Unaccommodated: How the ADA Fails Parents

111 Pages Posted: 17 Sep 2021 Last revised: 31 Mar 2022

Date Written: August 1, 2021

Abstract

In 1990, Congress passed the Americans with Disabilities Act (ADA) to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Thirty years after this landmark law, discrimination and ingrained prejudices against individuals with intellectual disabilities—especially poor Black and brown parents with disabilities—continue. This ongoing discrimination is on stark display in family courts across the country, with devastating consequences for parents with intellectual disabilities and their families. Children who have parents with intellectual disabilities are eighty percent more likely to be removed from their homes and placed in foster care than other children, and, once in care, courts are three times as likely to permanently sever the parent-child relationship. Although technical assistance from the U.S. Departments of Justice and Health and Human Services in 2015 offered some hope of redress for these families, the disparities have not dissipated.

This Article makes a novel contribution to the literature by presenting a study of the treatment of ADA claims in both family and federal courts since the promulgation of the new technical assistance in 2015. It demonstrates that, despite promising federal intervention, both family and federal courts still fail to vindicate the rights of parents with disabilities, by sidestepping responsibility for parents’ claims under the ADA. If family courts apply the ADA at all, they tend to offer a diluted application of the statute. Often, they disavow the applicability of the ADA to the family court proceedings or direct parents to federal courts or other ill-suited venues for relief. Families fair no better in federal courts, which often find that the ADA claims have already been decided in family court, sometimes even after the family court has specifically refused to consider an ADA-based claim. Placing these state and federal decisions side-by-side lays bare how ostensibly neutral principles of federalism have the effect of preventing any forum from applying federal anti-discrimination law to parents with disabilities, harming these parents in the family regulation system. This transforms the ADA into an empty vessel for parents with intellectual disabilities.

For the ADA to fulfill its promise, parents with intellectual disabilities must have a viable legal avenue to enforce it. This Article offers concrete avenues to vindicate this promise of the ADA. In federal courts, parents with intellectual disabilities should be able to bring ADA-based claims without running afoul of federal doctrines that prevent review of state court decisions. And, in state courts, advocates and judges should either apply the ADA directly or use the ADA as the benchmark of what services and supports the state must be offer to avoid discriminating against parents with disabilities. More broadly, this Article calls for an intersectional reimagining of the disability rights movement and is the first to apply the concept of DisCrit to family regulation.

Keywords: disability, disability justice, disability rights, disability and critical race theory, family law, family regulation, discrimination, ADA

Suggested Citation

Lorr, Sarah H., Unaccommodated: How the ADA Fails Parents (August 1, 2021). California Law Review, Forthcoming, Brooklyn Law School, Legal Studies Paper No. 707, Available at SSRN: https://ssrn.com/abstract=3906817

Sarah H. Lorr (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
11201-3631 (Fax)

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