Faculty Scholarship Digest
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. (See Archives)
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, 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, 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 (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.
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