent publisher of educational materials including their magazine which bears the same name. Rethinking Schools emphasizes problems facing urban schools, particularly issues of race. Professor Ruth Colker’s article, Disabled Education, fits perfectly here. Writing for a non-legal audience, Colker presents the message of her new book, also titled Disabled Education, that the special education processes are heavily biased against children whose parents are poor, children of color, and children who are learning the English language. While recognizing the importance of freeing children from the institutionalized treatment of the past, Colker questions the educational inequity that continues to steer the most vulnerable children toward the most stigmatizing and underfunded special education categories. Colker continues to promote a national dialogue on how to improve education for all children, including those with disabilities.
Ruth Colker, Politics Trump Science: The Collision Between No Child Left Behind and the Individuals with Disabilities Education Act, 42 J.L. & Edu. 585 (2013).
In this article, Professor Ruth Colker explains how two statutes, the Individuals with Disabilities Education Act (IDEA) and No Child Left Behind (NCLB), intended to help children with disabilities actually are on a collision course due to a failure to properly consider the state of scientific research on learning disabilities. Research scientists now conclude that it is crucial to have the earliest possible intervention for students with learning disabilities. This is due to the “Matthew Effect” where unremediated learning disabilities grow more profound over time. While the purpose of the IDEA was to ensure students with disabilities receive an appropriate education under an individualized education plan, the NCLB was designed to make school districts accountable for progress toward state assessment standards. In 2004, Congress moved to align these two statutes so that school districts could save money by combining the resources of both statutes to provide students extra assistance. Unfortunately, the approach used to determine which students have disabilities, called Response to Intervention (RTI), classifies students as disabled only after they have participated in an increasingly intense intervention program and still do not make grade level expectations. This approach delays the type of individualized intervention that research shows is essential to avoid the Matthew Effect. Scientific research now discredits the RTI model and supports use of diagnostic instruments before the second grade to identify children before they fall behind in reading. This means IDEA intervention is necessary before a child is found eligible for NCLB intervention because he or she did not attain a proficient score on a state assessment. Colker calls on Congress to decouple the two statutes and adopt a system under the IDEA that channels remediation resources based upon scientific evidence, not politics.
Ruth Colker, Religious Accommodations for County Clerks?, 76 OHIO ST. L.J. FURTHERMORE 87 (2015), http://moritzlaw.osu.edu/students/groups/oslj/files/2015/10/Vol.-76-87-101-Colker-SCR-Essay.pdf.
The Ohio State Law Journal created Furthermore, its online-only publication, “to promote dialogue regarding current legal topics.” Ruth amply furthers that goal with this timely discussion of the legal issues surrounding a Kentucky county clerk’s refusal to issue marriage licenses in the wake of Obergefell v. Hodges. The clerk, Kim Davis, declared that her Christian beliefs forbade issuing marriage licenses to same-sex couples. To accommodate those beliefs, Davis first refused to issue licenses to any couple; when a federal district court ordered Davis to resume issuing certificates, she unilaterally changed language on the certificate form. Ruth deftly analyzes both Davis’ religious freedom claim (based on the Kentucky Religious Freedom Act) and the Establishment Clause implications of accommodating Davis’ claim. Ruth concludes that, although Davis might be able to establish a claim under the state statute, successful accommodation is unlikely. Any attempt to “facilitate Davis’ views on the marriages of same-sex couples [would put] the state, itself, in the position of furthering an unconstitutional purpose.” As Ruth notes, “[s]ome jobs in our society conflict with people’s religious or moral beliefs.” The Constitution promises religious freedom, but it does not guarantee access to every job for every person. Just as a “Sabbath-observing Jew cannot work at a job with Saturday-only hours,” the job of county clerk may not be “suitable for someone opposed to same-sex marriage on religious grounds.”
Ruth Colker, WHEN IS SEPARATE UNEQUAL? A DISABILITY PERSPECTIVE (Cambridge Univ. Press 2009).
Colker is widely regarded as the founder of the field of disability studies, in which many other scholars now also toil, and her disability work has covered many matters — instructional, doctrinal, empirical, constitutional, and procedural. In this very accessible volume, Colker provides a theoretical viewpoint for disability law. Her thesis is that disability law and policy should be driven by an anti-subordination understanding of equality, as opposed to the dominant formal equality model. In this view, “[a] lack of power rather than different treatment . . . is the root problem of inequality.” One aspect of this argument that makes it both powerful, but controversial (even amongst disability advocates), is that its justifications sometimes depart from equal-treatment, integrationist solutions. Hence the negative pregnant of the book’s title; Colker argues that in the disability context, sometimes separate is more equal. The book’s first two chapters establish this theoretical framework, explaining its origins and placing it in the disability context. Succeeding chapters examine the theory in the context of employment, K-12 education, testing (law school testing in particular) and voting. A final chapter takes Colker’s conclusions about the limits of formal equality in the disability context and applies them back to the context of race.
Throughout the book, Colker supports her theoretical perspective by rallying empirical evidence. She argues that the anti-subordination approach is better because it more often produces better outcomes, and because, more fundamentally, it allows consideration of such outcomes. Colker’s use of her framework to argue where Congress and, especially, courts went wrong with the ADA and the IDEA provides an insightful critique of existing doctrine and, agree or disagree, a powerful alternative vision. Her chapter on the LSAT and law school exams includes a great deal of history and empirical information about both and is of interest to our community even apart from the disability discussion. And, as to the “extra time” approach in use throughout higher education, Colker explains why, though better than nothing, evidence indicates it falls well short of being a “solution.”
Ruth Colker (w/Julie K. Waterstone), SPECIAL EDUCATION ADVOCACY (LexisNexis 2011).
This book is the result of a collaborative effort led by Ruth to create a set of materials designed to teach advocacy on behalf of children in the special education context. Noting a need for such materials, Ruth approached clinicians teaching in the field about participating in developing a book along those lines. She received an overwhelming response, and this book is the result. Ruth and her co-author edited all the chapters, and Ruth authored two chapters herself, but eight other individuals joined as authors of discrete chapters. As noted, the book takes an advocacy perspective in the hope of teaching the keys “to successful advocacy on behalf of children with special needs” with an emphasis on “the everyday tools” of such advocacy: “statutes, regulations and general material from educational psychology.” The result is a how-to book that is suitable for clinical instruction and for practitioners.
Chapters cover such matters as how to start a case, IEP’s, early intervention services, school discipline, remedies and interaction with the delinquency system. It is a truly impressive integrated compilation of valuable material, gathered ingeniously from truly expert sources in the teaching and practice of such advocacy. Ruth’s chapters include a brief history of the treatment of special needs children in the educational system, from the “no education at all” model of one hundred years ago, to the establishment of today’s basic framework by Congressional action in 1974, through the subsequent Amendments that have left an IDEA that provides substantial protections, albeit through complicated procedures. Ruth’s other solely authored chapter covers educational evaluations and assessments, which are crucial to IDEA compliance so that understanding “how to read and interpret test scores” and discuss them in the context of different categories of disabilities under the IDEA (and the ADA and the Rehabilitation Act) are an important piece of special education representation.
Ruth Colker, Disabled Education (2013).
In her latest book, Ruth Colker exposes the flaws of the Individuals with Disabilities Education Act (IDEA) that limit its effectiveness in providing free and appropriate education to all children, especially poor and minority children. Colker draws on her experience—as a mother, an advocate, and as a disability scholar—to demonstrate how the IDEA falls short of providing the free and appropriate education for all children that it promised. She provides a thorough legislative history of the IDEA including the revelation that experts predicted at the time of enactment that the statute would lead to increased stigmatization and segregation. But the real strength of this work comes from the human narrative. Colker’s case studies allow the reader to see the difficulties families have faced in an attempt to obtain an appropriate education for their children. One common theme emerges. We have created a system so cumbersome, bureaucratic, and cold that even the “success” stories are shocking. The road to “free and appropriate education” is littered with impoverished and desperate parents, beleaguered counsel, and innocent children. While Disabled Education certainly exposes the defects in our special education system, it also offers suggestions for improvement. Chief among Colker’s suggestions is for Congress to end the chronic underfunding of special education and make good on its promise to provide at least 40% of the costs of these programs.
Ruth Colker (w/Adam A. Milani), FEDERAL DISABILITY LAW IN A NUTSHELL (West, 4th ed. 2010).
Ruth took on the revision of this 500 page treatment of federal disability law following the retirement and passing of the authors of the previous editions. The last edition was published in 2004, and a great deal has happened in disability law since then, including the passage of the Individuals with Disabilities Education Act in 2004 (a five-chapter subject) and the passage of the ADA Amendments Act of 2008, which was designed to “reverse various court decision that had narrowly construed the coverage of the ADA.” Federal disability law provides substantial substantive rules related to employment, education, and access to public accommodations and transportation for the tens of millions of Americans with physical or mental disabilities (Congress estimated the number at 43 million in 1990, when the Americans with Disabilities Act was passed). In short, this is a broad area of law with the complexity one would expect, pervading every level of society and intersecting with many areas of law, but also a field of relatively recent vintage, still young and evolving at 20 years. No one is more expert in this area than Ruth, and this volume provides the answers to literally hundreds of questions that might be posed both by current students and by those of us (still the majority in practice) who went to law school before passage of the ADA.
Ruth Colker, THE LAW OF DISABILITY DISCRIMINATION (LexisNexis 7th Ed. 2009).
In this latest edition of her leading casebook, Ruth brings the text up-to-date in this field of very rapid change, including significant amendments to Title I (employment) and Title V (miscellaneous provisions) of the Americans with Disabilities Act, and the rapid development in both regulations and case law. In addition to a traditional presentation of cases, notes and problems, the text addresses issues on the frontier of disability law — the significant questions and issues Ruth expects will soon confront courts — with hypotheticals designed to facilitate examination of these questions. The text provides the basis for an in-depth understanding of the ADA and other significant disability laws.
Ruth Colker (w/ Paul D. Grossman), The Law of Disability Discrimination Handbook: Statutes and Regulatory Guidance (8th ed. 2013).
Ruth Colker (w/ Paul D. Grossman), Teacher’s Manual: The Law of Disability Discrimination (8th ed. 2013).
Professor Ruth Colker and her coauthor Paul Grossman (Hastings) have completed two companion works to complement the eighth edition of their casebook, The Law of Disability Discrimination. The first is a new Teacher’s Manual. This Teacher’s Manual is stuffed full of things an instructor can really use. It starts with a lesson on language and provides an excellent tool for the teacher to sensitize students to respectful ways of speaking about individuals with disabilities, such as “people with disabilities” instead of disabled people (the “people first” principle). There are helpful links to videos throughout the manual. But the real gift of this work is the inclusion of experiential and simulation activities. Anyone who has been in our auditorium knows the “ADA Auditorium Dilemma” is grounded in more fact than fiction. There are also simulated exercises regarding advocacy in the context of an IEP and a role-playing exercise involving manifest determination review. The other companion book, The Law of Disability Discrimination Handbook: Statutes and Regulatory Guidance, is a statutory supplement that provides needed reference material. The Handbook includes the ADA as amended. In addition, the authors have included regulations, section-by-section analysis, and technical assistance promulgated by the EEOC and DOJ. Besides domestic law, it also contains the UN Convention on the Rights of Persons with Disabilities.